ASSET PURCHASE AGREEMENT

Exhibit 10.1

Seagate Contract Number 64223

ASSET PURCHASE AGREEMENT

This Asset Purchase Agreement (the “Agreement”) is effective as of August 13, 2007, (“Effective Date”) by and between ST. BERNARD SOFTWARE, INC. , a Delaware corporation (“SBS”), located at 15015 Avenue of Science, San Diego, California 92128 and EVAULT, INC. (“Buyer”), a Delaware corporation located at 6121 Hollis Street, Emeryville, California 94608 (each a “Party” and collectively the “Parties”).

RECITALS

A. SBS is engaged in the business of the development of backup software applications and utilities (the “Business”). SBS has developed and is the owner of the Product (as defined herein).

B. Buyer desires to purchase and acquire certain assets, properties and contractual rights of SBS used in connection with the Business, and SBS desires to sell, transfer, assign and convey such assets, properties and contractual rights to Buyer.

In consideration of the mutual promises contained herein and intending to be legally bound, the Parties agree as follows:

ARTICLE 1.

DEFINITIONS

1.1 Product or Products . “Product” or “Products” means SBS’ Open File Manager software application and SBS’ Continuous Data Protection software application and any and all derivative product technologies related thereto, including, without limitation, all other software, programs, applications, modules and components thereof, in all forms, including the Source Code, Object Code, all related documentation, all prior and current versions, improvements, enhancements, upgrades, corrections, additions, modifications, replacements, and new applications to any of the foregoing (including, for avoidance of doubt, DeploySafe and MARS); and all Intellectual Property Rights in any of the foregoing. In no event shall “Product” include SBS’ on-demand service, iPrism and/or ePrism products, nor any open source materials or software included in or used with the Product. To the extent that the Product contains code that is also included in other SBS products relating to non-core functionality, such as for license key generation and other administrative functions associated with use of the Product, notwithstanding any provision in this Agreement to the contrary, SBS retains all Intellectual Property Rights to such code and grants to Buyer a perpetual, non-exclusive, irrevocable license to continue to use, distribute, and make derivative copies of such code as part of the Product.

1.2 Intellectual Property Rights . “Intellectual Property Rights” means all of the following in any jurisdiction throughout the world, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) any and all United States, international and foreign patents and/or patent applications which may be granted on or claim priority of (or serve as the basis for a priority claim by) and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof, together with all priority rights and counterpart applications under any existing or future international patent conventions, agreements or treaties; (ii) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology, technical information, data and customer lists, engineering procedures and all documentation relating to any of the foregoing; (iii) all trademarks, service marks and trade names, domain names and registrations and applications therefor, and all other rights corresponding thereto throughout the world; (iv) all copyrights, copyrights registrations and applications therefor, and all other rights corresponding thereto throughout the world; (v) all industrial designs and any registrations and applications therefor throughout the world; (vi) all software, including but not limited to Source Code; (vii) all works of authorship, databases and data collections and all rights therein throughout the world; and (viii) any similar or equivalent rights to any of the foregoing anywhere in the world, together with the goodwill and the business appurtenant thereto and the right to sue third parties for infringement (including but not limited to damages and injunctive relief) of any of the foregoing, and any current or future right to receive royalties based on any of the foregoing, whether choate or inchoate, known or unknown, contingent or non-contingent.

1.3 SBS Intellectual Property Rights . “SBS Intellectual Property Rights” means all Intellectual Property Rights owned or used by SBS that are related to, or used in connection with, the Products.

1.4 SBS Materials . “SBS Materials” means (i) any application program interface, assemblers, compilers and other authoring tools created by SBS or owned by SBS and necessary to modify the Product as well as any development tools created by SBS or owned by SBS and used in the development of the Product, including all comments, in text and machine readable form, (ii) documentation for the Product, including user manuals, installation guides, marketing materials, product awards, Customer references, competitive analyses, sales training materials, white-papers, tech-notes, help files and marketing collateral, architectural and design documentation, in SBS’ possession and reasonably necessary or helpful in connection with development, support, marketing or sales of the Product, (iii) know-how related to the use and modification of the Source Code as reflected in such materials, (iv) software tools, data test scripts, test plans, automated test tools, designs and results that SBS currently uses in connection with development or support of the Product, (v) SBS’ interest in any software licenses related to the Product, (vi) Source Code; (vii) Customer Relations Materials; and (viii) Electronic Materials.

1.5 Customer Relations Materials . “Customer Relations Materials” means any data (whether in physical or electronic format) regarding past, existing, or potential customers for the Product, including but not limited to information maintained in any lead generation or customer relationship management systems of SBS.

1.6 Electronic Materials . “Electronic Materials” means any electronic data, databases, or content used in the promotion of the Product or in distribution and optimization of the Product.

1.7 Code . “Code” means computer programming code, including both Object Code and Source Code.

1.8 Object Code . “Object Code” means Code in binary form, and includes header files of the type necessary for use or interoperation with other computer programs. It is directly executable by a computer or other electronic device after processing or linking, but without compilation or assembly. Object Code is all computer programming code other than Source Code.

1.9 Source Code . “Source Code” means Code in a form which when printed out or displayed is readable and understandable by a programmer of ordinary skills. It also includes related source code level system documentation, comments and procedural code. Source Code does not include Object Code.

1.10 Open Source Materials . “Open Source Materials” means all software or other material that is distributed as “free software,” “open source software” or under similar licensing or distribution terms (including but not limited to the GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), BSD licenses, the Netscape Public License, the Sun Community Source License (SCSL), the Sun Industry Standards License (SISL) and the Apache License).

1.11 Encumbrance . “Encumbrance” means, with respect to any asset, any mortgage, deed of trust, lien, pledge, charge, security interest, title retention device, collateral assignment, adverse claim, restriction or other encumbrance of any kind (other than licenses made in the ordinary course of business consistent with its past practices) in respect of such asset (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

1.12 Knowledge . “Knowledge” means, with respect to any Party, the actual knowledge of persons responsible for the relevant subject matter for such Party and the knowledge that any person who is in a management or executive position with such Party would have assuming due inquiry, given their respective role, into the facts related to such matters.

ARTICLE 2.

ASSET SALE, ASSIGNMENT OF CUSTOMER BASE & LICENSE

2.1 Assets . Effective as of the Closing, subject to the terms and conditions of this Agreement, SBS sells, transfers, irrevocably assigns and delivers to Buyer, and Buyer purchases from SBS, free and clear of any Encumbrances, all of SBS’ right, title, and interest worldwide in and to (i) the Product, (ii) the Assumed Contracts (defined below), (iii) the SBS Materials, (iv) all SBS Intellectual Property Rights, (v) all claims of SBS against third parties relating to the Purchased Assets, whether choate or inchoate, known or unknown, contingent or noncontingent, (vi) all data and information that is collected from, or on behalf of, customers of SBS who are party to the Assumed Contracts (the “Customer Base”), the OEM Partners and any Lead, including to the extent that receipt of such information would not violate any applicable Law, (vii) all routing and billing information and components used in connection with the Assumed Contracts, and (viii) all other tangible or intangible asset of SBS used in the Business and necessary for the operation or use of the Product (collectively the “Purchased Assets”). The Purchased Assets are set forth on Schedule 2.1 hereto. If any moral rights in the Product cannot (as a matter of law) be assigned by SBS to Buyer as provided above, then SBS waives the enforcement of such moral rights and all claims and causes of action of any kind against Buyer with respect to such moral rights. SBS shall deliver or make available to Buyer the SBS Materials promptly following the Effective Date, and no event later than five (5) days following the Closing Date. No ownership rights are granted with respect to any SBS trademarks not related to the Product that may be embedded in the Product or the SBS Materials, including trademarks relating to SBS’ on-demand services, iPrism and ePrism products (“Non-product Marks”). SBS hereby grants to Buyer a perpetual, royalty free license to the Non-product Marks solely to allow Buyer to continue to use, distribute, copy, sublicense, and produce the Product with the Non-product Marks embedded.

2.2 Liabilities . Buyer will assume and agrees to pay, perform and discharge all obligations and liabilities of SBS arising under the Assumed Contracts after the Closing Date (the “Assumed Liabilities”), other than (i) any liability or obligation to the extent relating to or arising from any breach, or event, circumstance or condition that with notice, lapse of time or both would constitute or result in a breach, by SBS prior to the Closing Date of any of its obligations thereunder, (ii) any warranty claims of customers relating to sales of the Product prior to the Closing Date, and (iii) any obligation or liability of SBS under any Assumed Contract other than the obligation to deliver software support and maintenance services that have already been invoiced prior to the Closing Date. For the purposes of this Agreement, “Assumed Contracts” shall mean (a) any customer or end user license agreements that SBS has entered into for the Product or standard end user license agreements which are created via shrink wrap or click wrap customer acknowledgment mechanisms relating to acceptance or installation and use of the Product created in the ordinary course of business in connection with SBS’ acceptance and fulfillment of orders for the Product; (b) any customer or end user license agreements that are not listed on Schedule 2.1 that Buyer, in its sole discretion, assumes after the Closing Date; (c) contracts and agreements related to the Product with Channel and OEM Partners, excluding Aggregated Contracts but including Amended Contracts; and (d) contracts and agreements related to the Product with OEM Partners that are not listed on Schedule 2.1 that Buyer, in its sole discretion, assumes after the Closing Date. All present customers comprising the Customer Base, all present OEM partners who distribute or sell the Products (the “OEM Partners”), all reseller partners who have distributed or sold the Products and all known potential customers (“Leads”) as of the Effective Date are listed on Schedule 2.2, and an updated list of all known Leads as of the Closing Date will be delivered to Buyer as soon as reasonably practicable following the Closing Date and in any event within ninety (90) days following the Closing Date (the “Transition Period”). Copies of any documents or records relating to such Customer and OEM Partners (along with originals of contracts, if available) will be delivered to Buyer as soon as reasonably practicable following the Closing Date and in any event prior to the expiration of the Transition Period. SBS shall further deliver to Buyer all data about the Customer Base that SBS maintains in its customer relationship database as soon as reasonably practicable following the Closing Date and in any event prior to the expiration of the Transition Period. SBS shall further deliver all Source Code comprising any portion of the SBS Intellectual Property

to Buyer, in a format as may be reasonably requested by Buyer, within two (2) business days following the Closing Date. Immediately following the transfer to Buyer of all of the Purchase Assets described in Section 2.1 and this Section 2.2, SBS shall deliver to Buyer or destroy copies of Purchase Assets in SBS’s possession that are in addition to copies delivered to Buyer as part of the Closing or during the Transition Period, whether such copies are in paper form, on computer media or stored in another form; provided, however, that SBS may retain and use copies of financial books and records relating to the activities associates with the Purchased Assets prior to the Closing. Except for the Assumed Liabilities, Buyer will not assume, agree to pay, perform or discharge or in any way be responsible for any debts (including interest and/or penalties thereon), liabilities or obligations of SBS of any kind or nature whatsoever, whether fixed or unfixed, known or unknown, absolute or contingent, asserted or unasserted, choate or inchoate, liquidated or unliquidated, or secured or unsecured (the “Excluded Liabilities”). The Excluded Liabilities shall include, without limitation, (i) any liabilities or obligations (whether assessed or unassessed) of SBS for Taxes arising by reason of the transactions contemplated by this Agreement, (ii) any liabilities or obligations of SBS related to use and sales taxes due with regard to the transactions contemplated by this Agreement, and (iii) any and all obligations of SBS related to the employment, termination or compensation of any employee, consultant or service provider of SBS, including but not limited to, any taxes or employment withholding obligations, compensation or benefits claims or workers’ compensation benefits.

ARTICLE 3.

LICENSE

Buyer grants to SBS a perpetual, non-exclusive, non-transferable license to continue the use of SBS’ Open File Manager software as used on SBS servers and personal computers as of the date hereof; provided that this license shall not extend to more than 20 licenses. Buyer shall have no obligation to SBS to provide maintenance services with respect to the SBS’ File Manager software.

ARTICLE 4.

SUPPORT AND TRAINING

4.1 Support . SBS is responsible for supporting the Product and the Customer Base from the Effective Date through the Closing Date at no cost to Buyer. SBS shall continue to operate the business related to the Product and Customer Base, and to support the Product and Customer Base, in the same manner that it provided such support in the year prior to the Effective Date.

4.1.1 After the Closing Date, SBS shall provide links to Buyer’s website for the Product on SBS’ website for a period of twelve (12) months following the Closing Date. As of the Effective Date, SBS shall refer (via a communication mechanism to be mutually agreed upon) all Product inquiries to Buyer. SBS shall further terminate any Product marketing efforts as of the Effective Date, to the extent terminable, or shall implement procedures for referring Product specific leads received by SBS after such date to Buyer.

4.1.2 Prior to the Closing Date, SBS shall not invoice for new renewals on SBS form invoices other than those renewals set forth on Schedule 4.1.2 hereto prior to the Closing Date.

ARTICLE 5.

CONSIDERATION; POST CLOSING PAYMENTS

5.1 Purchase Price . In consideration of for the sale to Buyer of the Purchased Assets, Buyer shall assume the Assumed Liabilities and pay to SBS six million eight hundred seventy five thousand dollars ($6,875,000) (the “Purchase Price”), which shall consist of (i) six million, three hundred seventy five thousand dollars ($6,375,000) (the “Closing Consideration”) to be paid to SBS at the Closing in cash by wire transfer of immediately available funds and (ii) five hundred thousand dollars ($500,000) (the “Holdback Amount”) to be paid to SBS subject to the provisions of Article 8 hereof.

5.2 Taxes . SBS shall be responsible for paying, shall promptly discharge when due, and shall reimburse, indemnify and hold harmless Buyer and any Buyer subsidiary from, any sales or use, transfer, real property gains, excise, stamp or other Taxes which are in the nature of sales, use or property Tax resulting from the sale of Purchased Assets and the assumption of the Assumed Liabilities contemplated by this Agreement. Upon the request of SBS, Buyer shall provide reasonable cooperation to SBS in enabling SBS to claim any available exemptions from federal, foreign, state and local sales, use, and value-added Taxes that could result from the sale of Purchased Assets contemplated hereunder; provided, however, that nothing in the foregoing shall require Buyer or any Buyer subsidiary to discharge such Taxes unless Buyer or such Buyer subsidiary is reimbursed contemporaneously with the discharge of any such Taxes. Buyer and SBS agree to cooperate to the extent commercially reasonable and legally permitted to minimize any transfer Taxes. For purposes of complying with the requirements of Section 1060 of the Code, the total consideration for the Purchased Assets, as determined for Tax purposes, shall be allocated among the Purchased Assets in accordance with fair market value of the Purchased Assets as provided in the purchase price allocation schedule to be prepared jointly by the parties within 30 to 60 days post Closing (the “Purchase Price Allocation Schedule”). Each of Buyer and SBS agrees to prepare its federal, state and foreign income Tax Returns for all current and future tax reporting periods and file Form 8594 (and corresponding state forms) with respect to transfer of the Assets to Buyer in a manner consistent with such allocation. If any state, federal or foreign taxing authority challenges such allocation, the party receiving notice of such challenge shall give the other prompt written notice of such challenge, and the parties shall cooperate in good faith in responding to it in order to preserve the effectiveness of the allocation. Buyer shall be entitled to deduct and withhold from any payment made under this Agreement such amounts as may be required to be deducted and withheld under the Tax Laws of the United States, any state, or any political subdivision of either. To the extent amounts are so withheld and paid to any appropriate taxing authority, Buyer shall be treated as though it had paid that amount directly to the party entitled to receive such payment.

5.3 Post Closing Payments .

5.3.1 OEM Revenue Paid to SBS Following the Closing . Following the Closing Date, SBS will pay to Buyer, within five (5) Business Days following the end of the calendar quarter in which the Closing occurs, the Pro Rata Portion (as defined below) of the revenue received by SBS during such calendar period pursuant to those OEM contracts set forth on Schedule 2.1 hereto that is attributable to the period of such calendar quarter (the “OEM Revenue Payment”). For purposes of this Section 5.3.1, “Pro Rata Portion” shall be calculated as a fraction, the numerator of which is the number of days that elapse between the Closing Date and the last day (including the last day) of the calendar period in which the Closing takes place and the denominator of which is the total number of days in such calendar period.

5.3.2 Reimbursement of Selling Costs Related to OEM Revenue . SBS shall be entitled to deduct and retain from the OEM Revenue Payment made to Buyer pursuant to Section 5.3.1 above, an amount to compensate SBS for Buyer’s portion of the selling costs related to the OEM Revenue Payment received by Buyer pursuant to Section 5.3.1 above during the calendar quarter in which the Closing occurs pursuant to those OEM contracts set forth on Schedule 2.1 hereto equal to the Reimbursement Payment (as defined below). For purposes of this Section 5.3.2, the “Reimbursement Payment” shall be an amount equal to 25% multiplied by the each OEM Revenue Payment; provided, however, that the aggregate of all Reimbursement Payments hereunder shall not exceed $62,500.

5.3.3 Software Maintenance Fees Collected by SBS . Following the Closing Date, SBS will pay to Buyer, within five (5) Business Days following the end of each calendar month following the Closing Date, seventy percent (70%) of all software maintenance fees collected by SBS pursuant to any Assigned Contract for any maintenance renewals that start after the Closing Date but that were pre-billed by SBS on or prior to the Closing Date, including but not limited to, those pre-bill amounts set forth on Schedule 5.3.3 hereto.

5.3.4 Inspection of Records . The recipient of any payment to be made pursuant to Section 5.3.1, 5.3.2 and 5.3.3 above shall be given all such access as they may reasonably require during the payor’s normal business hours (or such other times as the parties may agree) to those books and records of the payor in the possession of, and/or under the control of, the payor, and access to such personnel or representatives of the payor as they may reasonably require for the purposes of resolving any disputes or responding to any matters or inquiries raised concerning the amount of such payments.

ARTICLE 6.

CLOSING; CONDITIONS TO CLOSING; TERMINATION

6.1 Closing Date . The closing of the transactions contemplated hereby (the “Closing”) shall take place at the offices of Heller Ehrman LLP, 275 Middlefield Road, Menlo Park, California 94025 on the earliest practicable business day (the “Closing Date”) after the satisfaction or waiver of the Closing conditions set forth in Section 6.2 hereof or at such other place and time as the Parties may mutually determine.

6.2 Conditions to Closing .

6.2.1 Conditions to Obligation of Buyer . Buyer’s obligation to purchase the Purchased Assets and to take the other actions required to be taken by Buyer at the Closing is subject to the satisfaction, at or before the Closing, of each of the following conditions (any of which may be waived by Buyer, in its sole discretion, in whole or in part):

(a) Buyer shall have received a certificate of the Chief Executive Officer of SBS dated as of the Closing Date certifying that (i) the representations and warranties set forth in Section 7.2 of this Agreement, individually and collectively, must have been accurate in all material respects as of the Effective Time and must be accurate in all material respects as of the Closing Date as if made on the Closing Date, (ii) SBS has performed and complied in all material respect with all of its agreements, covenants and conditions required by this Agreement to be performed or complied with by it prior to or at the Closing, and (iii) no legal proceeding has been commenced or threatened involving any challenge to, or seeking damages or other relied in connection with any of the transactions contemplated by this Agreement or that questions the validity of the Intellectual Property or with respect to the Product.

(b) SBS shall have executed and delivered to Buyer the bill of sale in the form attached hereto as Exhibit A (“Bill of Sale”) with such changes as Buyer and SBS shall mutually agree;

(c) Buyer shall have received a certificate of the Secretary of SBS dated as of the Closing Date certifying that (i) SBS’s certificate of incorporation, (ii) SBS’s Bylaws, and (iii) the board resolutions of SBS approving the Agreement and the transactions contemplated hereby are true, correct and complete and have been duly authorized by SBS’s board of directors.

(d) A certificate of good standing of SBS from the Secretary of State of the State of Delaware dated as of three business days prior to the Closing Date.

(e) Buyer shall have received evidence satisfactory to Buyer that all Encumbrances of record or that are otherwise known to SBS to which any of the Purchased Assets are subject or by which any of the Purchased Assets are bound shall have been removed. „!

(f) (i) Buyer shall have received an executed employment offer letter (including, without limitation, the related Confidentiality and Assignment of Inventions Agreement) from each person identified on Schedule 6.2.1(f) hereto , and (ii) SBS shall have delivered to Buyer copies of employment resignation letters from each person identified on Schedule 6.2.1(f) hereto pursuant to which each such person resigns his or her employment with SBS effective immediately prior to the Closing.

(g) SBS must have delivered to Buyer in form reasonably acceptable to Buyer, all other such certificates, instruments or documents as required by this Agreement.

(h) SBS shall have executed and delivered to Buyer the transitional services agreement in the form attached hereto as Exhibit B (the “Transitional Services Agreement”), with such changes as Buyer and SBS shall mutually agree.

(i) SBS shall have executed and delivered to Buyer the intellectual property assignment agreement in the form attached hereto as Exhibit C .

(j) There shall not be pending any claim, suit, arbitration or other adversarial proceeding before any court, agency, arbitral tribunal, or registration authority in any jurisdiction either alleging that the use of the Products or the SBS Intellectual Property Rights infringe any Intellectual Property Rights of any third party, or challenging the ownership, use, validity, enforceability or registrability of any SBS Intellectual Property Rights.

6.2.2 Conditions to Obligation of SBS . SBS’s obligation to sell the Purchased Assets and to take the other actions required to be taken by SBS at the Closing is subject to (i) the payment at the Closing of the Closing Consideration by Buyer to SBS in accordance with the wiring instructions provided to Buyer by SBS not less than two (2) business days prior to the Closing, and (ii) SBS’s receipt of the Transitional Services Agreement duly executed by Buyer.

6.3 Termination . This Agreement may be terminated at any time prior to the Closing: (i) by mutual written consent of Buyer and SBS, (ii) by Buyer and SBS if, without fault of the terminating party, the Closing shall not have occurred on or before August 31, 2007, (iii) by Buyer, if SBS shall be in material breach of its representations, warranties, covenants or agreements set forth in this Agreement, which breach is not cured by the party in breach within 10 calendar days following receipt of written notice of such breach or failure to perform from Buyer, (iv) by Buyer or SBS if any governmental entity shall have a final nonappealable order or injunction restraining, enjoining or otherwise prohibiting the transactions contemplated by this Agreement, provided that such right of termination shall not be available to any party if such party shall have failed to take reasonable efforts to prevent or contest the imposition of such order or injunction, (v) by Buyer, if Buyer concludes in good faith that it is reasonably likely that the satisfaction of any of the conditions set forth in Section 6.2.1 is or has become impossible and Buyer has not waived such condition or (vi) by Buyer if there is pending any claim, suit, arbitration or other adversarial proceeding before any court, agency, arbitral tribunal, or registration authority in any jurisdiction either alleging that the use of the Products or the SBS Intellectual Property Rights infringe any Intellectual Property Rights of any third party, or challenging the ownership, use, validity, enforceability or registrability of any SBS Intellectual Property Rights. In the event of termination of this Agreement by any Party pursuant to this Section 6.3, written notice thereof shall be given to each other party specifying the provision hereof pursuant to which such termination is made and, except for those terms of this Agreement which expressly survive such a termination, this Agreement shall forthwith become void.

ARTICLE 7.

WARRANTIES AND OTHER COVENANTS

7.1 Representations and Warranties of Buyer . Buyer represents and warrants to SBS :

7.1.1 Buyer is a corporation validly existing and in good standing under the laws of the State of Delaware;

7.1.2 The execution, delivery and performance by Buyer of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Buyer and do not violate any provisions of its organizational documents, any applicable regulation or any contract or order binding upon it; and

7.1.3 This Agreement constitutes a valid and binding agreement of Buyer enforceable against Buyer in accordance with its terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws and equitable principles relating to or limiting creditors’ rights generally.

7.2 Representations And Warranties Of SBS . Except as otherwise indicated in a numbers and letters disclosure schedule (the “Disclosure Schedule”) corresponding to the numbered and lettered sections contained herein, SBS represents and warrants to Buyer that:

7.2.1 SBS is a corporation duly organized, validly existing and in good standing under the laws of the state of Delaware. SBS has all requisite corporate power and authority to own, operate, lease, transfer and dispose of the Purchased Assets and to conduct the Business, to execute and deliver this Agreements and the agreements attached as exhibits hereto and to perform its obligations hereunder. SBS is not in violation of its certificate of incorporation or by-laws. SBS has provided true correct and complete copies of SBS’s certificate of incorporation and by-laws.

7.2.2 The execution, delivery and performance of this Agreement and the agreements attached hereto to which SBS is a party and the transactions contemplated hereby and thereby, have been duly authorized by SBS. This Agreement and the agreements attached hereto to which SBS is a party, constitutes or when executed will constitute, legal, valid and binding obligations of SBS, enforceable in accordance with their respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws and equitable principles relating to or limiting creditors’ rights generally. No consent of the stockholders of SBS is required for SBS to enter into this Agreement and/or to consummate the transactions contemplated hereby. The execution and delivery by SBS of this Agreement and the agreements attached hereto to which SBS is a party, and the fulfillment of and compliance with the respective terms hereof, and thereof do not and shall not (i) conflict with or result in a breach of the terms, conditions or provisions of, (ii) constitute a default under, (iii) result in the creation of any Encumbrance upon any of the Purchased Assets pursuant to, (iv) give any third party the right to modify, terminate or accelerate any obligation under, (v) result in a violation of, or (vi) require any exemption or other action by or notice or declaration to, or filing with, or other consent from, any governmental entity or any other Person pursuant to, the charter or by-laws, or similar organizational documents, of SBS, or any legal requirement to which SBS or any of its assets or properties is subject, or any contract, order, judgment or decree to which any of the foregoing Persons or the Product is subject.

7.2.3 SBS owns and possesses all right, free and marketable title and interest in and to all of the Purchased Assets, free and clear from any Encumbrances, liens and claims. There are no (i) liens for taxes not yet due, or (ii) imperfections of title that might interfere with Buyer’s use of the Purchased Assets. Following the Closing, Buyer will have good and marketable title to, free of any liens or Encumbrances, all of the Purchased Assets. All of the Purchased Assets are in good operating condition and repair as required for their use in the Business, normal wear and tear excepted. The Product consists entirely of material (i) which was created as a work for hire (as defined under U.S. copyright law) by a person or persons who were at the time of creation the regular, full-time, salaried employees of SBS, the copyright in which is now owned by SBS; or (ii) the copyright ownership of which was fully and irrevocably transferred to SBS pursuant to a written agreement executed by the author or authors. Except as set forth in the Assumed Contracts and the agreements listed on Schedule 7.2.3, SBS has not sold, licensed, or leased the Product or SBS Intellectual Property Rights therein to any third party. The Product is not subject to any restrictions or limitations (including any orders, judgments, decrees, stipulations, or settlement agreements) regarding ownership, use, or enforcement.

7.2.4 Schedule 7.2.