AMENDED AND RESTATED ASSET PURCHASE AND TECHNOLOGY LICENSE AGREEMENT

EXHIBIT 2.1

AMENDED AND RESTATED

ASSET PURCHASE AND TECHNOLOGY LICENSE AGREEMENT

This Amended and Restated Asset Purchase and Technology License Agreement is made and entered into as of this 17 ^th day of September, 2008 (“ Effective Date ”) by and between Dot Hill Systems Corp., a Delaware corporation (“ Buyer ”) and Ciprico Inc., a Delaware corporation (“ Seller ”).

Recitals

A.        Seller is a provider of intelligent storage software solutions for servers, professional workstations and digital media workflows (the business that Seller is engaged in, the “ Business ”).

B.        Buyer and Seller entered into that certain Asset Purchase and Technology License Agreement dated September 16, 2008 (the “ Initial Agreement ”).

C.        Buyer and Seller desire to enter into this Amended and Restated Asset Purchase and Technology License Agreement to replace the Initial Agreement in its entirety.

D.        Seller wishes to sell to Buyer certain of the assets used in connection with the Business at the price and on the other terms and conditions specified in detail below, and Buyer wishes to so purchase and acquire such assets from Seller.

E.        Buyer desires to grant and Seller desires to receive licenses relating to certain other of such assets of the Business, subject to and in accordance with the terms and conditions set forth in this Agreement.

F.        Seller desires to grant and Buyer desires to receive licenses relating to certain other of such assets of the Business, subject to and in accordance with the terms and conditions set forth in this Agreement.

Agreement

For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

Article 1
DEFINITIONS

1.1    Definitions. Unless otherwise defined herein, terms used herein shall have the meanings set forth below:

“ Acquired Assets ” shall have the meaning set forth in Article 2.1(a) hereof.

“ Affiliate ” of any particular Person means any other Person controlling, controlled by or under common control with such particular Person, where “control” means the possession, directly or indirectly, of the power to direct the management and policies of a Person whether through the ownership of voting securities or otherwise.

“ Affiliated Group ” means an affiliated group as defined in section 1504 of the Code (or any analogous combined, consolidated or unitary group defined under state, local or foreign income Tax Law) of which Seller is or has been a member.

“ Agreement ” means this Asset Purchase and Technology License Agreement, including all the Schedules hereto, as the same may be amended, modified or waived from time to time in accordance with its terms.

“ Allocation ” shall have the meaning set forth in Article 3.4 , hereof.

“ Alternative Transaction ” means any transaction occurring after Effective Date involving the consummation of the sale pursuant to section 363(b) of the Bankruptcy Code of all or a material portion of the Acquired Assets by the Seller to a purchaser or purchasers other than the Buyer and/or one or more of its Affiliates at any time during the pendency of the Chapter 11 Case.  Without limiting the foregoing, An Alternative Transaction shall include any sale to any of the Seller’s secured creditors, including a bid or bids made for the Acquired Assets pursuant to Bankruptcy Code section 363(k).

“ Appliances ” shall mean computer storage appliance products, and related solutions and services.  By way of example only and without limitation, such computer storage appliance products currently produced, marketed, or sold by Seller include Seller’s DiMeda®, MediaVault™, and Talon™ product lines, and such future storage appliance solutions as Seller may bring to market from time to time.

“ Assumed Executory Contracts ” means all Contracts identified in Schedule 2.1(a)(iv) .

“ Assumed Obligations ” shall have the meaning set forth in Article 2.2(a) hereof.

“ Auction ” shall mean the auction conducted by Seller pursuant to the Bidding Procedures Order and Article 9.2(c) hereof for substantially all of the Acquired Assets.

“ Bankruptcy Code ” means Title 11 of the United States Code.

 “ Bankruptcy Court ” means the United States Bankruptcy Court for the District of Minnesota.

“ Bid ” or “ Bids ” shall have the meaning set forth in Article 7.9 hereof.

“ Bidders ” shall have the meaning set forth in Article 7.9 hereof.

“ Bidding Procedures Order ” means the order of the Bankruptcy Court, in the form reasonably acceptable to the Buyer which includes, among other things, (i) the Breakup Fee, Expense Reimbursement and all other payments to Buyer arising under this Agreement as obligations of the Seller having super-priority as administrative expenses under section 364(c)(1) of the Bankruptcy Code in the Chapter 11 Case, (ii) Buyer’s designation as the stalking horse bidder together with the provisions of this Agreement to be performed by Seller before the Closing; (iii) obligations setting a deadline for the filing of objections to the entry of the Sale Order, (iii) scheduling the Auction in accordance with the terms of this Agreement, (iv) scheduling the Sale Hearing, (v) providing for competitive bidding procedures pursuant to which competing offers may be solicited, made and accepted and containing the terms specified in Articles 9.2(c) and 12.2 hereof and (vi) approving and implementing the provisions of Articles 7.6, 7.7, 9.2(c) and 12.2 hereof.

“ Books and Records ” means all records and lists of Seller related solely to the Acquired Assets including: all analysis reports, marketing reports and creative material pertaining to the Acquired Assets, all records relating to past or present customers, suppliers or personnel of Seller (including customer lists, mailing address lists, e-mail address lists, recipient lists, sales records, correspondence with customers, customer files and account histories, supply lists and records of purchases from and correspondence with suppliers and any other written or electronic identifiable data relating to past or present customers or suppliers of the Business with regard to the Acquired Assets which has been created by Seller or its representatives, agents or employees), all records relating to all product, business and marketing plans of Seller, and all books, ledgers, files, reports, plans, drawings and operating records of every kind of Seller; provided, however, “ Books and Records ” shall not include Seller’s minute books, stock books and Tax Returns.

“ Breakup Fee ” shall have the meaning set forth in Article 9.2(c)(i) hereof.

“ Broadcom License ” shall mean the intellectual property licensed to Seller by Broadcom Corporation (“ Broadcom ”) pursuant to that certain Technology License and Asset Purchase Agreement between Broadcom and Seller dated June 6, 2006, as amended by the First Amendment to the Technology License and Asset Purchase Agreement, dated June 30, 2008, between Broadcom and Seller, including but not limited to the RAIDCore Licensed Technology.

“ Business ” shall have the meeting set forth in Recital A, above.

“ Buyer ” shall have the meaning set forth in the preamble hereof.

“ Chapter 11 Case ” the case commenced by Seller, on the Petition Date, under chapter 11 of the United States Bankruptcy Code in the Bankruptcy Court, Case No. BKY 08 -- 43731.

“ Claim ” shall have the meaning set forth in section 101(5) of the Bankruptcy Code.

“ Closing ” shall have the meaning set forth in Article 11.1 hereof.

“ Closing Date ” shall have the meaning set forth in Article 11.1 hereof.

“ Closing Note ” shall have the meaning set forth in Article 3.1(a)(iv) hereof.

“ Code ” means the United States Internal Revenue Code of 1986, as amended.

“ Confidentiality Agreement ” means the Confidentiality Agreement, dated as of July 28, 2008, between Buyer and Seller.

“ Contract ” means any agreement, contract, lease, commitment or other binding arrangement or understanding, whether written or oral, to which Seller is a party and which Seller is permitted under the Bankruptcy Code and applicable law to assume and assign other than an Employee Benefit Plan.

“ Damages ” shall have the meaning set forth in Article 14.1 .

“ DIP Loan” means the Post-Petition Loan and Security Agreement and related promissory note and loan documents, dated August 28, 2008.

“ Disclosure Schedules ” shall have the meaning set forth in Article 5.1 hereof.

“ Dollars ” or “ $ ” means dollars of the United States of America.

“ Employee Compensation Obligations “ shall mean any obligations of the Seller, whether they arose before or after the Petition Date, with respect to any unpaid wages, salary, health benefits, severance obligations, change of control obligations, unused vacation or sick leave earned and accrued (to the extent not paid) or similar Liability, with respect to all employees, former employees, retirees of Seller, or any dependents or beneficiaries thereof and the Rehired Employees.

“ Excluded Assets ” shall have the meaning set forth in Article 2.3 hereof.

“ Excluded Contracts ” shall have the meaning set forth in Article 2.3(a) hereof.

“ Excluded Environmental Liabilities ” means any Liability or investigatory, corrective or remedial obligation, arising under environmental Laws with respect to Seller or any predecessor or Affiliate of Seller, arising out of or relating to the operation, use or environmental condition of the Business, the Acquired Assets prior to the Closing (including any arising from the on-site or off-site Release, threatened Release, treatment, storage, disposal, or arrangement for disposal of, or exposure to Hazardous Substances) whether or not constituting a breach of any representation or warranty herein and whether or not set forth on any Disclosure Schedule.

“ Excluded Liabilities ” shall have the meaning set forth in Article 2.4 hereof.

“ Expense Reimbursement ” shall have the meaning set forth in Article 9.2(c)(i) hereof.

“Facility”   means Seller’s lease of that certain real property located at 7003 Lake Street West, Suite 400, St. Louis Park, Minnesota.

“Facility Payment”   is defined in Article 9.11(c) .

“Facility Services”   means, (i) the right of Buyer and Rehired Employees to use and occupy a portion of the Facility, and (ii) all costs and fees associated with Buyer and Rehired Employees’ use and occupancy of the Facility, including utilities, telephone, internet connections, taxes, equipment, supplies and janitorial services.

“ Field of Use ” shall mean use as installed in or embedded in Appliances.

“ Final Order ” means an Order as to which the time to file an appeal, a motion for rehearing or reconsideration or a petition for writ of certiorari has expired and no such appeal, motion or petition has been filed.

“ GAAP ” means, at a given time, United States generally accepted accounting principles, consistently applied.

“ Governmental Authority ” means any United States federal, state or local or any foreign government, governmental regulatory or administrative authority, agency or commission or any court, tribunal or judicial or arbitral body.

" HBA Intellectual Property " means the Intellectual Property reasonably necessary to reproduce, modify, manufacture, troubleshoot, implement, interface and integrate with, and distribute the host bus adapter cards manufactured, sold, or distributed by Buyer, including board layouts, BOMs, manufacturing processes, chip designs, mask works, specifications, know-how, trade secrets, software, tooling, molds, supplier lists, and the source code for any software comprising part of the RAIDCore Assets or RAIDCore Licensed Technology, including any improvements to any of the foregoing, including the assets and materials set forth in Exhibit 1.1(a).

“ Highest or Best Bid ” shall have the meaning set forth in Article 9.2(c)(vii) hereof.

“ Indebtedness ” with respect to any Person means any obligation of such Person for borrowed money, and in any event shall include (i) any obligation incurred for all or any part of the purchase price of property or other assets or for the cost of property or other assets constructed or of improvements thereto, other than accounts payable included in current liabilities and incurred in respect of property purchased in the Ordinary Course of Business, (ii) the face amount of all letters of credit issued for the account of such Person, (iii) obligations (whether or not such Person has assumed or become liable for the payment of such obligation) secured by Liens, (iv) capitalized lease obligations, (v) all guarantees and similar obligations of such Person, (vi) all accrued interest, fees and charges in respect of any indebtedness and (vii) all prepayment premiums and penalties, and any other fees, expenses, indemnities and other amounts payable as a result of the prepayment or discharge of any indebtedness.

“ Intellectual Property ” shall mean, all of the following in any jurisdiction in the world, (i) inventions (whether or not patentable or reduced to practice), all improvements thereto, and patents, patent applications, patent disclosures and all prosecution history files, together with all reissuances, continuations, continuations-in-part, revisions, extensions, reexaminations and counterparts thereof; (ii) works of authorship (whether or not copyrightable), and copyrights, mask works and copyrightable works, and applications, registrations and renewals in connection therewith; (iii) trade secrets and other confidential or proprietary information (including, where confidential or proprietary, ideas, research and development, formulas, software, compositions, manufacturing, production and other processes and techniques, methods, designs, technical and other data, charts, plans, diagrams, drawings and specifications, customer and supplier lists and business, marketing and other plans, studies and proposals); (iv) computer software (including source code, executable code data, databases and documentation) and systems; (v) copies and tangible embodiments of any of the foregoing in whatever form or medium; (vi) all other intellectual property, proprietary rights and all other general intangibles (including rights relating to products under development); and (vii) the right to sue and recover for any past, present or future infringement, misappropriation, dilution or any other causes of action, and to recover or collect any damages, proceeds, income, royalties or other payments in connection with or relating to any of the foregoing.  A Schedule of patents, patent applications, trademarks, service marks, logos, and registered copyrights is attached hereto and marked as Exhibit 1.1(b) .

“ Instruments of Assignment ” means those documents and instruments necessary for the Seller to effect the sale, conveyance, assignment, transfer and delivery of the Acquired Assets to Buyer or its designees, including assignment and assumption agreements, bills of sale and other documents of assignment and transfer, all in form and substance reasonably satisfactory to Buyer, each in recordable form to the extent necessary to duly assign such rights to Buyer.

“ Knowledge ” or “ Knowledge of Seller ” shall mean the actual knowledge of each of Seller’s Chief Executive Officer and Chief Financial Officer.

“ Law ” means any law, statute, regulation, ruling, or Order of, administered or enforced by or on behalf of, any Governmental Authority, or common law.

“ Liability ” means any liability (whether known or unknown, whether asserted or unasserted, whether absolute or contingent, whether accrued or unaccrued, whether liquidated or unliquidated, and whether due or to become due and regardless of when asserted), including any liability for Taxes.

“ Lien ” or “ Liens ” means any lien (statutory or otherwise), hypothecation, encumbrance, Claim, Liability, security interest, interest, mortgage, pledge, restriction, charge, instrument, license, preference, priority, security agreement, easement, covenant, encroachment, option, right of recovery, Tax (including foreign, federal, state and local Tax), Order of any Governmental Authority, of any kind or nature (including (i) any conditional sale or other title retention agreement and any lease having substantially the same effect as any of the foregoing, (ii) any assignment or deposit arrangement in the nature of a security device, (iii) any claim based on any theory that Buyer is a successor, transferee or continuation of Seller or the Business, and (iv) any leasehold interest, license or other right, in favor of a Third Party or a Seller, to use any portion of the Acquired Assets), whether secured or unsecured, choate or inchoate, filed or unfiled, scheduled or unscheduled, noticed or unnoticed, recorded or unrecorded, contingent or non-contingent, material or non-material, known or unknown.

“ Macrovision License ” means that certain “Software License and Services Agreement, dated September 13, 2007 by and between Seller and Macrovision Corporation.

“ Material Adverse Change ” or “ Material Adverse Effect ” means any event, condition, development or effect that individually or in the aggregate with all other events, changes, conditions, developments and effects, is or is reasonably likely to be materially adverse to (i) the Acquired Assets and Assumed Obligations or (ii) the ability of Seller to perform its obligations under this Agreement, provided, however, that none of the following shall be deemed in and of itself, either alone or in combination, to constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Change or a Material Adverse Effect: (a) changes in economic conditions generally or in the industries in which Seller operates, except to the extent such changes have a disproportionate effect on Seller, (b) any change of Law, accounting standards or regulatory policy, (c) changes or adverse conditions in the securities markets, including those relating to debt financing, except to the extent such changes have a disproportionate effect on Seller, and (d) any actions specifically required to be taken pursuant to this Agreement.

“ NAS Intellectual Property ” means all of the following in any jurisdiction throughout the world, but only as it relates to the NAS source code and related technology for Seller’s Networked-Attached Storage and utility software as it exists on the Closing Date:  (i) computer software (including source code, executable code data, databases and documentation) and systems; (ii) copies and tangible embodiments of any of the foregoing in whatever form or medium; (iii) inventions (whether or not patentable or reduced to practice), all improvements thereto, and patents, patent applications, patent disclosures and all prosecution history files, together with all reissuances, continuations, continuations-in-part, revisions, extensions, reexaminations and counterparts thereof; (iv) works of authorship (whether or not copyrightable), and copyrights, mask works and copyrightable works, and applications, registrations and renewals in connection therewith; (v) trade secrets, know-how and other confidential, proprietary or business information (including ideas, research and development, formulas, compositions, designs, technical and other data, charts, plans, and diagrams); and (vi) the right to sue and recover for any future infringement, misappropriation, dilution or any other causes of action, and to recover or collect any damages, proceeds, income, royalties or other payments in connection with or relating to any of the foregoing. An Exhibit describing the NAS Intellectual Property is attached hereto and marked as Exhibit 1.1(c) .

“ NAS Agreement ” means that certain “NAS Joint Ownership Agreement” between Buyer and Seller by which Buyer and Seller shall become the joint owners of the NAS Intellectual Property.

“NAS Rights”    means the rights and interests that Buyer obtains under the NAS Agreement.

“ Net Revenue ” (i) means gross sales less adjustments as in accordance with generally accepted accounting principles (GAAP) adopted by and stated in Buyer’s SEC filings (ii) means for purposes of service and maintenance contracts, revenue recognized on a straight line basis over the contract service period; and (iii) shall only exclude units shipped on a zero revenue base related specifically to customer evaluation and potential customer evaluation, demonstration or loan until such time, if any, that a purchase order including the applicable price is obtained.

“Obligations”   means all sums due and owing from Seller to Buyer under the DIP Loan.

“ Order ” means any decree, order, injunction, rule, judgment, consent of or by any Governmental Authority.

“ Ordinary Course of Business ” means the operation of the Business by Seller in the usual and ordinary course in a manner substantially similar to the manner in which Seller operated on the Effective Date, subject to any obligations as a debtor under the Bankruptcy Code or any order of the Bankruptcy Court.

“ Permits ” means licenses, permits, approvals, certificates of occupancy, authorizations, operating permits, registrations, plans and the like.

“ Permitted Liens ” means easements, covenants, conditions, restrictions and other similar matters of record on real property, leasehold estates or personally that do not in any material respect detract from the value thereof and do not individually or in the aggregate in any material respect interfere with the present use of the property subject thereto.

“ Person ” means any corporation, partnership, joint venture, limited liability company, organization, entity, authority or natural person.

“ Petition Date ” means July 28, 2008.

“ Proceeding ” means any claim, charge, complaint, dispute, demand, action, investigation, inquiry, audit, suit in equity or at Law, administrative, regulatory or quasi-judicial proceeding, arbitration, account, contribution, and/or other causes of action of whatever kind or character.

“ Purchase Price ” shall have the meaning set forth in Article 3.1 hereof.

“ Qualifying Bid ” shall have the meaning set forth in Article 9.2(c)(vi) hereof.

“ RAIDCore Assets ” shall mean all Intellectual Property owned by Seller that exists at Closing and is associated with, modifies, or implements the RAIDCore Licensed Technology.

“ RAIDCore License ” is defined at Article 4.1 .

“ RAIDCore Licensed Technology ” shall mean that certain Intellectual Property set forth in Exhibit 1.1(d) hereto, and software that is designed to control a disk storage subsystem consisting of multiple hard disk drives to share or replicate data among the drives in accordance with industry standard RAID (Redundant Array of Independent Drives) level definitions, licensed to Seller by Broadcom, pursuant to the Broadcom License.

“ Rehired Employees ” shall have the meaning set forth in Article 9.10(a) hereof.

“ Rule ” or “ Rules ” means the Federal Rules of Bankruptcy Procedure.

“ Sale Hearing ” means the hearing of the Bankruptcy Court to approve this Agreement and the transactions contemplated herein.

“ Sale Motion ” shall have the meaning set forth in Article 7.6(b) hereof.

“ Sale Order ” means the Final Order of the Bankruptcy Court, in form reasonably acceptable to the Buyer and to be filed with the Bankruptcy Court on or before two (2) business days before the Sale Hearing to be entered by the Bankruptcy Court pursuant to sections 363 and 365 of the Bankruptcy Code.

“ Schedules ” means the schedules attached hereto (including the Disclosure Schedules).

“ Seller ” shall have the meaning set forth in the preamble hereof.

“Seller Intellectual Property” means the NAS Intellectual Property, the HBA Intellectual Property, the RAIDCore Assets and the RAIDCore Licensed Technology.

“ Subsequent Payments ” is defined in Article 3.2 .

“ Subsidiary ” means, with respect to any Person, any corporation a majority of the total voting power of shares of stock of which is entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or any partnership, limited liability company, association or other business entity a majority of the partnership or other similar ownership interest of which is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof.  For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing director or general partner of such partnership, limited liability company, association or other business entity.

“ Tax ” and, with correlative meaning, “ Taxes ” mean with respect to any Person (i) all federal, state, local, county, foreign and other taxes, assessments or other government charges, including any income, alternative or add-on minimum tax, estimated gross income, gross receipts, sales, use, ad valorem , value added, transfer, capital stock franchise, profits, license, registration, recording, documentary, intangibles, conveyancing, gains, withholding, payroll, employment, social security (or similar), unemployment, disability, excise, severance, stamp, occupation, premium, real property, personal property, unclaimed property, environmental or windfall profit tax, custom duty or other tax, governmental fee or other like assessment, charge, or tax of any kind whatsoever, together with any interest, penalty, addition to tax or additional amount imposed by any Governmental Authority responsible for the imposition of any such tax (domestic or foreign) whether such Tax is disputed or not, (ii) Liability for the payment of any amounts of the type described in clause (i) above relating to any other Person as a result of being party to any agreement to indemnify such other Person, being a successor or transferee of such other Person, or being a member of the same affiliated, consolidated, combined, unitary or other group with such other Person, or (iii) Liability for the payment of any amounts of the type described in clause (i) arising as a result of being (or ceasing to be) a member of any Affiliated Group (or being included (or required to be included) in any Tax Return relating thereto).

“ Tax Return ” means any report, return, declaration, claim for refund or other information or statement relating to Taxes, including any schedules or attachments thereto and any amendments thereof.

“ Third Party ” means any Person other than Seller, Buyer or any of their respective Affiliates.

“ Transaction Documents ” means this Agreement, and all other agreements, instruments, certificates and other documents to be entered into or delivered by any party in connection with the transactions contemplated to be consummated pursuant to this Agreement.

“ WARN Act ” means the federal Worker Adjustment and Retraining Notification Act, 29 U.S.C. § 2101 et seq. (1988) and any similar Minnesota statutes or provisions, if any.

1.2    Rules of Construction .  Unless the context otherwise clearly indicates, in this Agreement:

(a)   the singular includes the plural;

(b)   “includes” and “including” are not limiting;

(c)   “may not” is prohibitive and not permissive; and

(d)   “or” is not exclusive.

Article 2
ACQUIRED ASSETS

2.1  Purchase and Sale of Acquired Assets.

(a)   Subject to the terms and conditions set forth in this Agreement, at the Closing Seller shall sell, contribute, convey, assign, transfer and deliver to Buyer, free and clear of all Liens, Claims, and other interests and encumbrances (whether arising prior to or subsequent to the Chapter 11 Case, but except for the Assumed Obligations and Permitted Liens) to the fullest extent allowed by Law, and Buyer shall purchase, acquire and take assignment and delivery of, for the consideration specified in Article 3.1 , all properties, assets, rights, titles and interests of every kind and nature, owned, licensed or leased by Seller (including indirect and other forms of beneficial ownership) as of the Closing Date, whether tangible or intangible, personal and wherever located and by whomever possessed, in and to the following assets (all of the assets to be sold, assigned, transferred and delivered to Buyer hereunder herein called the “ Acquired Assets ”); provided, that the Acquired Assets shall not include the Excluded Assets retained by Seller pursuant to Article 2.3 :

(i)   the RAIDCore Assets;

(ii)   all RAIDCore Licensed Technology;

(iii)   the NAS Rights;

(iv)   all of Seller’s rights existing under the Assumed Executory Contracts, including the Broadcom License (for the avoidance of doubt, a list of such Assumed Executory Contracts is set forth in Schedule 2.1 (a)(iv)) , as determined by Buyer, to the extent that such Assumed Executory Contracts (A) have been entered into after the petition for the Chapter 11 Case, (B) have been assumed prior to the date of this Agreement pursuant to an Order of the Bankruptcy Court or (C) are assumed by Seller pursuant to Article 2.1(b) ;

(v)   as identified in Schedule 2.1(a)(v) , all owned machinery, equipment (including all transportation and office equipment), fixtures, trade fixtures, computer and information technology equipment and related data, owned by Seller wherever located, but only as it relates to the Acquired Assets;

(vi)   as identified in Schedule 2.1(a)(vi) , all owned office supplies, production supplies, spare parts, other miscellaneous supplies, and other tangible property of any kind wherever located, including all property of any kind located in any building, office or other space leased, owned or occupied by Seller or in any warehouse where any of Seller’s properties and assets may be situated, but only as it relates to the Acquired Assets;

(vii)   as identified in Schedule 2.1(a)(vii) , all security deposits and advances, but only as they relate to the Acquired Assets;

(viii)   as identified in Schedule 2.1(a)(viii) , all claims, including deposits, prepayments, warranties, guarantees, refunds, reimbursements, causes of action, rights of recovery, rights of set-off and rights of recoupment of every kind and nature (whether or not known or unknown or contingent or non-contingent), but only as it relates to the Acquired Assets;

(ix)   copies of all Books and Records, including, but not limited to, data and information that may reside or is otherwise located on equipment, computers or other storage devices that Buyer does not acquire as part of this Agreement;

(x)   other than as set forth on Schedule 2.1(x) , all Permits, licenses, certifications and approvals from all permitting, licensing, accrediting and certifying agencies, and the rights to all data and records held by such permitting, licensing and certifying agencies, but only as they relate to the Acquired Assets;

(xi)   the HBA Intellectual Property;

(xii)   as identified in Schedule 2.1(a)(xii) , all goodwill as a going concern and all other intangible properties but only as it relates to the Acquired Assets;

(xiii)   as identified in Schedule 2.1(a)(xiii) , all of Seller’s rights to be indemnified from Third Parties, but only as they relate to the Acquired Assets;

(xiv)   as identified in Schedule 2.1(a)(xiv) , all rights to proceeds under insurance policies, but only as they relate to the Acquired Assets; and

(xv)   as identified in Schedule 2.1(a)(xv) , all security deposits relating to Assumed Executory Contracts.

(b)   Notwithstanding anything in this Agreement to the contrary, (i) Buyer may revise Schedule 2.1(a)(iv) to eliminate or add any Contract from Schedule 2.1(a)(iv) and exclude from or include in, as applicable, the definition of Assumed Executory Contracts such Contract by providing written notice to Seller up to two (2) business days prior to the Sale Hearing and (ii) in the case of any such revision, Seller shall give notice to the other parties to any such Contract within twenty-four (24) hours of such addition or elimination, and Seller shall use all reasonable efforts to obtain any necessary Bankruptcy Court approval for the assumption and assignment to Buyer of such additional Assumed Executory Contracts.

(c)   At any time, Seller may immediately move to reject any Excluded Contract upon notice to Buyer and Buyer shall have the right to inform Seller up to fifteen (15) days following the date of the notice thereof to require the Seller to assume and assign such Excluded Contract to Buyer provided any applicable cure costs shall be borne by Buyer.

2.2  Assignment and Assumption of Liabilities.

(a)   Subject to the terms and conditions set forth in this Agreement, including Article 2.4 hereto, Buyer shall only assume from Seller and thereafter be responsible for the payment, performance or discharge of the Liabilities and obligations of Seller under the Assumed Executory Contracts arising after the Closing (the “ Assumed Obligations ”).

(b)    Article 2.2(a) shall not limit any claims or defenses Buyer may have against any party other than Seller.  The transactions contemplated by this Agreement shall in no way expand the rights or remedies of any Third Party against Buyer or Seller.

2.3    Excluded Assets .  Notwithstanding anything to the contrary in this Agreement, the following assets of Seller shall be retained by Seller and are not being sold or assigned to Buyer hereunder (all of the following are referred to collectively as the “ Excluded Assets ”):

(a)   the avoidance powers granted to Seller under the Bankruptcy Code and causes of action and remedies granted pursuant to or incorporated in Sections 502, 510, 541(a)(3) and (4), 544, 545, 547 through 551 and 553 of the Bankruptcy Code;

(b)   any leases, including the lease for the Facility, contracts, agreements, licenses, commitments or similar arrangements other than the Assumed Executory Contracts listed on Schedule 2.1(a)(iv) (taking into account any revisions to Schedule 2.1(a)(iv) made by Buyer pursuant to Article 2.1(b) ) (the “ Excluded Contracts ”);

(c)   Cash and cash equivalents as of the Closing Date, and all bank accounts of Seller;

(d)   all rights to proceeds under any director and officer liability insurance policies of Seller for claims arising prior to the Closing;

(e)   all assets maintained pursuant to or in connection with any employee benefit plan;

(f)   all accounts receivable;

(g)   all inventory;

(h)   any Contract related to indebtedness for borrowed money, including the Convertible Note Purchase Agreement between Seller and certain investors dated December 26, 2007;

(i)   any equity securities of any issuer owned by Seller and any notes receivable issued by any shareholder of the Seller in connection with the exercise of Seller’s stock options;

(j)   this Agreement, Seller’s rights under this Agreement and all cash and non-cash consideration payable or deliverable to Seller pursuant to the terms and provisions hereof;

(k)   any assets that are not identified in Article 2.1; and

(l)   the corporate minute books of Seller.

2.4    No Other Liabilities Assumed .  Seller acknowledges and agrees that pursuant to the terms and provisions of this Agreement, Buyer will not assume, or in any way be liable or responsible for, any Liability of Seller (including Liabilities relating to the pre-petition or post-petition operation of the Business, the Excluded Assets or to the Acquired Assets (and the use thereof)), whether relating to or arising out of the Business, the Excluded Assets or the Acquired Assets or otherwise, other than the Assumed Obligations.  In furtherance and not in limitation of the foregoing, except as specifically set forth in Article 2.2 , neither Buyer nor any of its Affiliates shall assume, and shall not be deemed to have assumed, any Liability of any kind or nature whatsoever of Seller resulting from, arising out of, relating to, in the nature of, or caused by (a) Indebtedness (other than Assumed Executory Contracts which are capitalized leases), (b) any Excluded Asset or Excluded Contract, (c) Taxes or escheat obligations of any kind or nature, (d) any Claim arising out of facts, events, circumstances, actions or inactions occurring on or prior to the Closing, (e) any employee benefit plan, (f) any Excluded Environmental Liabilities, (g) any Employee Compensation Obligation, (h) any breach of contract, breach of warranty, tort, infringement or other violation of the rights of another Person (including any Seller Intellectual Property rights) or any lawsuits or violations of Law, (i) any other obligation of Seller or any predecessor or Affiliate of Seller whatsoever or any ERISA Affiliate other than the Assumed Obligations, or (j) any Liability of Seller arising under the WARN Act (whether prior to or after Closing), if any, including any such Liabilities arising out of or resulting in connection with the Closing and/or the consummation of the transactions contemplated by this Agreement (collectively, any such obligations, the “ Excluded Liabilities ”).

2.5    Deemed Consents .  In its notice and motion to assume and assign Contracts to Seller, Debtor shall request that the Bankruptcy Court deem the non-debtor party to such contract or lease to have consented to the sale and the assumption and assignment of said contract or lease, and the Sale Order shall provide and acknowledge such deemed consent.

2.6    Obligations in Respect of Assumed Executory Contracts .  To the extent that any Assumed Executory Contract is subject to a cure pursuant to section 365 of the Bankruptcy Code, Seller shall be responsible for such cure and shall pay any amounts related to such cure obligations; provided, however, that Buyer shall be responsible for any amounts related to such cure obligations under the Macrovision License (the “ Cure Costs ”).  Buyer shall be responsible for paying all costs and expenses accrued under any Assumed Executory Contract subsequent to the Closing Date.

2.7    Post-Closing Assignment of Contracts .  With respect to any Contract which is not set forth on Schedule 2.1(a)(iv) , and provided such Contract has not been rejected by Seller pursuant to section 365 of the Bankruptcy Code, upon written notice(s) from Buyer, as soon as practicable, Seller shall take all actions reasonably necessary to assume and assign to Buyer pursuant to section 365 of the Bankruptcy Code any Contract(s) set forth in Buyer’s notice(s), and any applicable cure costs shall be borne by Buyer.  The covenant set forth in Article 2.7 shall survive the Closing, subject to the rights of Seller under Article 2.1(c) .  Notwithstanding anything in this Agreement to the contrary, on the date any Contract is assumed and assigned to Buyer pursuant to this Article 2.7 , such Contract shall be deemed an Assumed Executory Contract and deemed scheduled on Schedule 2.1(a)(iv) under the appropriate heading for all purposes under this Agreement.

Article 3
CONSIDERATION

 3.1  Purchase Price.

(a)    Purchase Price .  The consideration to be paid by Buyer to Seller for the Acquired Assets shall be:

(i)   cash in the amount of $2,250,000, less credit for all outstanding Obligations (the “ Cash Purchase Price ”);

(ii)   assumption of the Assumed Obligations;

(iii)   Subsequent Payments, if any, as determined in accordance with Article 3.2 ; and

(iv)    an unsecured promissory note in the form attached hereto as Exhibit 3.1(a)(iv) in the original principal amount of $1,000,000.00 (the “ Closing Note ”).

(b)    Payment .  On the Closing Date, Buyer shall pay and deliver to Seller, by wire transfer of immediately available funds, the Cash Purchase Price.

3.2       Subsequent Payments .  Except as otherwise provided herein, Buyer shall pay to Seller additional payments equal to six and two-thirds percent (6.67%) of the Net Revenue received by Buyer from the RAIDCore Assets, the RAIDCore Licensed Technology and the NAS Rights (the “ Subsequent Payments ”).  Such Subsequent Payments will be (i) paid quarterly within sixty (60) days of the end of the respective calendar quarter, (ii) paid for a time period not to exceed 42 months after the Closing Date, and (iii) equal to 6.67% of Net Revenue received by Buyer from the RAIDCore Assets, the RAIDCore Licensed Technology and the NAS Rights, up to, but not exceeding, $30,000,000 of Net Revenue received by Buyer from any combination of the RAIDCore Assets, the RAIDCore Licensed Technology and the NAS Rights.  In the event that RAIDCore is sold in an embedded context, where the price of the embedded RAIDCore component cannot be independently established or verified, the six and two thirds percent (6.67%) royalty provided for above shall be applied to the following allocated RAIDCore component value:  When sold with host bus adapter cards, the price allocated to the RAIDCore component will be $35/unit (6.67% royalty= $2.33/unit); when sold as embedded in an appliance that includes at least one motherboard (regardless of the number of such boards and the presence or absence of hard disk drives), then the price allocated to the RAIDCore component will be $50/unit (royalty=$3.34/unit); and when sold in software form only, as part of a bundle that includes other software (e.g. Snapshots, RAID 6, or the like), then the price allocated to the RAIDCore component will be $5.00/unit (royalty=$0.33/unit).  For purposes of calculating Subsequent Payments, when the value of the NAS Rights embedded into products sold are not readily ascertainable or independently verifiable, the Net Revenue received shall be based on 5% of the total price of the end product sold with a maximum of $750 per product sold.  Subsequent Payments will be accompanied by reports for applicable products, quantities and revenues of Buyer (“Reports”). Seller, its agents, representatives or advisors (provided the foregoing are subject to the terms of the Confidentiality Agreement) shall be entitled to request for review copies of relevant contracts, books and records and other specifically identified documents in order to confirm the accuracy of the Reports (“Audit.”)  Audits may be conducted no more frequently than once a year, only for a period of four (4) years after the Closing, and shall be conducted at the Buyer’s premises (or a location selected by the Buyer) on no less than seven (7) days prior written notice to Buyer.  Audits shall be conducted during Buyer’s regular business hours and in a fashion so as not to disturb Buyer’s business operations.  Seller shall be responsible for the payment of all fees and costs associated with an Audit. In the event that an Audit results in a finding of the existence of an undisputed (i) underpayment relative to the data set forth in a Report, Buyer shall pay to Seller the difference between the amount already paid to the Seller and the discrepancy within 10 business days, or (ii) overpayment relative to the data set forth in a Report, Seller shall pay Buyer the overpayment within 10 business days, and in failing to do so, Buyer may offset the overpayment against future Subsequent Payments.   Buyer’s obligation to make Subsequent Payments to Seller pursuant to this Article 3.2 shall cease when Buyer’s Subsequent Payments reach two million dollars ($2,000,000) in the aggregate.

3.3       Fair Price .  Seller acknowledges that the Purchase Price for the Acquired Assets is both fair and reasonable and fairly represents the fair market value obtainable for the Acquired Assets between a willing buyer and willing seller.  The Purchase Price is in excess of the amount Seller could reasonably expect to receive upon a forced liquidation of such Acquired Assets.

3.4       Tax Allocation .  Buyer shall, within 120 days after the Closing Date, prepare and deliver to Seller a schedule allocating the Purchase Price (and any other items that are required for federal income tax purposes to be treated as part of the purchase price) among the Acquired Assets in accordance with the requirements of section 1060 of the Code (such schedule, the “ Allocation ”).  Buyer and Seller shall report and file all Tax Returns (including amended Tax Returns and claims for refund) consistent with the Allocation, and shall take no position contrary thereto or inconsistent therewith (including in any audits or examinations by any Governmental Authority or any other proceeding).  Buyer and Seller shall cooperate in the filing of any forms (including Form 8594 under section 1060 of the Code) with respect to such Allocation.  Notwithstanding any other provision of this Agreement, the terms and provisions of this Article 3.4 shall survive the Closing without limitation.

3.5       Sales, Use and Other Taxes .  Any sales, purchases, transfer, stamp, documentary stamp, use or similar taxes which may be payable by reason of the sale of the Acquired Assets under this Agreement are or the transactions contemplated herein shall be paid by Seller if not determined to be exempt under Section 1146(a) of the Bankruptcy Code.

Article 4
LICENSES AND AGREEMENTS

4.1    RAIDCore License .  At Closing, Buyer shall grant to Seller a license generally in the form of Exhibit 4.1 , attached hereto with regard to the RAIDCore Technology (the “ RAIDCore License ”).  As set forth in greater detail in Exhibit 4.1: (i) the RAIDCore License shall be a worldwide, royalty bearing license for use of the RAIDCore Technology in Seller’s DiMeda, MediaVault and Talon product lines only; (ii) no royalty shall be due from Seller to Buyer for two (2) years following the Closing Date, but, notwithstanding the foregoing, during this initial two year period, Seller shall be required to account for and pay to Buyer all royalties and fees, if any, Buyer is required to pay to Broadcom, in accordance with the provisions of the Broadcom License, based on sales or other activities by Seller; (iii) commencing two years after the Closing Date, Seller shall pay Buyer royalties and other fees as provided by the RAIDCore License; (iv) Seller may assign the RAIDCore License, and Buyer will not unreasonably withhold its consent to assignment the RAIDCore License by Seller, to no more than an aggregate of three (3) concurrent assignees to whom Seller (w) sells its entire right, title and interest in its DiMeda, MediaVault, and/or Talon product lines of Appliances (including all Intellectual Property rights and inventory associated with such product line, including the associated trademark and all rights under the RAIDCore License with respect to any future versions of such product line) including a sale of such product lines as part of the sale by Seller of all or substantially all of Seller’s business, or (x)  exclusively licenses the right to produce and sell the  DiMeda, MediaVault, and/or Talon product lines of Appliances provided, however, that (y) the RAIDCore License, as assigned, shall be limited to distribution of copies of RAIDCore Licensed Technology with the DiMeda, MediaVault, and/or Talon product lines of Appliances purchased from Seller by the assignee in connection with such assignment; and (z) be limited to one transferee or assignee per product line at any given time, provided that Seller may subsequently transfer or assign such rights to other third parties if the prior transferee or assignee defaults on their obligations or otherwise forfeits their rights such that the assignment is cancelled and all rights hereunder revert to Seller.

4.2    RAIDCore Support.   For a period of six (6) months after the Closing Date (“ Support Period ”), Buyer will provide Seller with development time and support up to a maximum of one full-time equivalent software engineer, per month, and related test time, per month (“ Development Time ”).  During the