Exhibit 10.1


 


[ * ] = Certain
confidential information contained in this document, marked by brackets, has
been omitted and filed separately with the Securities and Exchange Commission
pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.


 


 




	
   

  	
  Second Amendment

  	
  Agreement No. AR-63645-Amd 2

  
	
   

  	
  To Product Purchase Agreement

  	
   

  






 


 


This Second
Amendment (the “Second Amendment”) to the Product Purchase
Agreement that was made on the 22nd day of May, 2002, as amended and the Award
Letters executed thereunder (the “PPA is made and entered into as of this 26
day of January, 2004 (the “Second
Amendment Effective Date”) by and among Sun Microsystems, Inc.,
a Delaware corporation, with an office at 901 San Antonio Road, Palo Alto,
California 94303 and Sun Microsystems International B.V., a Netherlands
corporation, with an office at Computertweg 1, 3821 AA Amersfoot, the
Netherlands (hereafter collectively referred to as “Sun”) and Dot Hill
Systems Corporation, a Delaware corporation, with an office at 6305 El Camino
Real, Carlsbad, California 92009 and Dot Hill Systems B.V., a Netherlands
corporation, with an office at Marssteden 94, 7547 TD Enschede, the
Netherlands (hereafter collectively referred to as “Supplier”).  For purpose of interpretation and construction
of this Second Amendment, capitalized terms included herein shall have the same
meaning as such terms are defined in the PPA. 
Additionally, Sun and Supplier may each be referred to in this Second
Amendment as a “Party” and collectively as the “Parties.”


 


Background


 


Whereas,
Sun and Dot Hill desire to amend the PPA to make certain additions and
modifications to the PPA, as described below.


 


Now
Therefore, for good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged by both Parties, the Parties
hereby agree to amend and do amend the PPA, as follows:


 


Second Amendment


 


1.                                      Replace
Section 3, Term, of the PPA with the following:


 


“3 Term.  The term of this Agreement shall commence on
the Effective Date and, unless terminated sooner in accordance with Section
24.1, continue until May 22, 2007 (the “Initial Term”).  This Agreement will renew automatically for
additional [ * ] periods (each a
“Renewal Term”) unless either party gives written Notice of its intent not to renew
the Agreement at least [ * ]
before the end of the Initial Term or any then-existing Renewal Term, as the
case may be.  The Initial Term and any
Renewal Terms will collectively be referred to as the “Term” when used
elsewhere in this Agreement.”


 


2.                                      Add
the following sentence at the end of Section 4.2, Product Pricing, of the PPA:


 


1

















 


“Supplier will use [
* ] to establish or derive [ * ]
for the Product(s) that are to be provided to Sun under this Agreement.  In certain situations, [ * ].”


 


3.                                      Replace
the last two sentences of Section 4.3.2, Cost Savings, of the PPA with the
following:


 


“The Award Letter will set forth any specific required
reductions in pricing to the Product(s) that Sun may obtain from Supplier under
this Agreement [ * ], together
with the date on which any such required reductions in pricing to the
Product(s) are to take effect and the manner in which they are to be
implemented.  Additional reductions in
pricing, if any, will be agreed by the parties in writing.”


 


4.                                      Add
the following to the PPA as Section 4.3.3:


 


 “4.3.3 Executive Reviews.  [ * ],
then Sun may request that an executive meeting be held between Sun and Supplier
to discuss and implement potential changes to pricing for the Product(s) or the
business models used in the pricing of Product(s) to Sun to ensure they are
priced properly to provide cost competitiveness.  Supplier will accommodate such requests from Sun for such
meetings, which will be held at mutually agreed dates and times.”


 


5.                                      Replace
Section 8.1 of the PPA with the following:


 


“8.1  Unless otherwise specified in an applicable
Award Letter, payment is due from Sun to Supplier within the number of days set
forth below (the “Payment Due Date”) after the receipt of invoice or the
receipt of Product by Sun or its carrier, whichever is later (the “Payment
Trigger Event”) unless Sun reasonably disputes whether an invoice from Supplier
is due and owing or the Product was not received by Sun or its carrier from
Supplier:


 


	
  Date of

  Payment Trigger Event

  	
   

  	
  Payment Due Date

  
	
  [ * ]

  	
   

  	
  [ * ]

  
	
  [ * ]

  	
   

  	
  [ * ]

  
	
  [ * ]

  	
   

  	
  [ * ]

  



 












[ * ].  Unless otherwise specified in the applicable
Award Letter, all payments shall be made in U.S. Dollars.  Sun shall not be required to pay the
disputed portion of any invoice, pending resolution of that dispute; provided,
however, that Notice of the dispute has been provided by Sun to Supplier prior
to the Payment Due Date and Sun has a reasonable basis in providing to Supplier
such Notice of dispute.”


 


6.                                      Replace
the last sentence of Section 27.2, Publicity, of the PPA with the following:


 


“Notwithstanding the foregoing: (i) Supplier may make
such disclosures as are reasonably necessary to comply with any securities
laws, regulations or rules, subject to Sun’s review and consent which shall not
be unreasonably withheld, delayed or


 


2

















 


conditioned; and (ii) Supplier may issue other press
releases in connection with any Product releases for customer revenue for any
future major Products that are to be provided by Supplier to Sun, subject to
Sun’s written consent to the publication by Supplier of the content in and
timing of such press releases, which consent shall not be unreasonably
withheld, delayed or conditioned by Sun.”


 


7.                                      This
Second Amendment shall have prospective force and effect as of the Second
Amendment Effective Date.  Except as
specifically set forth above, the terms and conditions of the PPA, including
any Exhibits thereto, and any Award Letters issued under the PPA shall remain
unchanged and in full force and effect. 
The PPA, as amended by this Second Amendment, together with any Award
Letters, constitutes the entire agreement by and between the Parties relating
to its subject matter.  Such documents
shall supersede all prior and contemporaneous oral or written communications,
proposals, conditions, representations and warranties and prevail over any
conflicting or additional terms and conditions between the Parties relating to
its subject matter.


 


In Witness
Whereof, the Parties have caused this Second Amendment to the
PPA to be signed by their duly authorized representatives effective as of the
Second Amendment Effective Date.


 


	
  Sun Microsystems,
  Inc.

  	
  Dot Hill Systems
  Corporation

  
	
   

  	
   

  
	
  By:

  	
  /s/ Marcy Alstott

  	
   

  	
  By:

  	
  /s/ J. L. Lambert

  	
   

  
	
   

  	
   

  
	
  Printed Name:

  	
   Marcy Alstott

  	
   

  	
  Printed Name:

  	
  James L. Lambert

  	
   

  
	
   

  	
   

  
	
  Date:

  	
  26-Jan-04

  	
   

  	
  Date:

  	
  26 Jan 2004

  
	
   

  	
   

  
	
  Title:

  	
  VP, WW Operations

  	
   

  	
  Title:

  	
  President & CEO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Sun Microsystems,
  International B.V.

  	
  Dot Hill Systems
  B.V.

  
	
   

  	
   

  
	
  By:

  	
  /s/ Tymen Kos

  	
   

  	
  By:

  	
  /s/ B. H. M. van der Woning

  
	
   

  	
   

  
	
  Printed Name:

  	
  Tymen Kos

  	
   

  	
  Printed Name:

  	
  Bert H. M. van der Woning

  
	
   

  	
   

  
	
  Date:

  	
  27-Jan-04

  	
   

  	
  Date:

  	
  25-Jan-04

  
	
   

  	
   

  
	
  Title:

  	
  Director

  	
   

  	
  Title:

  	
  M. D.

  
																											



 












[ * ] = Certain confidential information
contained in this document, marked by brackets, has been omitted and filed
separately with the Securities and Exchange Commission pursuant to Rule 24b-2
of the Securities Exchange Act of 1934, as amended.


 


3