EXHIBIT 10.28


 


EXECUTION
VERSION


 


ASSET PURCHASE
AGREEMENT


 


by and among


 


LONGHORN INC.,


 


NEW SAH
CORP.,


 


DOTDEAL
INC.,


 


SYSTEMAX INC.


 


and


 


COMPUSA INC.


 


Dated as of January 5, 2008


 

















 


EXECUTION
VERSION


 


ASSET PURCHASE
AGREEMENT


 


THIS
ASSET PURCHASE AGREEMENT (this “Agreement”) is entered into as of January 5,
2008,  by and among SYSTEMAX INC.,
a Delaware  corporation (“Systemax”),
New SAH Corp., a Delaware  corporation
and a wholly-owned subsidiary of Systemax (the “Trade Name Buyer”),
DotDeal Inc., a Florida  corporation
and a wholly-owned subsidiary of Systemax (the “Domain Name Buyer”, and
together with the Trade Name Buyer, the “Internet Buyers”, and each
individually, an “Internet Buyer”), Longhorn Inc., a Delaware  corporation and a wholly-owned subsidiary
of Systemax (the “Real Estate Buyer” and, together with the Internet
Buyers, the “Buyers”), and COMPUSA INC., a Delaware corporation (the “Seller”).


 


W
I T N E S S E T H


 


WHEREAS,
subject to the terms and conditions hereof, the Seller desires to sell, transfer
and assign to the Buyers, and the Buyers desire to purchase from the Seller,
certain assets of the Seller and its Subsidiaries (as defined below)
(collectively, the “Seller Group”) used or held for use by the Seller
Group in connection with the operation of the Transferred Businesses (as
defined below), and the Seller desires to transfer and assign to the Buyers,
and the Buyers desire to assume from the Seller certain liabilities and
obligations of the Transferred Businesses as specifically provided in this
Agreement; and


 


WHEREAS,
subject to the terms and conditions hereof, the Seller desires to retain and
not sell, transfer or assign to the Buyers certain assets used in connection
with, and certain of the liabilities and obligations of, the businesses or
portions of businesses conducted by the Seller Group other than the Transferred
Businesses (collectively, the “Retained Businesses”).


 


NOW,
THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth herein, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:


 


ARTICLE 1. INTERPRETATION.


 


1.1       Definitions.  In addition to the terms defined elsewhere
herein, the following terms, as used herein, shall have the following meanings
when used herein with initial capital letters:


 


“Acquired
Leases” has the meaning ascribed to such term in Section 2.1(b) hereof.


 


“Acquired
Premises” means the premises subject to any of the Acquired Leases.


 


“Affiliate”
means, in relation to any Person, any other Person that directly or indirectly
controls, that is directly or indirectly controlled by, or that is under the
direct or indirect common control of, such Person.  For purposes of this definition, “control”
means, in respect of any Person, the power or authority to direct, or cause the
direction of, directly or indirectly, the


 

















 


management, policies or actions of such other
Person, whether through the ownership of equity securities or voting securities
or by contract or otherwise.


 


“Agreement”
has the meaning ascribed to such term in the Preamble hereof.


 


“Allocation
Schedules” has the meaning ascribed to such term in Section 2.9
hereof.


 


“Applicable
Law” means all applicable provisions of all statutes, laws, rules,
regulations, administrative codes, ordinances, decrees, Orders, decisions,
injunctions, awards and judgments of or from Governmental Authorities.


 


“Assigned
Contract” means any Contract assigned to a Buyer pursuant to Section 2.1
hereof.


 


“Assigned
Internet Contracts” means those Contracts listed on Exhibit 2(a)(i) or
Exhibit 2(a)(ii).


 


“Assigned
Material Commitment” means any Assigned
Contract (other than a Lease) which is material in nature or could lead to a
payment or Liability by or on the part of the Seller Group in excess of
$200,000 per Assigned Contract or series of related Assigned Contracts for any
one (1) year period.


 


“Assignment
and Assumption Agreement” has the meaning ascribed to such term in Section 2.7
hereof.


 


“Assignment
Consent” has the meaning ascribed to such term in Section 2.10(a) hereof.


 


“Assumed
Internet Liabilities” has the meaning ascribed to such term in Section 2.3(a) hereof.


 


“Assumed
Liabilities” means the Assumed Internet Liabilities and the Assumed Real
Estate Liabilities.


 


“Assumed
Real Estate Liabilities” has the meaning ascribed to such term in Section 2.3(b) hereof.


 


“Bankruptcy
Law” means the Bankruptcy Reform Act of 1978, 11 U.S.C §§ 101, et seq., as amended, or any other federal,
state or foreign law or legal or equitable remedy relating to bankruptcy,
insolvency, reorganization, liquidation, dissolution, winding up or composition
or adjustment of debts, creditors’ rights and/or the disposition of a legal
estate for the benefit of creditors.


 


“Bill
of Sale” has the meaning ascribed to such term in Section 2.7(a) hereof.


 


“Business
Day” means any day other than (a) a Saturday or Sunday or (b) a
day on which banking institutions located in New York, New York are permitted
or required by Applicable Law to remain closed.


 


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“Business Material Adverse Effect”
means an Internet Business Material Adverse Effect or a Real Estate Business
Material Adverse Effect.


 


“Buyers”
means the Trade Name Buyer, the Domain Name Buyer and the Real Estate Buyer
and, subject to Section 10.7, any permitted assignees thereof.


 


“Buyer
Confidential Information” means any Confidential Information relating to
the Purchased Assets, the Assumed Liabilities or the Transferred Businesses.


 


“Buyer
Guaranteed Obligations” has the meaning ascribed to such term in Section 10.16(a) hereof.


 


“Buyer
Indemnified Parties” means the Buyers and Systemax and their respective
Affiliates and persons serving as officers, directors, partners or employees
thereof.


 


“Buyer
Losses” has the meaning ascribed to such term in Section 9.2 hereof.


 


“Buyer
Material Adverse Effect” means a material adverse effect on the ability of
the Buyer to timely consummate the transactions contemplated by, or perform its
obligations under, this Agreement.


 


“Closing”
means the Internet Closing or a Real Estate Closing.


 


“Closing
Notice” has the meaning ascribed to such term in Section 2.1(b) hereof.


 


“Closing
Date” means the Internet Closing Date or a Real Estate Closing Date.


 


“Code”
means the U.S. Internal Revenue Code of 1986, as amended.


 


“Confidential
Information” means any information or data, whether or not in writing,
pertaining to the business, financial condition, products, services, business
plans, business methodologies, business strategies, technologies, processes,
trade secrets, know-how, Intellectual Property, and customer lists of the
applicable party, but shall not include (A) information which, as of the
date hereof, is published or otherwise generally available to the public, (B) information
which after the date hereof becomes available to the public other than through
an act or omission of a party which is in violation of the provisions hereof,
or (C) information rightfully acquired from a third party that did not
obtain such information pursuant to an obligation of confidentiality.


 


“Contract”
means any contract, lease, license, subcontract, binding understanding, binding
instrument, indenture, note or other agreement, whether verbal or written,
including any and all amendments thereto.


 


“Domain
Name Buyer” has the meaning ascribed to such term in the Preamble hereof
and, subject to Section 10.7, any permitted assignee thereof.


 


“Domain
Name Purchase Price” has the meaning ascribed to such term in Section 2.5(a) hereof.


 


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“Effect”
has the meaning ascribed to such term in the definition of Internet Business
Material Adverse Effect.


 


“Environmental
Laws” means all applicable federal,
state, county or local laws, ordinances or regulations relating to the
generation, discharge, Release, containment, storage, transportation, disposal,
assessment or cleanup of Hazardous Materials or other contaminants or similar
materials, including the following: (1) the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, 42 U.S.C. §9601 et seq.; (2) the
Toxic Substances Control Act, 15 U.S.C. §2601 et seq.; (3) the Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §136; (4) the
Hazardous Materials Transportation Act, 49 U.S.C. §§1801 to 1812; (5) the
Federal Water Pollution Control Act, 32 U.S.C. §1251 et seq.; (6) the
Federal Solid Waste Disposal Act, 42 U.S.C. §6901; (7) the Federal Clean
Air Act, 42 U.S.C. §7401 et seq.; and (8) any other federal, state,
county, or local statutes or implementing regulations (or any other statutes or
implementing regulations of any other Governmental Authority) relating to,
regulating, or having jurisdiction over, any environmental contamination,
Hazardous Material, environmental condition or Release, or over any threat
of a Release.


 


“GAAP”
means generally accepted accounting principles as in effect from time to time
in the United States.


 


“Governmental
Authority” means any domestic or
foreign court, government, governmental agency, authority, entity or
instrumentality.


 


“Hazardous
Material” means any pollutant, toxic substance, hazardous waste, hazardous
material, hazardous substance or oil or other petroleum product that could result
in the imposition of liability under any Environmental Law.


 


“Intellectual
Property” means all worldwide intellectual property rights including,
without limitation, all:


 


(i)                                     Domestic and
foreign copyrights in any work of authorship, whether registered or
unregistered, including but not limited to all copyright registrations or
foreign equivalent, all applications for registration or foreign equivalent,
all moral rights, all common-law rights, and all rights to register and obtain
renewals and extensions of copyright registrations, together with all other
copyright interests accruing by reason of international copyright convention (“Copyrights”);


 


(ii)                                  Domestic and
foreign trademarks, trade dress, service marks, trade names, icons, logos,
slogans, and any other indicia of source or sponsorship of goods and services,
designs and logotypes related to the above, in any and all forms, all trademark
registrations and applications for registration related to such trademarks
(including, but not limited to intent to use applications), and all goodwill
related to the foregoing (“Trademarks”);


 


(iii)                               Domestic and
foreign patents and patent applications, and all inventions, processes,
methods, techniques, observations, discoveries, apparatuses, machines, designs,
theories and ideas, whether or not patentable (“Patents”);


 


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(iv)                              Domain name
registrations (“Domain Names”);


 


(v)                                 the information
and data described on Exhibit 1.1 (collectively, “Specified Data”);


 


(vi)                              Trade secrets
and know how including, but not limited to, any formula, design, device or
compilation, or other information or know how, which is used or held for use by
a business, which gives the holder thereof an advantage or opportunity for
advantage over competitors which do not have or use the same, and which is not
generally known by the public (including, by way of example, scientific,
engineering, mechanical, electrical, financial, marketing or practical
knowledge or experience useful in the operation of a business, formulae,
algorithms, market surveys, market research studies, information contained on
drawings and other documents, and information relating to research, development
or testing) (collectively, “Trade Secrets”);


 


(vii)                           (A) any
and all computer programs and/or software programs (including all source code,
object code, firmware, programming tools and/or documentation), (B) machine
readable databases and compilations, including any and all data and collections
of data, and (C) all content contained on Internet site(s) (collectively,
“Software”);


 


(viii)                        all
applications, registrations, documentation and media constituting, describing
or relating to the above, including memoranda, manuals, technical
specifications, schematics, and other records wherever created throughout the
world; and


 


(ix)                                the right to
sue for past, present, or future infringement and to collect and retain all
damages and profits related to the foregoing.


 


“Intellectual
Property Assignment Agreements” has the meaning ascribed to such term in Section 2.7(a) hereof.


 


“Internet
Business Material Adverse Effect” any material adverse change in, or
material adverse effect on (any such change or effect, an “Effect”), the
Transferred Internet Business, the Purchased Internet Assets or the Assumed
Internet Liabilities taken as a whole; provided, however, that in
no event shall any of the following, individually or in the aggregate,
constitute, or be considered in determining whether there has occurred, an
Internet Business Material Adverse Effect:


 


(i)                                     any Effect
resulting from compliance with the terms and conditions of, or the taking of
any action (or any failure to act) required by, this Agreement;


 


(ii)                                  any Effect
resulting from general economic, political or financial market conditions, or
from any acts of war or terrorism;


 


(iii)                               any Effect
resulting from changes in Applicable Law or GAAP or the interpretation thereof;


 


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(iv)                              any Effect
resulting from changes affecting the industry in which the Transferred Internet
Business operates generally; and


 


(v)                                 any Effect
resulting from the announcement of the execution of this Agreement or the
announcement or pendency of the transactions contemplated hereby.


 


“Internet
Buyers” means the Trade Name Buyer and the Domain Name Buyer and, subject
to Section 10.7, any permitted assign thereof.


 


“Internet
Closing” has the meaning ascribed to such term in Section 2.6(a) hereof.


 


“Internet
Closing Date” has the meaning ascribed to such term in Section 2.6(a) hereof.


 


“Internet
Seller Group” means the members of the Seller Group selling Purchased
Internet Assets, including, without limitation, CompUSA Holdings II Inc., a
Delaware corporation.


 


“Internet
Transfer Instruments” has the meaning ascribed to such term in Section 2.7(a) hereof.


 


“Knowledge”
means the actual knowledge of Roman Ross, Mohammod Huda, Amy Roberts, Ed Coder
and Johnnie Goodner.


 


“Lease”
has the meaning ascribed to such term in Section 4.10 hereof.


 


“Lease
Assignments” has the meaning ascribed to such term in Section 2.7(b) hereof.


 


“Legal Proceeding” means any claim, action, suit,
proceeding or investigation in or before any Governmental Authority, whether
brought, initiated, asserted or maintained by a Governmental Authority or any
other Person or entity.


 


“Liabilities”
means any and all liabilities, obligations, guarantees (including, without
limitation, lease guarantees) or commitments of any nature or kind, whether
known or unknown, fixed, accrued, absolute or contingent, liquidated or
unliquidated, matured or unmatured, including all costs and expenses relating
thereto.


 


“Lien”
means any lien, mortgage, security interest, charge, claim, pledge or
encumbrance of any kind.


 


“Losses”
means all damages, liabilities, losses, diminution in value, Taxes, fines,
penalties, costs, and expenses (including, without limitation, reasonable fees
of counsel) of any kind or nature whatsoever, whether or not arising out of
third-party claims and including, without limitation, all amounts paid in investigation,
defense or settlement of the foregoing but which, for the avoidance of doubt, shall in no event be assessed at an
enterprise value or other method implying a multiple of such actual losses,
damages, liabilities, charges, costs and expenses.


 


“Neutral
Accounting Firm” has the meaning ascribed to such term in Section 2.9.


 


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“Non-Assignable
Asset” has the meaning ascribed to such term in Section 2.10(a) hereof.


 


“Operative
Agreements” has the meaning ascribed to such term in Section 10.6
hereof.


 


“Order”
means any order, ruling, writ, judgment,
injunction or decree.


 


“Organizational
Documents” means as to any Person, its certificate or articles of
incorporation, charter, by-laws or similar organizational documents, as amended
to the date hereof.


 


“Parties”
means, collectively, Systemax, the Buyers and the Seller.


 


“Permitted
Liens” means all (a) Liens for Taxes not yet due and payable or that
are being contested in good faith or that may thereafter be paid without
penalty; (b) mechanics’, carriers’, worker’s, landlord’s and other similar
Liens arising or incurred in the ordinary course of business; (c) Liens
that secure obligations that are reflected as liabilities on, or that are
otherwise disclosed in, the unaudited consolidated balance sheet of the Seller
Group as of September 29, 2007, and that are listed in Section 3.1(b) of
the Seller Disclosure Schedule (the “Terminable Liens”; (d) zoning,
building codes, deed restrictions and other land use laws regulating the use or
occupancy of such Purchased Assets; and (e) other imperfections of title
or encumbrances, if any, that do not in the aggregate have a Business Material
Adverse Effect or materially interfere with any current use or occupancy of the
Purchased Assets in the operation of the Transferred Businesses, taken as a
whole (the “Non-Material Liens”).


 


“Person”
means any natural person, firm, partnership, association, corporation, company,
trust, business trust, Governmental Authority or other entity.


 


“Proprietary
Rights Agreements” has the meaning ascribed to such term in Section 10.1(b) hereof.


 


“Purchased
Assets” means the Purchased Internet Assets and the Purchased Real Estate
Assets.


 


“Purchased
Internet Assets” has the meaning ascribed to such term in Section 2.1(a) hereof.


 


“Purchased
Real Estate Assets” has the meaning ascribed to such term in Section 2.1(b) hereof.


 


“Real
Estate Business Material Adverse Effect” means any Effect on the
Transferred Real Estate Business, the Purchased Real Estate Assets or the
Assumed Real Estate Liabilities taken as a whole; provided, however,
that in no event shall any of the following, individually or in the aggregate,
constitute, or be considered in determining whether there has occurred, a Real
Estate Business Material Adverse Effect:


 


(i)                                     any Effect
resulting from compliance with the terms and conditions of, or the taking of
any action (or any failure to act) required by, this Agreement;


 


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(ii)                                  any Effect resulting
from general economic, political or financial market conditions, or from any
acts of war or terrorism;


 


(iii)                               any Effect
resulting from changes in Applicable Law or GAAP or the interpretation thereof;


 


(iv)                              any Effect
resulting from changes affecting the industry in which the Transferred Real
Estate Business operates generally; and


 


(v)                                 any Effect
resulting from the announcement of the execution of this Agreement or the
announcement or pendency of the transactions contemplated hereby.


 


“Real
Estate Buyer” has the meaning ascribed to such term in the Preamble hereof
and, subject to Section 10.7, any permitted assignee thereof.


 


“Real
Estate Closing” has the meaning ascribed to such term in Section 2.6(b) hereof.


 


“Real
Estate Closing Date” has the meaning ascribed to such term in Section 2.6(b) hereof.


 


“Real
Estate Purchase Price” has the meaning ascribed to such term in Section 2.5(b) hereof.


 


“Real
Estate Seller Group” means the members of the Seller Group selling
Purchased Real Estate Assets.


 


“Real
Estate Transfer Instruments” has the meaning ascribed to such term in Section 2.7(b) hereof.


 


“Release”
means any releasing, spilling, leaking,
pumping, pouring, emitting, emptying, discharging, injecting, escaping,
leaching, disposing or dumping into the soil, surface waters, groundwaters,
land, stream sediments, surface or subsurface strata, ambient air or any other
environmental medium.


 


“Retained
Businesses” has the meaning ascribed to such term in the Preamble hereof.


 


“Retained
Liabilities” has the meaning ascribed to such term in Section 2.4
hereof.


 


“Seller”
has the meaning ascribed to such term in the Preamble hereof.


 


“Seller
Confidential Information” means any Confidential Information owned or
controlled by the Seller or any of its Affiliates other than Confidential
Information relating solely to the Purchased Assets, the Assumed Liabilities or
the Transferred Businesses.


 


“Seller
Disclosure Schedule” has the meaning ascribed to such term in the
introductory paragraph to Article 3 hereof.


 


“Seller
Group” has the meaning ascribed to such term in the Preamble hereof.


 


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“Seller
Indemnified Parties” means the Seller and its Affiliates and persons
serving as officers, directors, partners or employees thereof.


 


“Seller
Losses” has the meaning ascribed to such term in Section 9.3 hereof.


 


“Seller
Material Adverse Effect” means a material adverse effect on the ability of
the Seller to timely consummate the transactions contemplated by, or perform
its obligations under, this Agreement.


 


“Shared
Assets” has the meaning ascribed to such term in Section 2.8(e) hereof.


 


“Subsidiary”
of a Buyer, the Seller or any other Person means any corporation, partnership
or other legal entity of which a Buyer, Seller or such other Person, as the
case may be (either alone or through or together with any other Subsidiary),
owns, directly or indirectly, more than 50% of the stock or other equity
interests the holder of which is generally entitled to vote for the election of
the board of directors or other governing body of such corporation or other
legal entity.


 


“Systemax”
has the meaning ascribed to such term in the Preamble hereof.


 


“Taxes”
means any and all taxes, charges, fees, levies or other similar assessments or
liabilities, including, without limitation, income, gross receipts, ad valorem,
premium, value-added, excise, real property, personal property, sales, use,
services, license alternative or add-on minimum, transfer, withholding,
employment, payroll and franchise taxes imposed by any Governmental Authority,
and any interest, fines, penalties, assessments or additions to tax resulting
from, attributable to or incurred in connection with any tax or any contest or
dispute thereof.


 


“Threshold”
has the meaning ascribed to such term in Section 9.4(a)(i)(A) hereof.


 


“Trade
Name Buyer” has the meaning ascribed to such term in the Preamble hereof
and, subject to Section 10.7, any permitted assignee thereof.


 


“Trade
Name Purchase Price” has the meaning ascribed to such term in Section 2.5(a) hereof.


 


“Trademark
License Agreement” has the meaning ascribed to such term in Section 2.7(a) hereof.


 


“Transfer
Instruments” means the Real Estate Transfer Instruments and the Internet
Transfer Instruments.


 


“Transferred
Businesses” means the Transferred Internet Business and the Transferred
Real Estate Business.


 


“Transferred
Internet Business” means the business conducted by the Seller Group in the
retail and resale of personal computers and related products and services on
the Internet, including, without limitation, the Seller Group’s websites
identified by the URLs:


 


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CompUSA.com, Compusabusiness.com, Compusaauction.com
and its auction business on Overstock.com, Ebay.com and other third party
auction sites.


 


“Transferred
Real Estate Business” means the business conducted by the Seller Group in
the retail and resale of personal computers, consumer electronics and related
products and services at the Acquired Premises.


 


“United
States” or “U.S.” means the United States of America, its
territories and possessions.


 


1.2       Currency.  Unless otherwise indicated, all dollar
amounts referred to in this Agreement are expressed in U.S. dollars.


 


1.3       Sections; Cross References;
Headings.  Unless the
context requires otherwise, when reference is made in this Agreement to an
Article, Section, Schedule or Exhibit, such reference shall be to an Article,
Section, Schedule or Exhibit, respectively, of this Agreement.  Unless the context requires otherwise, the
words “hereof”, “hereby” and “herein” and words of similar meaning when used in
this Agreement refer to this Agreement in its entirety and not to any
particular Section or provision of this Agreement.  The table of contents and headings contained
in this Agreement are for convenience of reference only and shall not affect in
any way the meaning or interpretation of this Agreement.


 


1.4       Rules of
Construction.


 


(a)          The Parties acknowledge that
this Agreement is the product of negotiation between sophisticated parties, all
of whom were represented by counsel, and each of whom had an opportunity to
participate in and did participate in, the drafting of each provision
hereof.  Accordingly, ambiguities in this
Agreement, if any, shall not be construed strictly or in favor of or against
any Party but rather shall be given a fair and reasonable construction without
regard to the rule of contra
proferentem.


 


(b)         Whenever the context may
require, any pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.  The
definitions of terms herein shall apply equally to the singular and plural
forms of the terms defined.


 


(c)          Unless the context requires
otherwise, (i) any definition of or reference to any agreement, instrument
or other document shall be construed as referring to such agreement, instrument
or other document as from time to time amended, supplemented or otherwise
modified, (ii) any reference herein to any Person shall be construed to
include such Person’s successors and assigns and (iii) any reference to
any law shall include all statutory and regulatory provisions consolidating,
amending, replacing or interpreting such law.


 


1.5       Times of Day.  Unless otherwise specified, all references
herein to times of day shall be references to Eastern time (daylight or
standard, as applicable).


 


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ARTICLE 2. PURCHASE AND SALE
OF ASSETS.


 


2.1       Sale of Assets.


 


(a)          On the Internet Closing Date
and subject to the provisions of this Agreement, the Seller shall sell,
transfer and assign or shall cause its Affiliates to sell, transfer and assign,
free and clear from any and all Liens (other than Permitted Liens that are not
Terminable Liens), and the applicable Internet Buyer shall purchase all right,
title and interest the Seller Group possesses in and to the following property,
assets, and Contracts (i) to the Trade Name Buyer the properties, assets
and Contracts listed on Exhibit 2.1(a)(i) attached hereto and
any benefits of any insurance coverage (to the extent transferable) related to
the foregoing properties, assets and Contracts and (ii) to the Domain Name
Buyer the properties, assets and Contracts listed on Exhibit 2.1(a)(ii) attached
hereto and any benefits of any insurance coverage (to the extent transferable)
related to the foregoing properties, assets and Contracts (collectively,
clauses (i) and (ii), the “Purchased Internet Assets”).


 


(b)         Subject to Section 10.17
hereof, within five (5) Business Days following the receipt of a required
landlord consent to the assignment of, or the satisfaction of a notice
requirement under, any lease identified on the “Preferred List” on  Exhibit 2.1(b)(i) attached
hereto (each, an “Acquired Lease”), the Seller shall deliver to the Real
Estate Buyer one or more notices stating that such consent has been received or
such notice requirement has been satisfied (each, a “Closing Notice”); provided
that with respect to any Acquired Lease for which no consent or notice to
assignment is required, the Seller shall give the Closing Notice within ten (10) Business
Days of the Internet Closing Date; provided, further, that in the event
Seller has not by January 31, 2008 negotiated extensions to those leases
on the Preferred List on Exhibit 2.1(b)(i) with lease expiration
dates earlier than February 28, 2018, including any options to renew, to
provide for lease expiration dates of later than February 28, 2018 and
otherwise on substantially the same terms as the current lease or on terms
consistent with fair market value, Real Estate Buyer shall have the option of (a) purchasing
such leases at the amount set forth in Section 2.5(b)(i) hereto or (b) selecting
a lease from the Alternate List on Exhibit 2.1(b)(i) and any leases
so selected shall be deemed to be an “Acquired Lease” in lieu of the lease for
which Seller was unable to receive an extension or (c) so long as the Real
Estate Buyer purchases no fewer than fifteen (15) leases, terminating its
obligation to purchase such lease.  Each
Closing Notice shall specify the Real Estate Closing Date for the closing of
the purchase of the applicable Acquired Lease (which Real Estate Closing Date
shall be as soon as reasonably practicable but in no event later than February 29, 2008).  On such Real Estate Closing Date and subject
to the provisions of this Agreement, the Seller shall sell, transfer and assign
or shall cause its appropriate Affiliate to sell, transfer and assign to the
Real Estate Buyer free and clear from any and all Liens (other than Permitted
Liens that are not Terminable Liens), and the Real Estate Buyer shall purchase
all right, title and interest the Seller Group possesses in and to the
properties, assets and Contracts listed on Exhibit 2.1(b)(ii) attached
hereto and any benefits of any insurance coverage (to the extent transferable)
related to the foregoing properties, assets and Contracts (collectively, the “Purchased
Real Estate Assets”).


 


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2.2       Retained Assets.


 


(a)          The Purchased Internet
Assets shall not include any assets, rights or properties not identified in Section 2.1(a).  Without limiting the generality of the
foregoing sentence and notwithstanding anything to the contrary herein, the
Seller or its Affiliates shall retain all of their respective right, title and
interest in and to, and shall not, and shall not be deemed to, sell, transfer,
assign, convey or deliver to the Internet Buyers, and the Purchased Internet
Assets shall not, and shall not be deemed to, include, the assets, rights or
properties described in Exhibit 2.2(a) attached hereto.


 


(b)         The Purchased Real Estate
Assets shall not include any assets, rights or properties not identified in Section 2.1(b).  Without limiting the generality of the
foregoing sentence and notwithstanding anything to the contrary herein, the
Seller or its Affiliates shall retain all of their respective right, title and
interest in and to, and shall not, and shall not be deemed to, sell, transfer,
assign, convey or deliver to the Real Estate Buyer, and the Purchased Real
Estate Assets shall not, and shall not be deemed to, include, the assets,
rights or properties described in Exhibit 2.2(b) attached
hereto.


 


2.3       Assumed Liabilities.


 


(a)          Upon the terms and subject
to the conditions set forth in this Agreement, the applicable Internet Buyer
hereby assumes and agrees to pay, perform and discharge when due all
Liabilities of the Seller Group whether arising on, prior to or after the
Internet Closing Date, to the extent arising out of or relating to, or incurred
in connection with any sales by the Seller with respect to the Transferred
Internet Business which result in the return of merchandise in accordance with
the Seller’s return policy in effect as of the date of the sale of such
merchandise, and all Liabilities of the Seller Group arising after the Internet
Closing Date to the extent arising out of or relating to, or incurred in
connection with the Assigned Internet Contracts or any of the other Purchased
Internet Assets (collectively, the “Assumed Internet Liabilities”).  The assumption of the Assumed Internet
Liabilities by the Internet Buyers shall not enlarge any rights of third
parties under any Contract or arrangement with the Internet Buyers or the
Seller, and nothing herein shall prevent any Party from contesting in good
faith with any third party any Liability.


 


(b)         Upon the terms and subject
to the conditions set forth in this Agreement, the Real Estate Buyer hereby
assumes and agrees to pay, perform and discharge when due all Liabilities of
the Seller Group arising after any Real Estate Closing Date, to the extent
arising out of or relating to, or incurred in connection with any of the
Assigned Contracts relating to or any of the other Purchased Real Estate Assets
transferred on such Real Estate Closing Date (collectively, the “Assumed
Real Estate Liabilities”).  The
assumption of the Assumed Real Estate Liabilities by the Real Estate Buyer
shall not enlarge any rights of third parties under any Contract or arrangement
with the Real Estate Buyer or the Seller, and nothing herein shall prevent any
Party from contesting in good faith with any third party any Liability.


 


2.4       Retained Liabilities.  The Buyers do not assume, or agree to pay,
perform, discharge or be responsible for, any Liability (other than Assumed
Liabilities and other Liabilities for which Buyers are responsible under the
terms of this Agreement) of any member 


 


12





















 


of
the Seller Group or any Affiliates or predecessors thereof, whether known or
unknown, accrued, absolute, fixed, contingent, or otherwise, and whether now
existing or hereafter arising (collectively, the “Retained Liabilities”).  Without limiting the generality of the
foregoing sentence, the Assumed Liabilities shall not, and shall not be deemed
to, include any of the following Liabilities:


 


(a)          any outstanding royalties,
accounts payable, warranty claims, rebate obligations, gift card obligations or
Liabilities relating to the employment of employees;


 


(b)         any Liabilities for Taxes
related to the Transferred Internet Business or the Purchased Internet Assets
for any tax period ending on or prior to the Internet Closing (or attributable
to the pre-closing period for tax periods beginning before but ending after the
Internet Closing Date (but only for such portions of such periods prior to the
Internet Closing Date)), any Liabilities for any Taxes related to the
Transferred Real Estate Business or Purchased Real Estate Assets for any tax
period ending on or prior to its applicable Real Estate Closing (or
attributable to the pre-closing period for tax periods beginning before but
ending after the applicable Real Estate Closing (but only for such portions of
such periods prior to the applicable Real Estate Closing Date)), any
Liabilities for Taxes with respect to any ongoing tax audits and any Taxes
resulting from failure to comply with applicable bulk sales laws;


 


(c)          any Liabilities arising out
of or resulting from (i) any legal proceeding related to the Transferred
Internet Business or any Transferred Real Estate Business pending or threatened
as of the Internet Closing Date or the applicable Real Estate Closing Date,
respectively, (ii) any legal proceeding related to the Transferred
Internet Business or the Transferred Real Estate Business filed after the
Internet Closing Date or the applicable Real Estate Closing Date, as the case
may be, relating to events occurring prior to such date or (iii) any
actual or alleged violation of any Applicable Law related to the Transferred
Internet Business or Transferred Real Estate Business relating to events
occurring prior to the Internet Closing or the applicable Real Estate Closing
Date, respectively; and


 


(d)         any Liability for any
chargeback actually deducted prior to, on or after the date hereof, to the
extent such chargeback relates to a transaction which occurred prior to the
Internet Closing Date (with respect to any Purchased Internet Asset) or the
applicable Real Estate Closing Date (with respect to any Purchased Real Estate
Asset).


 


2.5       Purchase Price and Payment.


 


(a)          In addition to the
assumption of the Assumed Internet Liabilities, the total aggregate purchase
price of the Purchased Internet Assets shall be the sum of Eighteen Million
Nine Hundred Thousand dollars ($18,900,000). The Trade Name Buyer and the
Domain Name Buyer shall deliver to the Seller their respective portions of the
purchase price of the Purchased Internet Assets (respectively, the “Domain
Name Purchase Price” and the “Trade Name Purchase Price”) by wire
transfer of immediately available funds, to an account or accounts designated
in writing by the Seller to the Internet Buyers, no later than 4:00 p.m.
on the Internet Closing Date.


 


(b)         In addition to the
assumption of the applicable Assumed Real Estate Liabilities, the total
aggregate purchase price of the Purchased Real Estate Assets with respect to 


 


13





















 


each
of the Acquired Premises shall be equal to the sum of: (i) the amount set
forth opposite such Acquired Premises on Exhibit 2.1(b)(i) hereto,
which such amount shall be pro rated in accordance with the formula in Exhibit 2.1(b)(i) in
the event that the remaining term of such Acquired Lease is less than ten (10) years
including any option to renew at substantially the same rent and conditions;
and (ii) $60,000 (for each of the Acquired Premises, the “Real Estate
Purchase Price”).  The Real Estate
Buyer shall deliver to the Seller the applicable Real Estate Purchase Price by
wire transfer of immediately available funds, to an account or accounts
designated in writing by the Seller to the Real Estate Buyer, no later than
4:00 p.m. on the applicable Real Estate Closing Date.


 


2.6       Closing.


 


(a)          The closing of the purchase
and sale of the Purchased Internet Assets and assumption of the Assumed
Internet Liabilities (the “Internet Closing”) shall be held at the
offices of Curtis, Mallet-Prevost, Colt & Mosle LLP at 101 Park
Avenue, New York, NY 10178, at 4:00 p.m. on January 9, 2008, or at
such other date, time or place as the Parties may mutually agree (the “Internet
Closing Date”).


 


(b)         The closing of the purchase
and sale of any Purchased Real Estate Assets and assumption of the applicable
Assumed Real Estate Liabilities (a “Real Estate Closing”) shall be held
at the offices of Curtis, Mallet-Prevost, Colt & Mosle LLP at 101 Park
Avenue, New York, NY 10178, at 4:00 p.m. on the date set forth in the
applicable Closing Notice, or at such other date, time or place as the Parties
may mutually agree (a “Real Estate Closing Date”).


 


2.7       Transfer of the Purchased
Assets.


 


(a)          At the Internet Closing, the
Purchased Internet Assets shall be sold, conveyed, transferred, assigned and
delivered, and the Assumed Internet Liabilities shall be assumed, pursuant to
transfer and assumption agreements and such other instruments in such form as
may be necessary or appropriate to effect a conveyance of the Purchased
Internet Assets and an assumption of the Assumed Internet Liabilities in the
jurisdictions in which such transfers and assumptions are to be made.  Such transfer and assumption agreements shall
be jointly prepared by the Seller and the Internet Buyer and shall include (to
the extent applicable): (i) a bill of sale in substantially the form
attached hereto as Exhibit 2.7(a)(i) (the “Bill of Sale”),
(ii) an assignment and assumption agreement in substantially the form
attached hereto as Exhibit 2.7(a)(ii) (the “Assignment and
Assumption Agreement”), (iii) assignments in substantially the form
attached hereto as Exhibit 2.7(a)(iii) (the “Intellectual
Property Assignment Agreements”), (iv) a license in substantially the
form attached hereto as Exhibit 2.7(a)(iv) (the “Trademark
License Agreement”), and (v) such other deeds, bills of sale,
assignments, certificates of title, documents and other instruments of transfer
and conveyance as may reasonably be required to effect the purchase and
assignment of the Purchased Internet Assets and the assumption of the Assumed
Internet Liabilities in form and substance reasonable satisfactory to the
Internet Buyers and the Seller (collectively, clauses (i) through (v), the
“Internet Transfer Instruments”).


 


(b)         At any Real Estate Closing,
the applicable Purchased Real Estate Assets shall be sold, conveyed,
transferred, assigned and delivered, and the applicable Assumed Real Estate
Liabilities shall be assumed, pursuant to transfer and assumption agreements
and such other 


 


14





















 


instruments
in such form as may be necessary or appropriate to effect a conveyance of the
applicable Purchased Real Estate Assets and an assumption of the applicable
Assumed Real Estate Liabilities in the jurisdictions in which such transfers
and assumptions are to be made.  Such
transfer and assumption agreements shall be jointly prepared by the Seller and
the Real Estate Buyer and shall include (to the extent applicable): (i) a
Bill of Sale, (ii) an Assignment and Assumption Agreement, (iii) lease
assignments with respect to any Acquired Lease in form and substance reasonably
acceptable to Real Estate Buyer and Seller (the “Lease Assignments”) or
such other appropriate document or instrument of transfer, as the case may
require, each in form and substance reasonably satisfactory to the Real Estate
Buyer and the Seller, and (iv) such other deeds, bills of sale,
assignments, certificates of title, documents and other instruments of transfer
and conveyance as may reasonably be required to effect the purchase and
assignment of the applicable Purchased Real Estate Assets and the assumption of
the applicable Assumed Real Estate Liabilities in form and substance reasonable
satisfactory to the Real Estate Buyer and the Seller (collectively, clauses (i) through
(iv), the “Real Estate Transfer Instruments”).


 


2.8       Further Assurances; Shared
Assets.


 


(a)          The Parties from time to
time after the Internet Closing and any Real Estate Closing and without further
consideration shall execute and deliver further instruments of transfer and
assignment and take such other action as a Party may reasonably request to more
effectively transfer and assign to, and vest in, the Internet Buyers the
Purchased Internet Assets (excluding the Purchased Internet Assets described on
Exhibit 1.1 hereof) and the Assumed Internet Liabilities and the
Real Estate Buyer the Purchased Real Estate Assets and the Assumed Real Estate
Liabilities, as the case may be.


 


(b)         On or after a Real Estate
Closing Date with respect to an Acquired Premises, and at the request of the
Real Estate Buyer, the Seller shall use commercially reasonable efforts to
facilitate the transfer from a lessor of equipment to the Real Estate Buyer of
leased equipment at such Acquired Premises subject, in each case, to the
assignability of the lease with respect to such equipment, the Real Estate
Buyer’s assuming liabilities under any such lease, and the Real Estate Buyer
paying any expenses related to the transfer of the leased equipment and the
lease.


 


(c)          The Seller shall, or shall
cause its Affiliates to use commercially reasonable  efforts to obtain each landlord’s consent to
the assignment to the Real Estate Buyer of the Acquired Leases, but shall not
be required to commence judicial proceedings for a declaration that a required
consent has been unreasonably withheld or delayed.  The Seller shall not, and shall not permit
any of its Affiliates to, (i) take any action to solicit, initiate,
encourage or assist the submission of any proposal, negotiation or offer from
any person or entity other than the Real Estate Buyer to the sale of the
Purchased Real Estate Assets or the assignment of the Acquired Leases or (ii) respond
to any inquiry or enter into any discussions, negotiations or execute any
agreement related to the foregoing (it being understood, for the avoidance of
doubt, that the Seller’s obligations under this Section 2.8(c) shall
terminate with respect to any Purchased Real Estate Assets and/or Acquired
Lease, the sale of which is terminated pursuant to Section 10.17 hereof).


 


(d)         The Internet Buyers and the
Seller agree to use commercially reasonable efforts to complete the Internet
Transfer Instruments following the Internet Closing, including 


 


15





















 


but
not limited to the individual country trademark assignment documents necessary
to pass title to the appropriate Internet Buyer.  The Seller agrees to execute such individual
country trademark assignment documents at its own expense, and the Internet
Buyers shall be responsible for all costs associated with any legalization and
recording requirements for such assignment documents.


 


(e)          As of the date hereof,
certain of the Purchased Assets are used by the Seller Group in connection with
both the Transferred Businesses and the Retained Businesses (the “Shared
Assets”).  The Buyers and the Seller
agree to cooperate in good faith to execute by the Internet Closing Date such
documents as are necessary to provide the Seller with reasonable access to, and
use of, the Shared Assets for a period of up to ninety (90) days (or up to 12
months with respect to email addresses) following the Internet Closing
Date.  For one year following the
Internet Closing Date (the “Initial Year”), the Seller may retain a copy
of the Specified Data and shall not use the Specified Data without the consent
of the Buyers (such consent not to be unreasonably withheld) other than (i) to
allow the Seller to comply with tax audits and tax reporting, (ii) to
allow the Seller to respond to governmental inquires and reporting requirements
and (iii) for reasonable use in connection with litigation (collectively,
clauses (i) through (iii), the “Permitted Uses”); provided, however,
that the Seller shall promptly notify the Buyers of any Permitted Use of the
Specified Data.  Within the Initial Year
and upon five (5) Business Days’ notice by the Buyers to the Seller, the
Seller shall afford to the Buyers and their authorized personnel and
representatives reasonable access during normal business hours for reasonable
investigation of the use of the Specified Data and the measures used by the
Seller to secure the Specified Data.  At
the request of the Buyers and only to the extent that it is commercially
reasonable, the Seller shall cure any defect identified by the Buyers with
respect to the measures used by the Seller to secure the Specified Data.  In addition, within five (5) Business
Days of the Internet Closing Date, the Seller will give to the Buyers
documentation describing the measures used by the Seller to secure the
Specified Data and, if the Buyers reasonably object to such measures, shall
make such commercially reasonable improvements thereto that the Buyers
reasonably request.  Prior to or on the
first (1st) anniversary of the Internet Closing Date, the Seller
shall store the Specified Data in, or otherwise transfer the Specified Data to,
a mutually acceptable, commercially reasonable third party data security firm,
escrow or similar security mechanism (a “Data Escrow”), and shall
permanently erase, purge and otherwise destroy any and all other copies of the
Specified Data.  After the first (1st)
anniversary of the Internet Closing Date, the Seller may access the Specified
Data only with the consent of the Buyers (such consent not to be unreasonably
withheld or delayed); provided, that if the Seller requires access to
the Specified Data for a Permitted Use and it is impractical to wait for the
Buyers’ consent, the Seller may access the Specified Data upon five (5) Business
Days’ notice to the applicable Data Escrow and the Buyers.  If the Buyers reasonably object to the Seller’s
access to the Specified Data within such five-Business Day period, the Parties
shall reasonably agree on reasonable terms for the Seller to access the
Specified Data.  The Seller shall not at
any time use the Specified Data to send, or cause to be sent, any
correspondence to any Person.  The
Parties will take reasonable steps that are at least consistent with the
industry standard to secure the Specified Data. 
From and after the Internet Closing Date, the Seller and the Seller
Group shall discontinue all use of the Intellectual Property purchased by the
Internet Buyers under this Agreement and neither the Seller nor any of its
Affiliates shall infringe any trademark, tradename or other Intellectual
Property transferred to the Internet Buyers hereunder; provided, however,
that the 


 


16





















 


Seller
shall have a limited and non-exclusive right and license to use certain
trademarks and tradenames for the purpose of conducting certain aspects of the
Retained Businesses for a period of up to ninety (90) days following the
Internet Closing Date pursuant to the terms of the Trademark License Agreement,
which license shall provide for Seller’s use of “compusa.com” email addresses
through Buyer’s servers.  Prior to or on
the second (2nd) anniversary of the Internet Closing Date, Systemax
and each of the Buyers shall, and shall cause their Affiliates to store the
Specified Data in, or otherwise transfer the Specified Data to, a Data Escrow
and permanently erase, purge and otherwise destroy all other copies of the
Specified Data, other than such data relating to any individual who has
accepted the provisions of any privacy policy or other contract that contains
terms governing the collection, receipt, use, disclosure and transfer of such
data and that is effective after the Internet Closing Date (whether by
purchasing a product from the Internet Buyers or otherwise).


 


2.9       Allocation of Purchase Price.


 


(a)          Within ninety (90) days
after each of the Internet Closing and any Real Estate Closing, the Internet
Buyers and the Real Estate Buyer, as applicable, shall prepare an allocation of
the Trade Name Purchase Price and Domain Name Purchase Price and the applicable
Real Estate Purchase Price (and all other capitalized costs) among the
Purchased Internet Assets and the applicable Purchased Real Estate Assets,
respectively, in accordance with Section 1060 of the Code (the “Allocation
Schedules”).


 


(b)         If the Seller gives written
notice to a Buyer of its dissatisfaction with an Allocation Schedule within
fifteen (15) Business Days after receipt thereof, such Buyer and the Seller
shall cooperate in good faith with each other and negotiate in good faith for a
period of ten (10) Business Days to resolve any disputed items.  If such Parties fail to agree on such
allocation, the dispute shall be submitted to an independent Big Four
accounting firm mutually acceptable to Seller and the applicable Buyer (the “Neutral
Accounting Firm”), whose decision shall be binding on all parties. The
Buyers, Systemax and the Seller shall file all Tax returns (including IRS form
8594) consistently therewith (to the extent such filing is required by Applicable
Law).  The Seller shall cooperate with a
Buyer’s or Systemax’s reasonable requests in connection with the preparation by
a Buyer or Systemax of the Allocation Schedules.  No Party shall take any position (whether in
a Tax return or otherwise) that is inconsistent with the finally determined
Allocation Schedules, unless required to do so by Applicable Law or any
Order.  All costs and expenses of any
independent accountant shall be paid by the Internet Buyer or Real Estate Buyer
which prepared the applicable Allocation Schedule; provided that the costs
expenses of the Neutral Accounting Firm shall be shared equally by the
applicable Buyer and Seller.


 


2.10                        Non-Assignable
Assets.


 


(a)          Notwithstanding anything to
the contrary contained in this Agreement, if any of the Assigned Contracts or
other Purchased Assets or Assumed Liabilities (other than the Acquired Leases
or Specified Data) are not assignable, assumable or transferable (each, a “Non-Assignable
Asset”) without the consent of, or waiver by, a third party (each, an “Assignment
Consent”), either as a result of the provisions thereof or of Applicable
Law, and any of such Assignment Consents are not obtained on or prior to the
applicable Closing Date, the applicable Buyer shall discharge and perform the
obligations arising under any such Non-Assignable Asset 


 


17





















 


from
and after such Closing Date, to the extent provided under Section 2.3, but
no Non-Assignable Asset shall be included in the Purchased Assets or Assumed
Liabilities and transferred hereunder unless and until an Assignment Consent is
obtained with respect thereto.


 


(b)         Following the Internet
Closing Date and any Real Estate Closing Date, the Parties shall use
commercially reasonable efforts, and shall cooperate with each other, to obtain
promptly each Assignment Consent; provided, however, that neither
Party nor any of its Affiliates shall be required to pay any consideration
therefor.  Subject to Section 10.3(b),
once such Assignment Consent is obtained, the Seller shall, or shall cause its
Subsidiaries to, sell, transfer and assign such Non-Assignable Asset to the
applicable Buyer for no additional consideration.


 


(c)          To the extent that any
Non-Assignable Asset cannot be provided to the applicable Buyer following a
Closing pursuant to this Section 2.10, the applicable Buyer and the Seller
shall use commercially reasonable efforts to enter into such arrangements
(including, without limitation, subleasing, sublicensing or subcontracting) and
take such other commercially reasonable actions to provide to the applicable
Parties the economic (taking into account Tax costs and benefits) and, to the
extent permitted under Applicable Law, operational equivalent of obtaining such
Assignment Consent and the performance by the applicable Buyer of its
obligations thereunder.  To the extent
permitted under Applicable Law, the Seller shall hold in trust for and pay to
the applicable Buyer promptly upon receipt thereof, such Non-Assignable Assets
and all income, proceeds and other monies received by the Seller to the extent
related to any such Non-Assignable Asset in connection with the arrangements
under this Section 2.10.  The Seller
shall be permitted to set off against such amounts all direct costs and
expenses associated with the retention and maintenance of such Non-Assignable
Assets.


 


ARTICLE 3. REPRESENTATIONS AND
WARRANTIES AND DISCLOSURES OF THE SELLER WITH RESPECT TO THE PURCHASED INTERNET
ASSETS.


 


Except
as set forth herein or in the Seller’s disclosure schedule accompanying this
Agreement (the “Seller Disclosure Schedule”), the Seller represents and
warrants to the Internet Buyers as follows (with each representation and
warranty being made as of the date of this Agreement, other than those made as
of a specified date, which shall be made as of such specified date):


 


3.1       Corporate Existence and Qualification of the Seller; Title
to Purchased Assets; Due Execution, Stockholders, Etc.


 


(a)          The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to conduct the business of the Transferred Internet Business through
the Internet Closing Date and to own or lease and to operate the Purchased
Internet Assets as and in the places where such business is conducted and where
the Purchased Internet Assets are owned, leased or operated.


 


(b)         Except as set forth in Section 3.1(b) of the Seller Disclosure
Schedule, the Seller Group owns all of the Purchased Internet Assets free and
clear of all Liens, other than 


 


18





















 


Permitted Liens.  The Seller and each member of the Internet Seller Group is duly qualified
to transact business and is in good standing in jurisdictions where the nature
of the properties owned or leased by it or the activities conducted by it make
such qualifications necessary.


 


(c)          The Seller has
all requisite corporate power and authority to enter into and deliver this
Agreement and perform its obligations under this Agreement and to consummate
the transactions contemplated hereby. 
The execution, delivery and performance of this Agreement by the Seller
and the consummation by the Seller of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of the
Seller and its shareholder.  This
Agreement has been duly executed and delivered by the Seller and, assuming the
due authorization, execution and delivery by the Buyers and Systemax, this
Agreement constitutes the legal, valid and binding obligation of the Seller,
enforceable against the Seller in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally
and subject, as to enforceability, to general principles of equity, including,
without limitation, principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).


 


(d)         Each member of
the Internet Seller Group has all requisite corporate or other power and
authority to enter into and deliver the Internet Transfer Instruments to which
it is a party and perform its obligations thereunder and to consummate the
transactions contemplated thereby.  The
execution, delivery and performance of such Internet Transfer Instruments by
each member of the Internet Seller Group signatory thereto and the consummation
by it of the transactions contemplated thereby have been duly authorized by all
necessary corporate or other action on the part of such Person and its
shareholder.  Each Internet Transfer
Instrument has been duly executed and delivered by the appropriate members of
the Internet Seller Group and, assuming the due authorization, execution and
delivery by the Internet Buyer, such Internet Transfer Instrument constitutes
the legal, valid and binding obligation of the member of the Internet Seller
Group, enforceable against such Person in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally
and subject, as to enforceability, to general principles of equity, including,
without limitation, principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).


 


(e)          The Seller
owns, directly or indirectly, all of the issued and outstanding capital stock
or other equity interests in each member of the Internet Seller Group, in each
case free and clear of any Lien and the Seller has all rights to vote and
transfer such capital stock and equity interests without restriction.


 


3.2       No Violation.  Except as set forth in Section 3.2 of the
Seller Disclosure Schedule, neither the execution and delivery by the Seller of
this Agreement, the execution and delivery of the Internet Transfer
Instruments, nor the consummation by the Seller of the transactions
contemplated hereby: (i) violates or will violate any Applicable Law with
respect to the Internet Seller Group; (ii) violates or will violate any
Order of Governmental Authority applicable to the Internet Seller Group; (iii) conflicts
or will conflict with, or results or will result in a breach of or default
under, the Organizational Documents of any member of the Internet 


 


19





















 


Seller Group; or (iv) requires any consent,
authorization, or approval from, or registration or filing with, any
Governmental Authority (not obtained or made as of the Closing Date), except for
consents that, if not so authorized, approved, registered or filed, would not
have an Internet Business Material Adverse Effect.


 


3.3       Taxes.


 


(a)          Except for certain ongoing state sales Tax audits listed on Section 3.3(a) of
the Seller Disclosure Schedule, no Legal Proceeding or other claim for
assessment or collection of Taxes relating to or otherwise affecting the
Purchased Internet Assets is currently pending or, to the Seller’s Knowledge,
has been asserted against the Internet Seller Group.


 


(b)         All Tax returns required to be filed on or before the Closing Date
relating to the Purchased Internet Assets have been or will be filed on a
timely basis in all jurisdictions in which such Tax returns are required to be
filed (taking into account any extension of time to file granted or to be
obtained on behalf of the Seller Group) and all Taxes shown as due and owing on
each such Tax return have been paid in full. 
All such Tax returns were correct and complete in all material respects.


 


(c)          The Seller Group has not entered into any agreement, whether or not
written, providing for the payment of Taxes or entitlement to refunds and
related matters with any other party relating to or otherwise affecting the
Purchased Internet Assets.  None of the
Purchased Internet Assets has in the past been held, and none of the Purchased
Internet Assets will immediately prior to the Internet Closing Date be held, in
an arrangement for which Tax returns as a partnership have been or may be
filed.


 


(d)         Other than as disclosed on Section 3.3(d) of
the Seller Disclosure Schedule, no claim, deficiency or adjustment has been
asserted or proposed in writing against the Internet Seller Group with respect
to any Tax relating to or otherwise affecting the Purchased Internet Assets.


 


(e)          The Purchased Internet
Assets are free of any Tax Liens.


 


(f)            Each of the Seller and each
member of the Internet Seller Group is a “United States Person” within the
meaning of Section 7701(a)(30) of the Code of the U.S. Internal Revenue
Service.


 


3.4       Compliance With Laws; Office of Foreign Assets Control.  Section 3.4 of the Seller
Disclosure Schedule lists each potential violation of Applicable Law or series
of related potential violations of Applicable Law by the Internet Seller Group
relating to the Purchased Internet Assets as to which the aggregate Liability
of the Internet Seller Group (with respect to each such violation or series of
related violations) could reasonably be expected to exceed $100,000.  The Internet Seller Group (with respect to
the Purchased Internet Assets) is not in violation of any
requirements of Applicable Law relating to money laundering, anti-terrorism,
trade embargoes and economic sanctions, including, without limitation,
Executive Order 13224 (66 Fed. Reg. 49079 (Sept. 23, 2001)).


 


20










 


 












 


3.5       Commitments.  Section 3.5 of the Seller
Disclosure Schedule lists (i) any Contract by the Seller or the Internet
Seller Group granting to any person a first-refusal, first-offer or
other right to purchase or acquire or assume, directly or indirectly, the
Transferred Internet Business or any of the Purchased Internet Assets, (ii) any
Assigned Material Commitment under which any party thereto is in default which
default is material to the Purchased Internet Assets or the Transferred
Internet Business and (iii) any Assigned Material Commitment under which a
breach would occur, and any Lien that would be created, due to the execution
and delivery by the Seller of this Agreement or the consummation by the Seller
of the transactions contemplated hereby.


 


3.6       Intellectual
Property.  (a)   Section 3.6(a) of
the Seller Disclosure Schedule sets forth a list of (i) all Intellectual
Property owned by the Seller and the Internet Seller Group and relating to the
Transferred Internet Business  that is
filed or registered with the United States Patent and Trademark Office, the
United States Copyright Office, or the Trademark, Patent or Copyright office
(or other Intellectual Property registration authority) of a state in the
United States, any country or any other jurisdiction; and (ii) all Domain Names owned by the Seller and the Internet Seller
Group and relating to the Transferred
Internet Business; (collectively with any material unregistered Trademarks and
Copyrights owned by the Seller and the Internet Seller Group and relating to the Transferred Internet
Business, the “Seller Owned Intellectual Property”).  The Internet Seller Group does not own any
issued Patents or applications therefor.


 


(b)                                 There are no
material Contracts
pursuant to which any third party is authorized to use any Seller Owned
Intellectual Property, including without limitation licenses of Software and except as otherwise set forth on Section 3.6(b) of the Seller Disclosure
Schedule, there are no material Contracts pursuant to which the Seller
or the Internet Seller Group is licensed to use Intellectual Property owned by
a third party and relating to the
Transferred Internet Business including without limitation licenses of
Software (but not including generally available “off-the-shelf” software) (the “Third Party Licenses”; the
Intellectual Property licensed pursuant to the Third Party Licenses together
with the Seller Owned Intellectual Property, collectively the “Seller Intellectual Property”).  To the Knowledge of the Seller, each of the
Third Party Licenses is valid and enforceable against the Seller and the other
party or parties thereto, in accordance with its terms.  To the Knowledge of the Seller, neither the
Seller nor any member of the Internet Seller Group is in default in the
performance, observance or fulfillment of any material obligation, covenant or
condition contained in any Third Party License.


 


(c)                                  Except as set forth on Section 3.6(c) of the Seller Disclosure
Schedule:


 


(i)                                     Seller and the Internet Seller Group owns
or is otherwise authorized or licensed to use all Seller Intellectual
Property.  The Seller Intellectual
Property is all Intellectual Property necessary for the conduct of the
Transferred Internet Business as presently conducted, and is sufficient in all
material respects for the conduct of such Transferred Internet Business.


 


(ii)                                  To the Knowledge of the Seller, no Person
is infringing upon, misappropriating, or otherwise violating the Seller
Intellectual Property.  To the Knowledge
of the Seller, the use of the Seller Intellectual Property in connection with
the operation of the Transferred Internet Business as presently conducted does
not conflict with, infringe upon or 


 


21

















 


violate any Intellectual Property of any Person.  There are no Legal Proceedings pending, or to
the Knowledge of the Seller threatened, related to the Seller Intellectual
Property.


 


(iii)                               Except as set forth in Section 3.6(c)(iii) of the Seller
Disclosure Schedule, the execution, delivery and performance of this
Agreement and the other Internet Transfer Instruments, and the consummation of
the transaction contemplated hereby and thereby, will not, to Knowledge of the
Seller, constitute a material breach of any Contract involving any Seller
Intellectual Property, nor cause the forfeiture or termination of any Seller
Intellectual Property.


 


(iv)                              The Seller and each member of the
Internet Seller Group takes commercially reasonable efforts to maintain in
confidence, and to ensure the physical and electronic protection of, its
Software, technology, websites, Trade Secrets, Specified Data and other
confidential Intellectual Property and information assets from unauthorized
access, disclosure, use or modification. 
To the Knowledge of the Seller, there has been no unauthorized access,
disclosure, use or modification, or other breach of security involving any
Software, technology, websites, Trade Secrets, Specified Data or other
Confidential Information or information assets relating to the Transferred
Internet Business.  To the Knowledge of
the Seller, all data including Specified Data that has been collected, stored,
maintained or otherwise used by the Internet Seller Group and relating to the
Transferred Internet Business has been collected, stored, maintained and
otherwise used in accordance with Applicable Law.  Neither Seller nor any member of the Internet
Seller Group has received a notice of noncompliance with or other violation of
Applicable Law relating to such data and Specified Data including without limitation
applicable data protection and privacy laws, rules and regulations.  As of the Internet Closing Date, CompUSA
Holdings II Inc. will be the sole owner of the Specified Data.  Other than as set forth in this Section 3.6(c)(iv),
neither Seller nor any member of the Internet Seller Group has sold,
transferred, licensed or otherwise distributed the Specified Data or any other
Seller Intellectual Property to any Person prior to the Internet Closing
Date.  The Specified Data shall include,
but shall not be limited to, customer names, customer mail addresses, customer
email addresses and customer purchase history of customers of the Transferred
Internet Business.  Notwithstanding
anything in this Agreement to the contrary, Specified Data shall not contain
credit card information, social security numbers or driver’s license numbers.


 


3.7       Litigation.  Except with respect to any Legal
Proceedings regarding which the aggregate Liability of the Internet Seller
Group thereunder, after recovery by the Internet Seller Group of all available
insurance proceeds with respect thereto, is reasonably expected to be less than
$100,000, Section 3.7 of the Seller Disclosure Schedule lists (a) all
Orders applicable to, and (b) all Legal Proceedings pending, or to the
Seller’s Knowledge, threatened against, the Internet Seller Group with respect
to the Transferred Internet Business.


 


3.8       Finder’s Fee.  Neither the Seller nor any member of the
Internet Seller Group has incurred or become liable for any broker’s commission
or finder’s fee relating to or in connection with the transactions contemplated
by this Agreement.


 


3.9       No Undisclosed Liabilities.  As of the date hereof and as of the Internet
Closing Date, CompUSA Holdings II Inc. has no liabilities (whether absolute,
accrued, contingent or otherwise), other than (i) liabilities incurred in
connection with this Agreement and 


 


22





















 


the
transactions contemplated hereby, (ii) liabilities set forth in Section 3.9
of the Seller Disclosure Schedule or (iii) the Terminable Liens.


 


ARTICLE 4. REPRESENTATIONS AND
WARRANTIES AND DISCLOSURES OF THE SELLER WITH RESPECT TO THE PURCHASED REAL
ESTATE ASSETS.


 


Except
as set forth herein or in the Seller Disclosure Schedule, the Seller represents
and warrants to the Real Estate Buyer as follows (with each representation and
warranty being made as of the date of this Agreement, other than those made as
of a specified date, which shall be made as of such specified date):


 


4.1       Corporate Existence and Qualification of the Seller; Title
to Purchased Assets; Due Execution, Stockholders, Etc.


 


(a)          The Seller is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has the requisite corporate power and
authority to conduct the business of the Transferred Real Estate Business
through the Internet Closing Date and to own or lease and to operate the
Purchased Real Estate Assets as and in the places where such business is
conducted and where the Purchased Real Estate Assets are owned, leased or
operated.


 


(b)         Except
as set forth in Section 4.1(b) of the Seller Disclosure Schedule, the
Seller Group owns all of the applicable Purchased Real Estate Assets free and
clear of all Liens, other than   The Seller and each applicable
member of the Real Estate Seller Group is duly qualified to transact business
and is in good standing in jurisdictions where the nature of the properties
owned or leased by it or the activities conducted by it make such
qualifications necessary.


 


(c)          The Seller has all requisite corporate power and
authority to enter into and deliver this Agreement and perform its obligations
under this Agreement and to consummate the transactions contemplated
hereby.  The execution, delivery and
performance of this Agreement by the Seller and the consummation by the Seller
of the transactions contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Seller and its shareholder.  This Agreement has been duly executed and
delivered by the Seller and, assuming the due authorization, execution and
delivery by the Buyer and Systemax, this Agreement constitutes the legal, valid
and binding obligation of the Seller, enforceable against the Seller in
accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors’ rights and remedies generally and subject, as to enforceability, to
general principles of equity, including, without limitation, principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).


 


(d)         The Seller
owns, directly or indirectly, all of the issued and outstanding capital stock
or other equity interests in each member of the Real Estate Seller Group, in
each case free and clear of any Lien and the Seller has all rights to vote and
transfer such capital stock and equity interests without restriction.


 


23





















 


4.2       No Violation.  Neither the execution and delivery by the
Seller of this Agreement, the execution and delivery of the applicable Real
Estate Transfer Instruments, nor the consummation by the Seller of the
transactions contemplated hereby: (i) violates or will violate any
Applicable Law with respect to the applicable members of the Real Estate Seller
Group; (ii) violates or will violate any Order of Governmental Authority
applicable to the applicable members of the Real Estate Seller Group; (iii) conflicts
or will conflict with, or results or will result in a breach of or default
under, the Organizational Documents of any applicable member of the Real Estate
Seller Group; or (iv) requires any consent, authorization, or approval
from, or registration or filing with, any Governmental Authority (not obtained
or made as of the Closing Date), except


 


4.3       Taxes.


 


(a)          Except for certain ongoing state sales Tax audits listed on Section 4.3(a) of
the Seller Disclosure Schedule, no Legal Proceeding or other claim for
assessment or collection of Taxes relating to or otherwise affecting the
applicable Purchased Real Estate Assets is currently pending or, to the Seller’s
Knowledge, has been asserted against the applicable members of the Real Estate
Seller Group.


 


(b)         All Tax returns required to be filed on or before the Closing Date
relating to the Purchased Real Estate Assets have been or will be filed on a
timely basis in all jurisdictions in which such Tax returns are required to be
filed (taking into account any extension of time to file granted or to be
obtained on behalf of the Seller Group) and all Taxes shown as due and owing on
each such Tax return have been paid in full. 
All such Tax returns were correct and complete in all material respects.


 


(c)          The applicable members of the Real Estate Seller Group have not entered
into any agreement, whether or not written, providing for the payment of Taxes
or entitlement to refunds and related matters with any other party relating to
or otherwise affecting the Purchased Real Estate Assets.  None of the Purchased Real Estate Assets has
in the past been held, and none of the Purchased Real Estate Assets will
immediately prior to the Internet Closing Date be held, in an arrangement for
which Tax returns as a partnership have been or may be filed.


 


(d)         Other than as disclosed on Section 4.3(d) of
the Seller Disclosure Schedule, no claim, deficiency or adjustment has been
asserted or proposed in writing against any applicable member of the Real
Estate Seller Group with respect to any Tax relating to or otherwise affecting
the Purchased Real Estate Assets.


 


(e)          The Purchased Real Estate
Assets are free of any Tax Liens.


 


4.4       Compliance
With Laws; Office of Foreign Assets Control.  Section 4.4 of the Seller Disclosure
Schedule lists each potential violation of Applicable Law or series of related
potential violations of Applicable Law by any applicable member of the Real
Estate Seller Group relating to the Purchased Real Estate Assets as to which
the aggregate Liability of the applicable members of the Real Estate Seller
Group (with respect to each such violation or series of related violations)
could reasonably be expected to exceed $100,000.  The applicable members of the 


 


24





















 


Real Estate Seller Group (with respect to the Purchased
Real Estate Assets) are not in violation of any requirements of Applicable
Law relating to money laundering, anti-terrorism, trade embargoes and economic
sanctions, including, without limitation, Executive Order 13224 (66 Fed. Reg.
49079 (Sept. 23, 2001)).


 


4.5       Commitments.  Section 4.5 of the Seller
Disclosure Schedule lists (i) any Contract by the Seller or the applicable
members of the Real Estate Seller Group granting to any person a
first-refusal, first-offer or other right to purchase or acquire or assume,
directly or indirectly, the Transferred Real Estate Business or any of the
Purchased Real Estate Assets, (ii) any Assigned Material Commitment under
which any party thereto is in default which default is material to the
Purchased Real Estate Assets or the Transferred Real Estate Business and (iii) any
Assigned Material Commitment under which a breach would occur, and any Lien
that would be created, due to the execution and delivery by the Seller of this
Agreement or the consummation by the Seller of the transactions contemplated
hereby.


 


4.6       Intellectual
Property.  Section 4.6 of the Seller Disclosure
Schedule lists all Intellectual Property owned by the applicable
members of the Real Estate Seller Group and relating to the Transferred Real
Estate Business that is filed or registered with the United States Patent and
Trademark Office, the United States Copyright Office, or the trademark or
copyright office of another country, and certain domain names registered to the
applicable members of the Real Estate Seller Group and used by the Real Estate
Seller Group in connection with the Transferred Real Estate Business.


 


4.7       Litigation.  Except with respect to any Legal
Proceedings regarding which the aggregate Liability of the applicable members
of the Real Estate Seller Group thereunder, after recovery by the applicable
members of the Real Estate Seller Group of all available insurance proceeds
with respect thereto, is reasonably expected to be less than $100,000, Section 4.7
of the Seller Disclosure Schedule lists (a) all Orders applicable to, and (b) all
Legal Proceedings pending, or to the Seller’s Knowledge, threatened against,
the applicable members of the Real Estate Seller Group with respect to the
Transferred Real Estate Business.


 


4.8       Finder’s Fee.  Neither the Seller nor any of the applicable
members of the Real Estate Seller Group has incurred or become liable for any
broker’s commission or finder’s fee relating to or in connection with the
transactions contemplated by this Agreement.


 


4.9       Environmental Matters.  Except as disclosed in Section 4.9 of
the Seller Disclosure Schedule or, in each case, as would not be reasonably
likely to have a Real Estate Business Material Adverse Effect:


 


(a)          To the Knowledge of the
Seller, the applicable members of the Real Estate Seller Group have conducted
the Transferred Businesses in compliance with all Environmental Laws applicable
to such members of the Real Estate Seller Group and, as of the date hereof, the
applicable members of the Real Estate Seller Group are in compliance with all
Environmental Laws applicable to the Transferred Real Estate Business.


 


(b)         To the Knowledge of the
Seller, the applicable members of the Real Estate Seller Group have not
received any written notice from any Governmental Authority or any other 


 


25





















 


Person
of any Liability under, violation or alleged violation of any Environmental Law
applicable to the Transferred Real Estate Business.


 


(c)          The applicable members of
the Real Estate Seller Group have not received any written information request,
and there are no Orders or Legal Proceedings outstanding or pending, or to the
Knowledge of the Seller, threatened, relating to compliance with or any
Liability under any Environmental Law affecting the Transferred Real Estate
Business.


 


(d)         To the Knowledge of the
Seller, there has not been a Release of any Hazardous Material caused by the
applicable members of the Real Estate Seller Group with respect to the
Transferred Real Estate Business.


 


4.10        Leases.


 


(a)          To Seller’s Knowledge, each
of the Leases set forth on Exhibit 2.1(b)(i) (“Leases”) is in
full force and effect, none of the parties thereto is in default of any of its obligations
thereunder, and no event has occurred that, with the giving of notice or
passage of time, or both, would constitute a default thereunder.


 


(b)         Attached hereto as Section 4.10(b) of
the Seller Disclosure Schedules is a true and complete list of all of the
Leases, true and complete copies of which, including all amendments,
supplements and modifications thereto, 
have been delivered to Systemax.


 


(c)          No brokerage commission or
other compensation is payable by Seller or any member of the Real Estate Seller
Group with respect to any Lease.


 


(d)         Neither Seller nor any
member of the Real Estate Seller Group has made any prior assignment of a
Lease, or entered into any sublease, occupancy agreement, license agreement or
other agreement relating to such Lease or premises leased thereby, and the
applicable Real Estate Buyer will have full, unfettered, unencumbered right to
use and occupy the premises leased under such Lease.  Other than the Permitted Liens, no Lease has
been pledged, encumbered, hypothecated or otherwise transferred in any way.


 


ARTICLE 5. COVENANTS OF THE
SELLER.


 


Seller
hereby makes the following covenants and agreements:


 


5.1       Audited
Financial Information.  The
Seller shall cooperate with the Buyers’ or Systemax’s reasonable requests in connection
with the preparation by the applicable Buyer or Systemax of any audited
financial information relating to the Transferred Businesses, including,
without limitation, the preparation, on behalf of a Buyer or Systemax, of a
manually signed accountants’ report from nationally recognized independent
certified public accountants, required to be filed by Systemax with the U.S.
Securities and Exchange Commission.  All
out-of-pocket costs sustained by any Party in connection therewith, including,
without limitation, such costs in connection with auditing of the financial
information of the Transferred Businesses, shall be borne by the Buyers.


 


26





















 


5.2       Retained Liabilities.  As among the Buyers, Systemax and the Seller,
the Seller shall pay and perform any and all of the Retained Liabilities when
and as they become due.


 


5.3       Conduct of the Businesses.  Without limiting the foregoing, between the
date hereof and until the Internet Closing Date or a Real Estate Closing Date,
as applicable, except as required or expressly permitted pursuant to the terms
hereof or as the applicable Buyer shall have consented to in writing in
advance, the Seller shall not, and shall not permit any of member of the Seller
Group to:


 


(a)          enter into, terminate,
amend, modify or waive any term of any material transaction, or any client
contract or any similar contract or arrangement with respect to the Transferred
Internet Business or the Transferred Real Estate Business conducted at any of
the Acquired Premises, as applicable; provided, however, that the Seller Group
shall be permitted to terminate, amend, modify or waive terms consistent with
its plan to wind down its business and otherwise not inconsistent with the
terms of this Agreement;


 


(b)         except as provided for
herein, renew (unless requested in writing by the applicable Buyer or to extend
the term of the lease beyond ten years), terminate, amend, modify or waive any
term of the Leases;


 


(c)          mortgage, pledge or subject
any of the Purchased Internet Assets or the applicable Purchased Real Estate
Assets, or any part thereof, to any Lien or suffer to exist any such Lien,
other than (x) Liens which shall be terminated at or before the respective
Closing Date and (y) Permitted Liens;


 


(d)         perform any “going out of
business sales” with respect to any of the Purchased Real Estate Assets at any
of the Acquired Premises; or


 


(e)          commit to do any of the
foregoing.


 


5.4       Access to Information.  From the date hereof until any Real Estate
Closing, the Seller shall afford to the Real Estate Buyer and its authorized
personnel and representatives reasonable access during normal business hours
(except as restricted by any applicable confidentiality obligations of the
Seller Group) to make such reasonable investigation of the assets, properties,
business and operations of the Seller and the applicable members of the Real
Estate Seller Group to the extent they relate to the applicable Transferred
Real Estate Business or applicable Purchased Real Estate Assets, and such
examination of the relevant books and records of the applicable Transferred
Real Estate Business as the Real Estate Buyer may reasonably request and to
discuss the affairs, finances and accounts of the applicable Transferred Real
Estate Business with the personnel thereof. 
Any such investigation or examination shall be conducted at times
reasonably acceptable to the Seller and upon reasonable prior notice to the
Seller identifying any personnel of the Seller and the applicable members of
the Real Estate Seller Group with whom the Real Estate Buyer desires to discuss
the above referenced matters.  The Seller
may designate any person to be present for any such discussion.  To the extent reasonably practical, from the
date hereof until any Real Estate Closing, the Seller shall promptly inform the
Real Estate Buyer of any and all material matters that arise during such period
affecting the 


 


27





















 


business
and operations of the Seller relating to such Transferred Real Estate Business
or such Transferred Real Estate Assets.


 


5.5       Terminable Liens.  On or prior to the Internet Closing Date, the
Seller shall, or shall cause its Affiliates to, terminate all Terminable Liens
on the Purchased Internet Assets.  On or
prior to any Real Estate Closing Date, the Seller shall terminate all
Terminable Liens on the applicable Purchased Real Estate Assets.


 


5.6       Acquired Lease Consents.  Subject to Section 10.17 hereof, during
the period commencing on the date of this Agreement and ending on any Real
Estate Closing Date, the Seller shall act in good faith to obtain as soon as
reasonably practicable any necessary consents or notices to assign the Acquired
Leases and to the extend the remaining term of such leases, to no less than ten
years from the applicable Closing Date, including any option to renew at
substantially the same rent and conditions.


 


5.7       Satisfaction of Conditions
Precedent.  During the
period commencing on the date of this Agreement and ending on the Internet
Closing Date or any Real Estate Closing Date, the Seller shall act in good
faith to satisfy, or cause to be satisfied all of the conditions precedent to
the Seller’s obligations to consummate the transactions contemplated by the
Internet Closing and the applicable Real Estate Closing, respectively.


 


5.8       Confidential Materials.  The Seller shall use commercially reasonable
efforts to remove all personally identifiable, confidential and similar
information from the Acquired Premises prior to the applicable Real Estate
Closing Date.


 


5.9       Pre-Closing Cooperation.  The Seller shall cooperate in good faith with
the Internet Buyers to provide such data and other information and to take such
other actions as reasonably requested by the Internet Buyers in order for the
Internet Buyers to be able to conduct the Transferred Internet Business as of
the Internet Closing Date.


 


5.10                        Gift cards. As early as
reasonably practicable after the Internet Closing Date, the Seller shall, or
shall cause one or more of its Affiliates to, establish procedures whereby
customers holding gift cards issued by the Seller Group prior to the date
hereof may receive cash payments of amounts on account with respect to such
gift cards and use reasonable commercial efforts to provide such customers with
substantially the same standard of service in connection with such procedures
as is provided to such customers as of the date hereof.  Such procedures shall include, establishing a
toll-free phone number to provide customers with information on how to redeem
such gift cards for cash.  The Seller or
its Affiliate shall provide such toll-free number at no cost to any such
customer or to Real Estate Buyer and shall maintain such number for a period no
less than six (6) months following February 29, 2008.  In the event any such customers for any
reason request redemption of gift cards for cash or merchandise from the Real
Estate Buyer at any of the Acquired Premises, Real Estate Buyer may redeem such
gift cards by paying such customers for the amount on account with respect to
such gift cards or by giving such customers merchandise having a price equal to
such amount (or a combination) and shall be entitled to reimbursement from the
Seller for such reimbursement;  provided
that prior to redeeming such gift cards Real Estate Buyer shall have confirmed
the validity of the gift card and the amounts owed to such customers under such
gift cards by calling the toll-free number. 



 


28





















 


At
the end of each month following the earliest Real Estate Closing until August 2008,
Real Estate Buyer shall send a statement to the Seller setting forth in
reasonable detail the amounts paid or delivered by the Real Estate Buyer to
redeem such gift cards in such month along with the redeemed gift cards.  No later than five (5) Business Days
following Seller’s receipt of such statement, Seller shall deliver to Real
Estate Buyer the amount set forth on such statement in respect of valid gift
cards.  Seller shall not be liable for any
redemptions by the Real Estate Buyer of any gift cards after August 31,
2008.


 


ARTICLE 6. REPRESENTATIONS AND
WARRANTIES OF THE BUYERS.


 


Except
as set forth herein, each of the Buyers represents and warrants to the Seller
as follows (with each representation and warranty being made as of the date of
this Agreement, other than those made as of a specified date, which shall be
made as of such specified date):


 


6.1       Corporate
Existence and Qualification of the Buyers and Systemax; Due Execution,
Stockholders, Etc.


 


(a)          The Trade Name
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of Delaware and has the requisite corporate power and authority
to conduct its business and to own or lease and to operate its properties and
assets as and in the places where such business is conducted and where such
properties and assets are owned, leased or operated.  The Domain Name Buyer is a corporation duly
organized, validly existing and in good standing under the laws of Florida and
has the requisite corporate power and authority to conduct its business and to
own or lease and to operate its properties and assets as and in the places
where such business is conducted and where such properties and assets are
owned, leased or operated.  The Real
Estate Buyer is a corporation duly organized, validly existing and in good
standing under the laws of Delaware and has the requisite corporate power and
authority to conduct its business and to own or lease and to operate its
properties and assets as and in the places where such business is conducted and
where such properties and assets are owned, leased or operated.  Systemax is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has the requisite corporate power and authority to conduct its business and
to own or lease and to operate its properties and assets as and in the places
where such business is conducted and where such properties and assets are
owned, leased or operated.


 


(b)         Each
Buyer is duly qualified to transact business and is in good standing in
jurisdictions where the nature of the properties owned or leased by it or the
activities conducted by it make such qualifications necessary.


 


(c)          Each of the
Buyers and Systemax has all requisite corporate power and authority to enter
into and deliver this Agreement and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby.  The execution, delivery and performance of
this Agreement by the Buyers and Systemax and the consummation by the Buyers
and Systemax of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of each of the Buyers and
Systemax.  This Agreement has been duly
executed and delivered by each of the Buyers and Systemax and, assuming the due
authorization, execution and delivery by the Seller, this Agreement constitutes
the legal, valid 


 


29





















 


and binding obligation of each of the Buyers and Systemax, enforceable
against each of the Buyers and Systemax in accordance with its terms, subject
to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally
and subject, as to enforceability, to general principles of equity, including,
without limitation, principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity).


 


(d)         Systemax owns,
beneficially and of record, all of the outstanding shares of capital stock of
each of the Buyers and there are no outstanding equity securities of or other
equity interests in any Buyer (other than the shares of capital stock owned by
Systemax) and there are no outstanding rights, warrants or options to acquire
securities of or other equity interests in any Buyer, and no Buyer is subject
to any obligation to issue, deliver, redeem, or otherwise acquire or retire any
shares of capital stock or other equity interests.


 


6.2       No
Violation.  Neither the execution and delivery by the
Buyers and Systemax of this Agreement or the Transfer Instruments, nor the
consummation by the Buyers and Systemax of the transactions contemplated hereby:
(i) violates or will violate any Applicable Law with respect to any Buyer
or Systemax; (ii) violates or will violate any Order of Governmental
Authority applicable to any Buyer or Systemax; (iii) conflicts or will
conflict with, or results or will result in a breach of or default under, the
Organizational Documents of any Buyer or Systemax; or (iv) requires any
consent, authorization, or approval from, or registration or filing with, any
Governmental Authority (not obtained or made as of the Closing Date), except


 


6.3       Finder’s Fee.  No Buyer or Systemax has incurred or become
liable for any broker’s commission or finder’s fee relating to or in connection
with the transactions contemplated by this Agreement.


 


ARTICLE 7. COVENANTS OF THE
BUYERS AND SYSTEMAX.


 


Each
Buyer and Systemax hereby makes, jointly and severally, the following covenants
and agreements:


 


7.1       Post-Closing Cooperation.  Each Buyer and Systemax agrees to provide (at
the out-of-pocket expense of the Seller Group) to the Seller Group such information
as they may reasonably request (i) in connection with accounting and Tax
matters relating to the conduct of the Transferred Businesses prior to the
applicable Closing Dates, and (ii) relating to the Retained Businesses
which remains stored after the applicable Closing Dates in the computer systems
purchased by the Buyer pursuant to this Agreement.


 


7.2       Satisfaction of Conditions
Precedent.  During the
period commencing on the date of this Agreement and ending on the Internet
Closing Date and any Real Estate Closing Date, the Internet Buyers and the Real
Estate Buyer, respectively, shall act in good faith to satisfy, or cause to be
satisfied all the conditions precedent to the Internet Buyers’ and Real Estate
Buyer’s obligations to consummate the transactions contemplated by the Internet
Closing and the Real Estate Closing, as applicable.


 


30










 












 


7.3  Consents.  During the period commencing on the date of
this Agreement and ending on any Real Estate Closing Date, the Real Estate
Buyer and Systemax shall cooperate in good faith with the Seller to obtain any
necessary consents to assign the applicable Acquired Leases.


 


7.4  Confidential
Materials.  The Real
Estate Buyer shall promptly return to the Seller or destroy any personally
identifiable, confidential and similar information that is discovered by any
Person at the Acquired Premises, and which relates to the conduct of the
business prior to the applicable Real Estate Closing Date.


 


7.5  Employees;
Management.  The Real
Estate Seller Group shall reasonably assist the Real Estate Buyer in its
efforts to review and offer employment to the employees of the Real Estate
Seller Group following a Real Estate Closing including, but not limited to,
sharing employee data with respect to such employees that the Real Estate
Seller Group is permitted to disclose to the Real Estate Buyer under Applicable
Law; provided, however, that the Real Estate Seller Group shall
not be obligated to share employee data that it is not permitted to share under
Applicable Law with respect to any employee who has not consented to the
sharing of such information.  Following a
Real Estate Closing, the Real Estate Buyer shall notify the Real Estate Seller
Group of which employees it has determined to offer continued employment.


 


7.6  Domain Name.  The Internet Buyers shall not and shall not
permit any of their Affiliates to use the domain names “compusadialatech.com”, “compusadial-a-tech.com,”
“compusatechpro.com,” “compusadial-a-tech.com,” “compusadialatech.com”, or URLs
containing the names “dial-a-tech” or “dialatech” alone or in combination with
the CompUSA name other than to direct the web traffic to such domain names or
universal resource locators (URLs) to “compusa.com”.


 


ARTICLE 8. CONDITIONS.


 


8.1       Conditions to Obligations of
the Parties.  The
respective obligations of the Parties to consummate and cause the consummation
of the transactions contemplated by the Internet Closing and any Real Estate
Closing are subject to the fulfillment, prior to or at the applicable Closing,
of the following conditions precedent:


 


(a)          No Governmental Authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any Applicable Law which is in effect on a Closing Date which has or
would have the effect of prohibiting, enjoining or restraining the consummation
of the transactions contemplated by this Agreement to occur on such Closing
Date or otherwise making such transactions illegal; and


 


(b)         All licenses, certificates,
permits, approvals, clearances, expirations, waivers or terminations of
applicable waiting periods, authorizations, qualifications and orders of any Governmental
Authorities listed in Schedule 8.1(b) (if any) shall have been
obtained and shall be in full force and effect, except as would not,
individually or in the aggregate, be reasonably likely to result in a Business
Material Adverse Effect, a Seller Material Adverse Effect or a Buyer Material
Adverse Effect.


 


31





















 


The
foregoing conditions are for the benefit of each of the Parties and any such
condition may be waived, in whole or in part, by any Party at or prior to the
Closing, and such Party shall have the right to proceed with the transactions
contemplated hereby without waiving any other of its respective rights
hereunder.


 


8.2       Conditions to Obligations of
the Buyers and Systemax.  The
obligation of each of the Buyers and Systemax to consummate and cause the
consummation of the transactions contemplated by the Internet Closing and any
Real Estate Closing are subject to the fulfillment, prior to or at the
applicable Closing, of the following conditions precedent:


 


(a)          the Seller shall have
performed, and complied with, in all material respects the covenants and
obligations required to be performed by the Seller under this Agreement with
respect to the Transferred Internet Business and the Purchased Internet Assets
or the Transferred Real Estate Business and the Purchased Real Estate Assets,
as applicable, on or prior to the Internet Closing Date or a Real Estate
Closing Date, as the case may be;


 


(b)         the representations and
warranties of the Seller contained in Article 3 and Article 4 hereof
which are qualified by materiality or a material adverse effect shall be true
on and as of the date hereof, except for any representations and warranties
that are made as of a specified date, which shall be true on and as of such
date.  All other representations and
warranties of the Seller contained in Article 3 and Article 4 hereof
shall be true in all material respects on and as of the date hereof, except for
any representations and warranties that are made as of a specified date, which
shall be true on and as of such date;


 


(c)          the Seller Group shall have
executed and delivered to the applicable Buyer all applicable Transfer
Instruments;


 


(d)         Gordon Brothers Group, LLC,
a Delaware limited liability company, shall have executed and delivered to the
Domain Name Buyer the letter agreement in the form attached hereto as Exhibit 8.2(d) related
to the covenant set forth in Section 5.10 hereto;


 


(e)          the Seller Group shall have
received, in form and substance reasonably satisfactory to the applicable
Buyer, all Assignment Consents required to be obtained in connection with the
transactions contemplated by such Internet Closing or Real Estate Closing, as
the case may be, except where the failure to obtain any such Assignment
Consents would not, individually or in the aggregate, be reasonably likely to
result in an Internet Business Material Adverse Effect or a Real Estate
Business Material Adverse Effect, as applicable;


 


(f)            in connection with any Real
Estate Closing, the Seller shall have delivered to the Real Estate Buyer the
applicable Closing Notice; and


 


(g)         termination letters in the
form attached hereto as Exhibit 8.2(g) with respect to the
termination of all Terminable Liens on the Purchased Internet Assets or the Purchased
Real Estate Assets, as applicable, shall have been duly executed by the
lienholder and delivered to the applicable Buyer.


 


32





















 


The foregoing conditions are for the exclusive
benefit of each of the Buyers and Systemax and any such condition may be
waived, in whole or in part, by the Buyers and Systemax at or prior to the
Closing, and the Buyers and Systemax shall have the right to proceed with the
transactions contemplated hereby without waiving any of their other rights
hereunder.


 


8.3       Conditions to Obligations of
the Seller.  The
obligation of Seller to consummate and cause the consummation of the
transactions contemplated by the Internet Closing and any Real Estate Closing
are subject to the fulfillment, prior to or at the applicable Closing, of the
following conditions precedent:


 


(a)                                  each Buyer and
Systemax shall have performed, and complied with, in all material respects the
covenants and obligations required to be performed by such Buyer or Systemax
under this Agreement with respect to the Transferred Internet Business and the
Purchased Internet Assets or the Transferred Real Estate Business and the
Purchased Real Estate Assets, as applicable, on or prior to the Internet
Closing Date or a Real Estate Closing Date, as the case may be;


 


(b)         the representations and
warranties of the Buyers contained in Article 6 hereof which are qualified
by materiality or a material adverse effect shall be true on and as of the date
hereof, except for any representations and warranties that are made as of a
specified date, which shall be true on and as of such date.  All other representations and warranties of
the Buyers contained in Article 6 hereof shall be true in all material
respects on and as of the date hereof, except for any representations and
warranties that are made as of a specified date, which shall be true on and as
of such date;


 


(c)          the applicable Buyer shall
have executed and delivered to the Seller all applicable Transfer Instruments;


 


(d)         the Trade Name Buyer shall
have delivered or caused to be delivered the Trade Name Purchase Price, the
Domain Name Buyer shall have delivered or caused to be delivered the Domain
Name Purchase Price or the Real Estate Buyer shall have delivered or caused to
be delivered the applicable Real Estate Purchase Price, as the case may be; and


 


(e)          Systemax shall have executed
and delivered to the Seller the letter agreement substantially in the form
attached hereto as Exhibit 8.3(e).


 


The foregoing conditions are for the exclusive
benefit of the Seller and any such condition may be waived, in whole or in
part, by the Seller at or prior to the applicable Closing, and the Seller shall
have the right to proceed with the transactions contemplated hereby without
waiving any of its other rights hereunder.


 


ARTICLE 9. INDEMNIFICATION.


 


9.1       Survival of
Warranties.


 


(a)          Subject to Section 9.1(b) below,
(i) the representations and warranties of the Seller in Article 3 and
Article 4 of this Agreement shall survive the Internet Closing Date and
the applicable Real Estate Closing Date, respectively, for one year and (ii) the
representations and


 


33





















 


warranties
of the Internet Buyers and the Real Estate Buyer in Article 6 hereof shall
survive the Internet Closing Date and the applicable Real Estate Closing Date,
respectively, for one year. 
Notwithstanding the foregoing, if prior to the end of such period, a
specific state of facts shall have become known which may constitute or give
rise to a claim for which indemnity may be payable pursuant hereto, and the
indemnified party shall have given written notice of such facts to the
indemnifying party prior to such date of expiration, then the right to
indemnification with respect thereto shall remain in effect until such matter
shall have been finally determined and disposed of, and any indemnification due
in respect thereof shall have been paid.


 


(b)         The right to indemnification
hereunder by a Buyer Indemnified Party relating to any breach of Sections 3.1
and 4.1 (Corporate Existence and
Qualification of the Seller; Title to Purchased Assets; Due Execution,
Stockholders, Etc.) or 3.3 and 4.3 (Taxes) shall expire on the date
which is ninety (90) calendar days after the expiration of the applicable
statutes of limitations relating to such breach.  The right to indemnification hereunder by a
Seller Indemnified Party relating to any breach of Section 6.1 (Corporate Existence and Qualification of the
Buyer and Systemax; Due Execution, Stockholders, Etc.) shall expire on
the date which is ninety (90) calendar days after the expiration of the
applicable statutes of limitations relating to such breach.  The right to indemnification hereunder by a
Seller Indemnified Party with respect to the matters set forth in Section 9.3(e) shall
expire on the date which is ninety (90) calendar days after the expiration of
the applicable statutes of limitations relating to such matters.


 


9.2       Indemnification by the
Seller.  The Seller agrees to indemnify
and hold the Buyer Indemnified Parties harmless from and against any Losses
which may be sustained or suffered by any of them arising out of or based upon
any of the following matters (the “Buyer Losses”):


 


(a)          any breach of any
representation or warranty made by the Seller in Sections 3.1 through 3.4, 4.1
through 4.4, 4.9 and 4.10 of this Agreement;


 


(b)         any breach of any
representation or warranty made by the Seller in Sections 3.5 through 3.8 and
4.5 through 4.8 of this Agreement;


 


(c)          any fraud or any knowing and
deliberate breach (any such breach to be proven by clear and convincing
evidence) by the Seller with respect to any of their representations or
warranties in this Agreement or in any certificate or schedule delivered by the
Seller pursuant hereto;


 


(d)         any breach by the Seller of
any agreement or covenant set forth in this Agreement other than as set forth
in Sections 5.2 and 5.10 hereof;


 


(e)          any failure by the Seller to
perform the covenants set forth in Sections 5.2 and 5.10 hereof;


 


(f)            any breach of any
representation or warranty made by the Seller in Section 3.9 of this
Agreement


 


34





















 


(g)         any use of retained
Specified Data by the Seller in violation of the restrictions set forth in Section 2.8(e).


 


9.3       Indemnification by the
Buyers and Systemax.  Each of the
Buyers and Systemax jointly and severally agree to indemnify and hold the
Seller Indemnified Parties harmless from and against any Losses which may be
sustained or suffered by any of them arising out of or based upon any of the
following matters (the “Seller Losses”):


 


(a)          any breach of any
representation or warranty made by a Buyer or Systemax in Article 6 of
this Agreement;


 


(b)         any fraud or any knowing and
deliberate breach (any such breach to be proven by clear and convincing
evidence) by a Buyer or Systemax with respect to any of their representations
or warranties in this Agreement or in any certificate or schedule delivered by
a Buyer or Systemax pursuant hereto;


 


(c)          any breach by a Buyer or
Systemax of any agreement or covenant set forth in this Agreement;


 


(d)         any failure by a Buyer or
Systemax to perform and discharge any Assumed Liabilities as set forth in this
Agreement; and


 


(e)          the sale, transfer or
assignment to any Buyer of, or any Buyer’s or any of its affiliates’ acceptance
of, access to or use of, Specified Data; notwithstanding anything to the
contrary in this Agreement, the Seller is not obligated to indemnify or hold
any Buyer Indemnified Party harmless from and against any Losses which may be
sustained or suffered by any Buyer Indemnified Party arising out of or based
upon the sale, transfer or assignment to any Buyer of, or any Buyer’sor any of
its affiliates’ acceptance of, access to or use of, Specified Data.


 


9.4       Limits on
Indemnification.  Notwithstanding
anything contained herein to the contrary,


 


(a)   (i)  (A) the
Seller shall not have any liability under Sections 9.2(a), 9.2(d) or 9.2(g) until
the amount of indemnifiable Buyer Losses under such Sections, in the aggregate,
exceeds Five Hundred Thousand dollars ($500,000) (the “Threshold”), at
which time the total amount of such Buyer Losses shall be recoverable hereunder
and (B) the Seller shall not have any liability under Section 9.2(b) until
the amount of indemnifiable Buyer Losses thereunder, in the aggregate, exceeds
Two Million dollars ($2,000,000), and (ii) no Buyer or Systemax shall have
any liability under Sections 9.3(a) or 9.3(c) of this Agreement until
the amount of indemnifiable Seller Losses thereunder, in the aggregate, exceeds
the Threshold, at which time the total amount of such Seller Losses shall be
recoverable hereunder;


 


(b)         the aggregate obligations of
the Buyers and Systemax to indemnify, defend and hold the Seller Indemnified
Parties harmless for indemnification claims made pursuant to Section 9.3(e) after
the second anniversary of the Internet Closing Date shall be limited to Ten
Million dollars ($10,000,000) (the “Indemnity Cap Amount”); provided,
that the Indemnity Cap


 


35





















 


Amount
shall not apply unless, on or before the second (2nd) anniversary of
the Internet Closing Date, Systemax and each of the Buyers have, and have
caused their Affiliates to, store the Specified Data in, or otherwise transfer
the Specified Data to, a Data Escrow and permanently erase, purge and otherwise
destroy all other copies of the Specified Data, other than such data relating
to any individual who has accepted the provisions of any privacy policy or
other contract that contains terms governing the collection, receipt, use,
disclosure and transfer of such data and that is effective after the Internet
Closing Date (whether by purchasing a product from the Internet Buyers or
otherwise).


 


(c)          any indemnification payments
required to be made pursuant to this Agreement shall be reduced by any
insurance proceeds actually received by the indemnified party with respect to
the item giving rise to the indemnification payment.  Upon the making of the full amount of the applicable
indemnification payment to the indemnified party, the indemnifying party shall
be subrogated to the rights of the indemnified party, up to the amount of such
indemnification payment, to claim any insurance proceeds not yet recovered by
the indemnified party with respect to the item which gave rise to the
indemnification payment; and


 


(d)         in the event that any Buyer
Indemnified Party has the right to indemnity with respect to any Buyer Losses
under Section 9.2, the Seller shall have no liability to indemnify any
Buyer Indemnified Party more than once with respect to any such Buyer Losses
nor shall the Seller have any liability to indemnify more than one Buyer
Indemnified Party for the same Buyer Losses.


 


9.5       Notice; Defense of Claims.  An indemnified party may make claims for
indemnification hereunder by giving written notice thereof to the indemnifying
party within the period in which indemnification claims can be made
hereunder.  If indemnification is sought
for a claim or liability asserted by a third party, the indemnified party shall
also give written notice thereof to the indemnifying party promptly after it
receives notice of the claim or liability being asserted, but the failure to do
so shall not relieve the indemnifying party from any liability except to the
extent that it is materially prejudiced by the failure or delay in giving such
notice.  Such notice shall summarize the
bases for the claim for indemnification and any claim or liability being
asserted by a third party.  Within thirty
(30) days after receiving such notice the indemnifying party shall give written
notice to the indemnified party stating whether it disputes the claim for
indemnification and whether it will defend against any third party claim or
liability at its own cost and expense. 
If the indemnifying party fails to give notice that it disputes an
indemnification claim within thirty (30) days after receipt of notice thereof,
it shall be deemed to have accepted and agreed to the claim, which shall become
immediately due and payable.  The
indemnifying party (provided such indemnifying party acknowledges its
obligation to indemnify if adversely determined) shall be entitled to direct
the defense against a third party claim or liability with counsel selected by
it as long as the indemnifying party is conducting a good faith and diligent
defense.  If the named parties to the
action or proceeding include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be inappropriate
under applicable standards of professional conduct, the indemnified party may
engage separate counsel at the expense of the indemnifying party.  The indemnifying party shall have the right
to compromise or settle any such dispute if such settlement includes an
unconditional release of all claims against the indemnified party.  If such settlement does not include an
unconditional release of all claims against the indemnified party,


 


36





















 


the
settlement shall be subject to the prior written consent of the indemnified
party (which consent shall not be unreasonably withheld, delayed or
conditioned).  If no such notice of
intent to dispute and defend a third party claim or liability is given by the
indemnifying party, or if such good faith and diligent defense is not being or
ceases to be conducted by the indemnifying party, the indemnified party shall
have the right, at the expense of the indemnifying party, to undertake the
defense of such claim or liability (with counsel selected by the indemnified party),
and to compromise or settle it, exercising reasonable business judgment.  If the third party claim or liability is one
that by its nature cannot be defended solely by the indemnifying party, then
the indemnified party shall make available such information and assistance as
the indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense, at the expense of the indemnifying party.


 


9.6       Exclusive Remedy.  After the Internet Closing Date, the
indemnification provisions set forth in this Article 9 shall constitute
the exclusive remedies of the parties with respect to any breach of the
representations, warranties, agreements, covenants and obligations set forth
herein or in any certificate or schedule delivered by any party pursuant hereto
(other than injunctive or other equitable relief), and with respect to any and
all claims arising from or relating to any of the foregoing; provided, however,
that nothing in this Section 9.6 shall limit in any way any claims brought
by any party based on fraud or knowing and deliberate breach (any such breach
to be proven by clear and convincing evidence).


 


9.7       Indemnification by the Prior
Owners.  The Seller agrees to promptly
pay, or cause to be paid, to the applicable Buyer by wire transfer of
immediately available funds, to such account or accounts designated in writing
by Systemax to the Seller, any amounts received by Specialty Equity, LLC, a
Delaware limited liability company (“Specialty Equity”) or any of its
Affiliates, pursuant to the Stock Purchase Agreement, dated December 7,
2007, among Specialty Equity, and the former stockholders of CompUSA Inc. (the “Stock
Purchase Agreement”), solely to the extent that such amounts were recovered
by the Seller under Article VIII (Indemnification) of the Stock Purchase
Agreement and such amounts were paid in respect of claims with respect to the
Purchased Internet Assets or the applicable Purchased Real Estate Assets.  The Seller shall cooperate in good faith with
the Buyers and Systemax to cause to be made any claim for indemnification under
the Stock Purchase Agreement which relates to the Purchased Internet Assets or
the Purchased Real Estate Assets.  Any
allocation of amounts received pursuant to the Stock Purchase Agreement between
the Transferred Businesses and the Retained Businesses shall be made by the
Seller in good faith.


 


ARTICLE 10. MISCELLANEOUS.


 


10.1                        Confidentiality.


 


(a)          Terms of the Agreement.  The terms of this Agreement shall be
considered Confidential Information of all Parties; provided, that,
notwithstanding anything herein to the contrary, any Party may disclose the
terms of this Agreement and file a copy of this Agreement with appropriate
regulatory authorities to the extent necessary to comply with any obligation it
may have under any Applicable Law.


 


37






 












 


 


(b)         Seller Obligations.  Following the Internet Closing Date, the
Seller shall not disclose to any third party any Buyer Confidential
Information, and shall exercise commercially reasonable efforts (at the expense
of the Buyers) to enforce, and cause any of its existing or future Affiliates
to enforce, any agreements with their respective employees or consultants
relating to confidentiality and assignment of inventions (such agreements, “Proprietary
Rights Agreements”) with respect to Buyer Confidential Information.


 


(c)          Buyer and Systemax
Obligations. Following the Internet Closing Date, no Buyer or
Systemax shall disclose to any third party any Seller Confidential Information,
and each of the Buyers and Systemax shall exercise commercially reasonable efforts
(at the expense of the Seller) to enforce, and cause any their existing or
future Affiliates to enforce, any Proprietary Rights Agreements with their
respective employees or consultants with respect to Seller Confidential
Information.


 


(d)         Permitted Disclosure.  Notwithstanding the foregoing, the Seller may
disclose Buyer Confidential Information, and a Buyer or Systemax may disclose
Seller Confidential Information in a Legal Proceeding or to a government or
other regulatory agency (including, without limitation, any securities
regulatory agency or stock exchange) to the extent necessary to comply with any
Applicable Law; provided that such party provides to the owner of such
Confidential Information prior notice of the intended disclosure and shall permit
the owner of such Confidential Information to intervene therein to protect its
interests in its Confidential Information, and provide full cooperation and
assistance to such owner in seeking to obtain such protection.


 


10.2                        Bulk Sales Law.  Each of the Buyers hereby waives compliance
by the Seller with the provisions of any applicable bulk sales law in
connection with the transfer of the Purchased Assets under this Agreement.


 


10.3                        Fees and
Expenses.


 


(a)          Each of the Parties will
bear its own fees and expenses in connection with the negotiation and the
consummation of the transactions contemplated by this Agreement, including,
without limitation, legal, accounting, finders/brokers or other professional
fees and expenses.


 


(b)         The Internet Buyers and the applicable
Real Estate Buyer will pay all Taxes or expenses (including, without
limitation, reasonable attorneys’ fees) incurred subsequent to the Internet
Closing and a Real Estate Closing, in connection with the transfer of the
Purchased Internet Assets and the applicable Purchased Real Estate Assets,
respectively, to the applicable Buyer as contemplated by this Agreement,
including, without limitation, all sales, use, excise, and other transfer taxes
and similar charges applicable to such transfer, and all expenses applicable to
the recordation of any instruments of transfer (including, without limitation,
expenses in connection with the recordation of any Intellectual Property
Assignment Agreements); notwithstanding the foregoing, the Internet Buyer and the
applicable Real Estate Buyer shall not be obligated to pay Taxes accrued as of
the Internet Closing Date and the applicable Real Estate Closing Date,
respectively, which are Retained Liabilities, including 


 


38





















 


without
limitation any sales tax payable as a result of any failure to comply with
sales tax or bulk sales transfer tax.


 


10.4                        Governing Law.  This Agreement shall be construed under and
governed by the laws of the State of New York.


 


10.5                        Notices.  Any notice, request, demand or other
communication required or permitted hereunder shall be in writing and shall be
deemed to have been given (i) if delivered personally or sent by facsimile
transmission (receipt acknowledged), upon delivery, (ii) if sent by a
nationally recognized overnight courier, properly addressed with postage
prepaid, on the next business day, or (iii) if sent by registered or
certified mail, upon the sooner of the date on which receipt is acknowledged or
the expiration of three (3) days after deposit in United States post
office facilities properly addressed with postage prepaid.  All notices to a party will be sent to the
addresses set forth below or to such other address or person as such party may
designate by notice to each other party hereunder:


 


	
  TO A BUYER

  	
   

  	
   

  
	
  OR SYSTEMAX:

  	
   

  	
  Systemax Inc.

  
	
   

  	
   

  	
  11 Harbor Park Drive

  
	
   

  	
   

  	
  Port Washington, NY 11050

  
	
   

  	
   

  	
  Attention: Richard Leeds,
  Chairman and CEO

  
	
   

  	
   

  	
  Facsimile: (516) 608-3501

  
	
   

  	
   

  	
   

  
	
  With a copy to:

  	
   

  	
  Systemax Inc.

  
	
   

  	
   

  	
  11 Harbor Park Drive

  
	
   

  	
   

  	
  Port Washington, NY 11050

  
	
   

  	
   

  	
  Attention:
  Curt Rush, General Counsel

  
	
   

  	
   

  	
  Facsimile:
  (516) 625-0038

  
	
   

  	
   

  	
   

  
	
  TO
  THE SELLER:

  	
   

  	
  CompUSA
  Inc.

  
	
   

  	
   

  	
  c/o
  Gordon Brothers Group, LLC

  
	
   

  	
   

  	
  101 Huntington Avenue, 10th
  Floor

  
	
   

  	
   

  	
  Boston,
  MA 02199

  
	
   

  	
   

  	
  Attn:
  Billy Weinstein

  
	
   

  	
   

  	
  Facsimile:
  (617) 422-6211

  
	
   

  	
   

  	
   

  
	
  With
  a copy to:

  	
   

  	
  Curtis,
  Mallet-Prevost, Colt & Mosle LLP

  
	
   

  	
   

  	
  101
  Park Avenue

  
	
   

  	
   

  	
  New
  York, New York 10178

  
	
   

  	
   

  	
  Attn:
  Steven J. Reisman, Esq.

  
	
   

  	
   

  	
  Facsimile:
  (212) 697-1559

  



 


Any
notice given hereunder may be given on behalf of any Party by its counsel or
other authorized representatives.


 


10.6        Entire
Agreement.  This
Agreement, together with the Seller Disclosure Schedule, the Transfer
Instruments and the other Schedules and Exhibits referred to herein and 


 


39





















 


the
other documents specifically identified herein or contemplated hereby
(collectively, the “Operative Agreements”), reflects the entire
agreement of the Parties with respect to its subject matter, and supersedes all
previous written or oral negotiations, commitments and writings relating
thereto.  No promises, representations,
understandings, warranties and agreements have been made by any of the Parties
hereto except as referred to herein or in such Schedules and Exhibits or in such
other documents; and all inducements to the making of this Agreement relied
upon by the Parties have been expressed herein or in such Schedules or Exhibits
or in such other documents.


 


10.7                        Assignability;
Binding Effect.  Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement may be assigned or delegated, in whole or in part, by operation of
law or otherwise, by any of the Parties without the prior written consent of
the other Parties (such consent not to be unreasonably withheld) and any such
assignment without such prior written consent shall be null and void.  Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the Parties and their respective successors and permitted assigns.  Notwithstanding the foregoing, a Buyer may
assign this Agreement to an Affiliate thereof so long as such assignment does
not result in any Liability or any material detriment to the Seller (it being
understood that any assignment which results in such Liability or material
detriment shall be null and void).


 


10.8                        Severability.  Any provision of this Agreement that is
deemed invalid, illegal or unenforceable in any jurisdiction shall, as to that
jurisdiction and subject to this Section 10.8, be ineffective to the
extent of such invalidity, illegality or unenforceability, without affecting in
any way the remaining provisions hereof in such jurisdiction or rendering that
or any other provisions of this Agreement invalid, illegal or unenforceable in
any other jurisdiction.  If any covenant
should be deemed invalid, illegal or unenforceable because its scope is
considered excessive, either in time or in geographical range, such covenant
shall be modified so that the scope of the covenant is reduced only to the
minimum extent necessary to render the modified covenant valid, legal and
enforceable.


 


10.9                        Execution in
Counterparts; Facsimile Signatures.  This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same document. 
All signatures of the Parties to this Agreement may be transmitted by
facsimile, and such facsimile will, for all purposes, be deemed to be the
original signature of such Party whose signature it reproduces and will be
binding upon such party.


 


10.10                 Amendments;
Waiver.  This Agreement may not be
amended or modified, nor may compliance with any condition or covenant set
forth herein be waived, except by a writing duly and validly executed by each
Party, or in the case of a waiver, the Party waiving compliance.  No delay on the part of any Party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of any Party of any such right, power
or privilege, or any single or partial exercise of any such right, power or
privilege, preclude any further exercise thereof or the exercise of any other
such right, power or privilege.


 


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10.11                 Publicity and
Disclosures.  Except as
may be required by Applicable law, no press releases or public disclosure,
either written or oral, of the transactions contemplated by this Agreement,
shall be made by a Party without the prior knowledge and written consent of the
Buyer and the Seller, which consent shall not be unreasonably withheld.


 


10.12                 Submission to
Jurisdiction.  Each of the
Parties hereby agrees that any action or proceeding arising out of this
Agreement or the transactions contemplated hereby shall be brought in the
federal or state courts sitting in the County of New York, in the City of New
York, New York, and each of the Parties hereby consents to submit itself to the
personal jurisdiction of such courts in any such action or proceeding, and
hereby waives any defense of inconvenient forum to the maintenance of any
action or proceeding so brought and waives any bond, surety or other security
that might be required of any other party with respect thereto.


 


10.13                 Service of
Process.  Any party hereto may make
service on another party by sending or delivering a copy of the process to the
party to be served in the manner provided for the giving of notices in Section 10.5,
provided, that this Section 10.13 shall not affect the right of any
party to serve legal process in any other manner permitted by law.


 


10.14                 Waiver of Jury
Trial.  EACH PARTY HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


10.15                 Relationship of
the Parties.  Nothing in
this Agreement shall be construed to place any of the Parties in an agency,
employment, franchise, joint venture, or partnership relationship.  The Seller will not have the authority to
obligate or bind a Buyer or Systemax and neither Systemax nor any Buyer will
have the authority to obligate or bind the Seller in any manner, and nothing
herein contained shall, or is intended to, give rise to any rights of any kind
to any third parties; no Party will represent to the contrary, either
expressly, implicitly or otherwise.


 


10.16                 Systemax
Guarantee.


 


(a)          For good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Systemax hereby guarantees to the Seller and its successors and assigns the
prompt payment in full, and performance when due (whether at stated maturity,
by acceleration or otherwise) of all amounts due and owing from time to time,
or performance required, by each of the Buyers for the benefit of the Seller
under the Operative Agreements, in each case strictly in accordance with the
terms hereof and thereof (such obligations being herein collectively called the
“Buyer Guaranteed Obligations”). 
Systemax hereby further agrees that if a Buyer shall fail to pay in
full, or perform when due (whether at stated maturity, by acceleration or
otherwise) any of the Buyer Guaranteed Obligations, Systemax will promptly pay
or perform the same, without any demand or notice of any kind whatsoever, and
that in the case of any extension of time of payment or performance or renewal
of any of the Buyer Guaranteed Obligations, the same will be promptly paid in
full or performed when due (whether at extended maturity, by acceleration or
otherwise) in accordance with the terms of such extension or renewal.  This is a guarantee of payment and
performance and not merely of collection.


 


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(b)         The obligations of Systemax
hereunder are absolute and unconditional irrespective of  the value, genuineness, validity, regularity
or enforceability of the obligations of a Buyer under the Operative Agreements,
or any substitution, release or exchange of any other guarantee of or security
for any of the Buyer Guaranteed Obligations and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
that might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor, it being the intent of this Section 10.16 that the
obligations of Systemax hereunder shall be absolute and unconditional under any
and all circumstances.  Without limiting
the generality of the foregoing in any respect, it is understood and agreed
that the occurrence of any one or more of the following shall not alter or
impair the liability of Systemax hereunder, which shall remain absolute and
unconditional as described above:


 


(i)                                     at any time or
from time to time, without notice to Systemax, the time for any performance of
or compliance with any of the Buyer Guaranteed Obligations shall be extended,
or such performance or compliance shall be waived;


 


(ii)                                  any change in
the corporate existence, structure or ownership of a Buyer, or a Buyer becomes
the subject of a Legal Proceeding under any Bankruptcy Law;


 


(iii)                               the maturity of
any of the Buyer Guaranteed Obligations shall be accelerated, or any of the
Buyer Guaranteed Obligations shall be modified, supplemented or amended in any
respect, or any right under this Agreement or any other agreement or instrument
referred to herein shall be waived or any other guarantee of any of the Buyer
Guaranteed Obligations or any security therefor shall be released or exchanged
in whole or in part or otherwise dealt with;


 


(iv)                              any Lien or
security interest granted to, or in favor of, the Seller as security for any of
the Buyer Guaranteed Obligations shall fail to be perfected;


 


(v)                                 the existence
of any claim, set-off or other rights that Systemax may have at any time
against a Buyer, whether in connection herewith or with any unrelated
transactions, or any modification or amendment of or supplement to the
Operative Agreements;


 


(vi)                              any invalidity
or unenforceability in any jurisdiction relating to or against a Buyer for any
reason of this Agreement, or any provision of any Applicable Law purporting to
prohibit the performance by a Buyer of any of its obligations under the
Operative Agreements; or


 


(vii)                           any other act
or omission to act or delay of any kind whatsoever by a Buyer, or any other
circumstance whatsoever that might, but for the provisions of this Section 10.16,
constitutes a legal or equitable discharge of the obligations of a Buyer under
the Operative Agreements.


 


(c)          Systemax hereby irrevocably
and unconditionally waives, to the fullest extent permitted by applicable law: (i) notice
of acceptance of the guaranty provided in this Section 10.16 and notice of
any liability to which this guaranty may apply, (ii) all notices that may
be required by Applicable Law or otherwise to preserve intact any rights of the
Seller against a 


 


42





















 


Buyer,
including any demand, presentment, protest, proof of notice of non-payment,
notice of any failure on the part of the Seller to perform and comply with any
covenant, agreement, term, condition or provision of any agreement and any
other notice to any other party that may be liable in respect of the
obligations guaranteed hereby (including a Buyer), and (iii) any right to
the enforcement, assertion or exercise by the Seller of any right, privilege or
remedy conferred upon a Buyer under the Operative Agreements, or otherwise.


 


(d)         The obligations of Systemax
under this Section 10.16 shall be automatically reinstated if and to the
extent that for any reason any payment by or on behalf of a Buyer in respect of
the Buyer Guaranteed Obligations is rescinded or must be otherwise restored by
any holder of any of the Buyer Guaranteed Obligations, whether as a result of
any Legal Proceedings in Bankruptcy Law or otherwise, and Systemax agrees that
it will indemnify Seller on demand for all reasonable costs and expenses
(including, without limitation, fees of counsel) incurred by Seller in
connection with such rescission or restoration, including any such costs and
expenses incurred in defending against any claim alleging that such rescinded
or restored payment constituted a preference, fraudulent transfer or similar
payment under any Bankruptcy Law. The obligations of Systemax hereunder shall
remain in full force and effect until the first day on which all of the Buyer
Guaranteed Obligations under the Agreement have been paid or otherwise
performed in full.


 


(e)          Systemax hereby agrees that
until the payment and satisfaction in full of all Buyer Guaranteed Obligations
under this Agreement, it shall not exercise any right or remedy arising by
reason of any performance by it of its guarantee in this Section 10.16,
whether by subrogation or otherwise, against a Buyer or any other guarantor of
any of the Buyer Guaranteed Obligations or any security for any of the Buyer
Guaranteed Obligations.


 


(f)            Systemax agrees that the
Buyer Guaranteed Obligations may be declared to be forthwith due and payable if
not paid or performed when due, notwithstanding any stay, injunction or other
prohibition preventing such declaration (or such obligations from becoming
automatically due and payable) as against a Buyer and that, in the event of
such declaration (or such obligations being deemed to have become automatically
due and payable), such obligations (whether or not due and payable by a Buyer)
shall forthwith become immediately due and payable Systemax for purposes of
this Section 10.16.


 


(g)         The guarantee in this Section 10.16
is a continuing guarantee, and shall apply to all Buyer Guaranteed Obligations
whenever arising and wherever located.


 


10.17                 Termination.


 


(a)          This Agreement may be
terminated with respect to the sale of the Purchased Internet Assets at any
time prior to the date of the Internet Closing:


 


(i)                                     by mutual
agreement of the Seller and the Internet Buyer;


 


(ii)                                  by either the
Seller or the Internet Buyer, by written notice to the other party if there is
a material breach of the other party’s obligations under this Agreement with
respect to the contemplated purchase of the Purchased Internet Assets and such
breach 


 


43





















 


continues
for a period of fifteen (15) days after written notice thereof has been given
by the non-breaching party to the breaching party, and notwithstanding that the
non-breaching party may have breached any obligations under this Agreement with
respect to the contemplated purchase of the Purchased Real Estate Assets;


 


(iii)                               by either the
Seller or the Internet Buyer, by written notice delivered to the other, if the
Internet Closing shall not have been consummated on or before January 31,
2008; provided that the right to terminate this Agreement with respect
to the sale of such Purchased Internet Assets under this Section 10.17(a)(iii) shall
not be available to any party whose failure to take any action required
hereunder to fulfill any obligation under this Agreement shall have been the
cause of, or shall have resulted in, the failure of the Internet Closing to
occur prior to such date.


 


(b)         This Agreement may be
terminated with respect to the sale of the Purchased Real Estate Assets subject
to any one or more of the Acquired Leases prior to the date of the applicable
Real Estate Closing:


 


(i)                                     at any time by
mutual agreement of the Seller and the Real Estate Buyer;


 


(ii)                                  at any time by
either the Seller or the Real Estate Buyer, by written notice to the other
party if there is a material breach of the other party’s obligations under this
Agreement with respect to the contemplated purchase of the Purchased Real
Estate Assets and such breach continues for a period of fifteen (15) days after
written notice thereof has been given by the non-breaching party to the
breaching party, and notwithstanding that the non-breaching party may have
breached any obligations under this Agreement with respect to the contemplated
purchase of the Purchased Internet Assets;


 


(iii)                               with respect to
an Acquired Lease which requires the consent of the landlord to assign, by the
Real Estate Buyer at any time after the relevant landlord of the applicable
Acquired Lease refuses in writing to consent to the assignment of such lease to
the Real Estate Buyer; or


 


(iv)                              at any time by
either the Seller or the Real Estate Buyer, by written notice delivered to the
other, if the Real Estate Closing with respect to such Transferred Real Estate
Assets shall not have been consummated on or before February 29, 2008; provided
that the right to terminate this Agreement with respect to the sale of such
Real Estate Purchased Assets under this Section 10.17(b)(iv) shall
not be available to any party whose failure to take any action required
hereunder to fulfill any obligation under this Agreement shall have been the
cause of, or shall have resulted in, the failure of the Real Estate Closing to
occur prior to such date.


 


(c)          Effect of Termination.  If a termination provided for in this Section 10.17
is exercised, there shall be no liability on the part of any Party with respect
to the contemplated sale of the Purchased Internet Assets or the applicable
Purchased Real Estate Assets, as the case may be; provided that, (i) this
Article 10 shall survive any such termination and (ii) no termination
will relieve any Party from any liability for any breach of this Agreement
occurring prior to such 


 


44





















 


termination.  For the benefit of doubt, it is understood
that no termination pursuant to Section 10.17(a) shall affect the
sale of any Purchased Real Estate Assets or the rights, liabilities and
obligations of the Parties with respect thereto and no termination pursuant to Section 10.17(b) shall
affect the sale of the Purchased Internet Assets or the rights, liabilities and
obligations of the Parties with respect thereto.


 


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45

















 


IN
WITNESS WHEREOF the Parties have caused this Agreement to be executed as of the
date set forth above by their duly authorized representatives.


 


	
  SYSTEMAX INC.

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Richard Leeds

  
	
  Name:

  	
  Richard Leeds

  
	
  Title:

  	
  Chairman and Chief Executive Officer

  
	
   

  	
   

  
	
  NEW SAH CORP.

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Richard Leeds

  
	
  Name:

  	
  Richard Leeds

  
	
  Title:

  	
  President

  
	
   

  	
   

  
	
  DOTDEAL INC.

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Richard Leeds

  
	
  Name:

  	
  Richard Leeds

  
	
  Title:

  	
  President

  
	
   

  	
   

  
	
  LONGHORN INC.

  
	
   

  	
   

  
	
  By:

  	
   /s/ Richard
  Leeds

  
	
  Name:

  	
  Richard Leeds

  
	
  Title:

  	
  President

  
			



 


{Signature Page to Asset
Purchase Agreement}


 

















 


IN
WITNESS WHEREOF the Parties have caused this Agreement to be executed as of the
date set forth above by their duly authorized representatives.


 


	
  COMPUSA INC.

  
	
   

  	
   

  
	
  By: 

  	
  /s/ William Weinstein

  
	
  Name:

  	
  William Weinstein

  
	
  Title:

  	
  President