kl05035_ex10-1.htm


    
      

    

     

    Exhibit 10.1

     

    
 

     

     

    
 

     

    ASSET
PURCHASE AGREEMENT

     

     

    Dated
as of April 5, 2009

     

     

    among

     

     

    SYSTEMAX
INC.,

     

     

    as
Buyer,

     

     

    and

     

     

    CIRCUIT
CITY STORES WEST COAST, INC.

     

     

    and

     

     

    CIRCUIT
CITY STORES, INC.,

     

     

    as
Sellers

     

    



    
      
         


      

      
         


        
          

        

      

      
         


      

    


     

    ASSET PURCHASE
AGREEMENT

     

    This
ASSET PURCHASE
AGREEMENT, dated as of April 5, 2009 (this “Agreement”), is by
and among Systemax Inc., a Delaware corporation (“Buyer”), Circuit City
Stores West Coast, Inc., a California corporation (“CCWC”), and Circuit
City Stores, Inc., a Virginia corporation (the “Company”, and
together with CCWC, the “Sellers”).

     

    WHEREAS, each of CCWC and the
Company are debtors which have commenced cases under chapter 11 of the
Bankruptcy Code by filing voluntary petitions with the United States Bankruptcy
Court for the Eastern District of Virginia (the “Bankruptcy Court”)
(collectively, the “Cases”);

     

    WHEREAS, Sellers currently
operate the Business;

     

    WHEREAS, each of the Sellers
wishes to sell, or cause to be sold, to Buyer, and Buyer wishes to purchase from
the Sellers, all of the Acquired Assets pursuant to, inter alia, Sections 363
and 365 of the Bankruptcy Code, the applicable Federal Rules of Bankruptcy
Procedure, and all other Applicable Laws; and

     

    WHEREAS, the sale of the
Acquired Assets is subject to the approval of the Bankruptcy Court.

     

    NOW, THEREFORE, in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and subject to the
terms and conditions hereof, the parties, intending to be legally bound, hereby
agree as follows:

     

    ARTICLE
I


     

    PURCHASE AND SALE OF
ACQUIRED ASSETS; PURCHASE PRICE

     

    SECTION
1.01.    Purchase and Sale of
Acquired Assets.

     

    Subject
to the terms and conditions of this Agreement, at and as of the Closing, (a) the
Sellers shall (and the Company shall cause the Sellers and the Sellers’
subsidiaries to) sell, assign, convey, transfer and deliver to Buyer all of
seller’s rights and interests in and to the Acquired Assets, free and clear of
all Liens other than Assumed Liens, and free and clear of all Liabilities; and
(b) in exchange therefor, Buyer shall pay an amount equal to the Purchase Price
in accordance with Section 1.03, and shall accept, assume and agree to pay,
perform or otherwise discharge, in accordance with the respective terms and
subject to the respective conditions thereof, the Assumed Liens.

     

    SECTION
1.02.    Assets and
Liabilities.

     

    (a)    Acquired
Assets.  For purposes of this Agreement, “Acquired Assets”
means all rights and interests of the Sellers described in clauses (i) through
(vii) below, and a non-exclusive, perpetual, royalty free, worldwide right to
use the Alpine Data.  For the avoidance of doubt, if any Acquired
Asset is not sold, assigned, conveyed,

     

     

    
      
        
        

      

      
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    transferred
or delivered to Buyer or its designees on the Closing Date, such Acquired Asset
shall be sold, assigned, conveyed, transferred or delivered as promptly as
possible in accordance with the procedures for assumption and assignment set
forth in the Sale Order.

     

    (i)    The
“Circuit City” and related trademarks and domain names set forth on Schedule 1.02(a)(i)
and all goodwill associated with such trademarks (the “Circuit City
Marks”);

     

    (ii)    “The
City” and related trademarks and domain names set forth on Schedule
1.02(a)(ii) and all goodwill
associated with such trademarks (the “City Marks”), it
being understood that notwithstanding anything in this Agreement to the
contrary, the City Marks are being sold, assigned, conveyed, transferred or
delivered to Buyer on an “as is” basis, and all warranties, express or implied,
including warranties of merchantability and fitness for use, are excluded from
the sale and transfer of the City Marks.  In addition, Sellers make no
representations or warranties of any nature with respect to the City
Marks;

     

    (iii)    The other
miscellaneous domain names set forth on Schedule
1.02(a)(iii);

     

    (iv)    The
toll-free numbers set forth on Schedule
1.02(a)(iv);

     

    (v)     The
patents, and registrations and applications therefor, set forth on Schedule 1.02(a)(v)
(the “Patents”);

     

    (vi)    The
website content described in Schedule 1.02(a)(vi);
and

     

    (vii)    Subject
to the terms of Section 5.02(g), Section 5.06, and Bankruptcy Court approval,
the Circuit City Data.

     

    (b)    Excluded
Assets.  Notwithstanding anything to the contrary in this
Agreement and for the avoidance of doubt, Seller is not selling, conveying,
assigning, transferring or delivering to Buyer any assets or rights other than
those conveyed to Buyer pursuant to the terms of Section 1.02(a) (all other
assets and rights, the “Excluded
Assets”).

     

    (c)    Excluded
Liabilities.  Notwithstanding anything contained in this
Agreement to the contrary, Buyer is not assuming any Liabilities related to the
Acquired Assets.  All Liabilities related to the Acquired Assets shall
be Excluded Liabilities and shall be retained by and remain the Liabilities of
the Sellers.

     

    SECTION
1.03.    Purchase
Price.

     

    The
purchase price for the Acquired Assets (the “Purchase Price”)
shall be (a) an amount in cash equal to Six Million Five Hundred Thousand
Dollars ($6,500,000) (the “Initial
Consideration”) which for the purposes of this Agreement shall include
the good faith deposit previously delivered by Buyer to the Sellers in
connection with Buyer’s bid proposals for the Acquired Assets, and (b) the
Earn-Out Payment (as defined below).

     

     

    
      
        
        

      

      
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    SECTION
1.04.    Earn-Out
Payment.

     

    (a)           Buyer
shall pay or cause to be paid to Sellers an additional payment (each, an “Earn-Out Payment”),
as and to the extent provided in this Section 1.04, in respect of CC Net
Revenues (as defined below) of Buyer or its Affiliates during each Earn-Out
Period (as defined below).  As used herein each “Earn-Out Payment”
shall be computed as follows (provided, however, that each
dollar amount referenced below shall be reduced by fifty percent (50%) in the
case of the Third Earn-Out Period (as defined below)):

     

    
      
        
          
            
              
                	 
      	
                        In
      respect of CC Net Revenues during the then-applicable Earn Out
      Period:

                      	
                        The
      Earn-Out Payment on each such tranche of CC Net Revenues shall be equal
      to:

                      
	 	 	 
	
                        (a)

                      	
                        greater
      than $0 but less than Five Hundred Million Dollars
      ($500,000,000)

                      	
                        1⁄2
      of 1% of such CC Net Revenues

                      
	 	 	 
	
                        (b)

                      	
                        in
      respect of incremental CC Net Revenues above those in paragraph (a) and
      greater than Five Hundred Million Dollars ($500,000,000) 

                        but
      less than One Billion Dollars ($1,000,000,000)

                      	
                        1%
      of such CC Net Revenues

                      
	 	 	 
	
                        (c)

                      	
                        in
      respect of incremental CC Net Revenues above those in paragraphs (a) and
      (b) and greater than One Billion Dollars ($1,000,000,000) 

                        but
      less than One Billion Five Hundred Million Dollars
      ($1,500,000,000)

                      	
                        11⁄2%
      of such CC Net Revenues

                      
	 	 	 
	
                        (d)

                      	
                        in
      respect of incremental CC Net Revenues above those in paragraphs (a), (b)
      and (c) and greater than One Billion Five Hundred Million 

                        Dollars
      ($1,500,000,000)

                      	
                        13⁄4%
      of such CC Net
Revenues

                      


              

            

          

        

      

    

    


    For
purposes hereof, “CC
Net Revenues” shall mean the amount of gross revenues of Buyer or
Affiliates of Buyer during the Earn-Out Period from the sale of (i) goods
originated through any of the domain names or URLs acquired hereunder, less
returns, credits, allowances and freight charges or (ii) any other proprietary
product of Buyer or Affiliates of Buyer that is sold utilizing the Circuit City
brand through any other Buyer sales channel.  “Earn-Out Period”
shall mean each of the following periods: (i) the period commencing on the
thirtieth (30th) day following the Closing Date and ending on the one year
anniversary of the thirtieth (30th) day following the Closing Date (the “First Earn-Out
Period”); (ii) the period commencing on the day immediately following the
end of the First Earn-Out Period and ending on the one year anniversary of the
end

     

     

     

    
      
        
        

      

      
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    of the
First Earn-Out Period (the “Second Earn-Out
Period”); and (iii) the period commencing on the day immediately
following the end of the Second Earn-Out Period and ending on the date six (6)
months after the end of the Second Earn-Out Period (the “Third Earn-Out
Period”).

     

    (b)           As
soon as practicable following the end of each Earn-Out Period but in no event
more than ninety (90) days thereafter, Buyer shall prepare and deliver to the
Sellers, a certificate setting forth in reasonable detail the calculation of the
Earn-Out Payment associated with such Earn-Out Period (the “Earn-Out
Certificate”).

     

    (c)           Sellers
shall have a period of thirty (30) days after receipt of each Earn-Out
Certificate to audit at Sellers’ sole cost and expense the CC Net Revenues and
Buyer’s calculation of the Earn-Out Payment reflected in such Earn-Out
Certificate (the “Audit Period”), and
in this regard Sellers shall be given access, upon reasonable advance written
request during regular business hours, to Buyer’s books and records reasonably
necessary to determine the CC Net Revenues.  Sellers shall have a
period of ten (10) Business Days after the expiration of the each Audit Period
to present, in writing, to Buyer any objection Sellers may have to any of the
matters set forth in the related Earn-Out Certificate, which objections shall be
set forth in reasonable detail and shall state the basis for such objection in
reasonable detail.  If no objections are raised within such
10-Business Day period, the Earn-Out Certificate shall be deemed accepted and
approved by Buyer and by Sellers and the payment required by Section 1.04(a)
shall be made no later than the third (3rd) Business Day following the
expiration of such 10-Business Day period.

     

    (d)           If
Sellers shall raise any objections within the aforesaid 10-Business Day period,
representatives of Buyer and Sellers shall attempt to resolve the matter or
matters in dispute and, if resolved, shall accept on behalf of Buyer and Sellers
a revised Earn-Out Certificate prepared in accordance with such resolution,
whereupon the confirmed or revised Earn-Out Certificate shall be final, binding
and conclusive on Buyer and Sellers.  In such event, the payment
required by Section 1.04(a) shall be made no later than three (3) Business Days
following the receipt of such confirmed or revised Earn-Out Certificate by Buyer
and Sellers.

     

    (e)           If
such dispute cannot be resolved by representatives of Buyer and Sellers within
ten (10) Business Days after the delivery of the Earn-Out Certificate, then the
specific matters in dispute shall be submitted to a recognizable, reputable and
impartial certified public accounting firm that is mutually acceptable to the
Buyer and the Seller (the “Neutral
Firm”).  If the Buyer and the Sellers cannot agree upon a
Neutral Firm within ten (10) days, a mediator selected by JAMS at the request of
the parties shall choose a recognized, reputable, and impartial certified public
accounting firm to act as the Neutral Firm.  The Neutral Firm shall
promptly resolve the amounts remaining in dispute between the parties and shall,
within thirty (30) days of its engagement, deliver a revised Earn-Out
Certificate in accordance with its determination of the amounts remaining in
dispute.  Such determination shall be final, binding and conclusive on
Buyer and Sellers.  In such event, the payment required pursuant to
Section 1.04(a) shall be made no later than three (3) Business Days following
the receipt of the documents confirming such determination of the Neutral Firm
by Buyer and Sellers.

     

    (f)           The
fees and expenses of the Neutral Firm shall be borne by the Buyer if the Neutral
Firm determines that an Earn-Out Payment that has not been evidenced on the
Earn-Out Certificate delivered pursuant to Sections 1.04(b)-(d) is payable to
the Sellers for the applicable Earn-Out Period and the fees and expenses of the
Neutral Firm shall be borne by the Sellers if the Neutral Firm determines that
no Earn-Out Payments are payable to Sellers for the applicable Earn-Out Period
other than those Earn-Out Payments evidenced on the Earn-Out Certificate
delivered pursuant to Sections 1.04(b)-(d).

     

     

    
      
        
        

      

      
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    (g)           The
parties agree to cooperate with each other and each other’s authorized
representatives and with the Neutral Firm in order that any and all matters in
dispute be resolved as soon as practicable and that a final determination of the
Earn-Out Payments be made.

     

    SECTION
1.05.    Transfer
Taxes.

     

    Notwithstanding
any other provision herein, all Transfer Taxes attributable to the Sellers’ sale
of the Acquired Assets, as well as the cost of the filing of all necessary tax
returns and other documentation with respect to all such Transfer Taxes, shall
be borne and paid equally by the Sellers, on the one hand, and Buyer, on the
other, when due, and the Sellers and Buyer shall file all necessary tax returns
and other documentation required to be filed by them with respect to all such
Transfer Taxes, and, if required by applicable law, Buyer and the Sellers will,
and will cause their affiliates to, file or join in the execution of any such
tax returns and other documentation; provided that the parties shall reasonably
cooperate in availing themselves of any available exemptions from any collection
of (or otherwise reduce) any such Transfer Taxes.

     

    ARTICLE
II


     

    CLOSING; CERTAIN
DELIVERIES

     

    SECTION
2.01.    Closing.

     

    Unless
this Agreement shall have been terminated and the Transactions shall have been
abandoned pursuant to Article VII hereof, the closing of the Transactions (the
“Closing”)
shall take place at the Delaware offices of Skadden, Arps, Slate, Meagher &
Flom LLP, One Rodney Square, Wilmington, Delaware, at 10:00 a.m. on the second
Business Day following the satisfaction (or, to the extent permitted, the
waiver) of each of the conditions set forth in Article VI (other than those
conditions which, by their nature, can be fulfilled only at the Closing, but
subject to the fulfillment or waiver of such conditions) or at such other place
or at such other time as shall be agreed upon by Buyer and the
Company.  The date on which the Closing occurs is referred to in this
Agreement as the “Closing
Date.”

     

    SECTION
2.02.    Certain Deliveries of the
Sellers.

     

    At the
Closing, the Sellers shall, at Sellers’ expense, deliver the following to
Buyer:

     

    (a)    An
executed Bill of Sale, Assignment and Assumption Agreement in form and substance
set forth in Exhibit
A hereto;

     

    (b)    A
certified copy of the Sale Order;

     

    (c)    The
officer’s certificates required to be delivered pursuant to Section 6.02(c)
hereof;

     

    (d)    A
certified copy of all required directors’ resolutions;

     

     

    
      
        
        

      

      
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    (e)    Duly
executed and acknowledged (as appropriate) assignments of the U.S. trademark
registrations and applications and U.S. patents and patent applications included
in the Acquired Assets contemplated to be acquired pursuant to the terms hereof,
in a form reasonably acceptable to Buyer and suitable for recording in the U.S.
Patent and Trademark Office, as well as assignment documents for trademark
and/or patent rights in other jurisdictions as reasonably requested by
Purchaser;

     

    (f)    Such
other documents of assumption and adequate assurances as may be required by the
Sale Order that the Buyer shall have identified not later than five (5)
business days prior to the Closing Date; and

     

    (g)    Such
other documents as Buyer may reasonably require, including, without limitation,
as needed to convey to Buyer the Data, website content, toll-free numbers, and
domain names included in the Acquired Assets.

     

    SECTION
2.03.    Certain Deliveries of
Buyer.

     

    At the
Closing, Buyer shall, at Buyer’s expense, deliver to the Sellers:

     

    (a)    By wire
transfer of immediately available funds to the account(s) designated by the
Company, the Initial Consideration;

     

    (b)    An
executed Bill of Sale, Assignment and Assumption Agreement in form and substance
set forth in Exhibit
A hereto;

     

    (c)    The
officer’s certificate required to be delivered pursuant to Section 6.03(c)
hereof;

     

    (d)    An
executed copy of the Canada License (as hereinafter defined);

     

    (e)    Such
other documents of assumption and adequate assurance as may be required by the
Sale Order; and

     

    (f)    Such
other documents as Sellers may reasonably require.

     

    ARTICLE
III


     

    REPRESENTATIONS AND
WARRANTIES

    RELATING TO THE COMPANY AND
THE SELLERS

     

    Sellers
have delivered to Buyer and attached hereto certain Disclosure Schedules
prepared by Sellers with numbered sections corresponding to the relevant
sections in this Article III (the “Seller Disclosure
Schedules”), and any exception or qualification set forth in the Seller
Disclosure Schedules with respect to a particular representation or warranty
contained in this Article III shall be deemed to be an exception or
qualification with respect to such section of this Article III and all other
representations or warranties contained in this Article III only to the extent
any description of fact regarding the event, item or matter is disclosed in such
a way as to make it reasonably apparent from the face of such disclosure without
further inquiry that such exception or qualification is applicable to such other
Section of this Article III.

     

    The
Sellers hereby represent and warrant to Buyer, jointly and severally, as of the
date of this Agreement and (unless the representation and warranty specifies
that it is made as of the date of this Agreement) as of the Closing Date as
follows:

     

    SECTION
3.01.    Organization; Authority;
Execution and Delivery; Enforceability.

     

    (a)    Each
Seller is duly organized, validly existing and in good standing under the laws
of its jurisdiction of formation.

     

    (b)    The
Sellers have full power and authority to execute and deliver (or cause to
execute and deliver) this Agreement and each other document, instrument and
certificate contemplated by this Agreement (the “Seller Documents”)
and, subject to the entry of the Sale Order, to consummate (or cause to
consummate) the Transactions and transactions contemplated by the Seller
Documents.  The execution and delivery by the Sellers of this
Agreement and Seller Documents and the consummation by the Sellers of the
Transactions and transactions contemplated by the Seller Documents have been
duly authorized by all necessary corporate action.  The Sellers have
duly executed and delivered this Agreement and, assuming this Agreement
constitutes a valid and binding obligation of the other parties hereto, this
Agreement and the Seller Documents will, subject to the entry of the Sale Order,
constitute a valid and binding obligation of each of the Sellers enforceable
against it in accordance with its terms.

     

    (c)    Any
consent, authorization or approval required for the commencement of the Cases,
the execution and delivery of this Agreement and the Seller Documents and the
consummation of the Transactions and the transactions contemplated by the Seller
Documents has been obtained.

     

    SECTION
3.02.    No Conflicts;
Consents.

     

    Subject
to obtaining Bankruptcy Court approval pursuant to the Sale Order, and assuming
that Buyer acquires the Acquired Assets upon the consummation of the
Transactions, the execution and delivery by the Sellers of this Agreement does
not, and the consummation of the Transactions and compliance by the Sellers with
the terms hereof will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancellation or acceleration of any obligation or to
loss of a benefit under, or to increased, additional, accelerated or guaranteed
rights or entitlements of any Person under, or result in the creation of any
Lien upon any of the properties or assets of the Sellers or any of their
subsidiaries under, any provision of (i) the certificate of incorporation
or by-laws of the Company or the comparable governing instruments of any of the
Sellers, (ii) subject to obtaining the third party consents set forth on
Section 3.02 of the Seller Disclosure Schedules to the extent required, any
Contract to which the Company or any of the Sellers is a party or by which any
of their respective properties or assets is bound or (iii) any judgment,
order or decree (“Judgment”) or
statute, law, ordinance, rule or regulation (“Applicable Law”)
applicable to the Sellers or their respective properties or assets, other than,
in the case of clause (iii) above, any such items that, individually or in
the aggregate, would not reasonably be expected to have a Seller Material
Adverse Effect.  No consent of, or registration, declaration or filing
with, any Federal, state, local or foreign government or any court of competent
jurisdiction, administrative agency or commission or other governmental
authority or instrumentality, domestic or foreign (a “Governmental Entity”)
is required to be obtained or made by or with respect to Sellers or any of their
subsidiaries in

     

     

    
      
        
        

      

      
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    connection
with the execution, delivery and performance of this Agreement or the
consummation of the Transactions, other than (i) the Sale Order, (ii) such
filings as may be required by the Bankruptcy Court in connection with the Cases,
and (iii) such other items as are required solely by reason of the participation
of Buyer (as opposed to any third party) in the Transactions.

     

    SECTION
3.03.    Title to
Assets.

     

    The
Company or one of the Sellers has good and valid title to or leasehold interest
in the Acquired Assets in each case free and clear of Liens, except
(i) mechanics’, carriers’, workmen’s, landlord’s, repairmen’s or other like
Liens arising or incurred in the ordinary course of business, (ii) other
imperfections of title or encumbrances, if any, that, individually and in the
aggregate, do not materially impair, and would not reasonably be expected to
materially impair, the use of the Acquired Assets in the conduct of the Business
as conducted by the Company and its subsidiaries as of December 31, 2008, or
(iii) Liens listed in Section 3.03 of the Seller Disclosure Schedules (the Liens
described in clauses (i), (ii) and (iii) above are referred to collectively
as “Assumed
Liens”).  Assuming receipt of the Sale Order and obtaining the
consents listed in Section 3.02 of the Seller Disclosure Schedules, upon
Closing, Buyer will be vested with good and valid title to or leasehold interest
in the Acquired Assets free and clear of all Liens, except for the Assumed
Liens, to the fullest extent permissible under Sections 363 and 365 of the
Bankruptcy Code.

     

    SECTION
3.04.    Financial
Advisors.

     

      Except
as set forth on in Section 3.04 of the Seller Disclosure Schedules, no Person
has acted, directly or indirectly, as a broker, finder or financial advisor for
Sellers in connection with the Transactions and no Person is entitled to any fee
or commission or like payment in respect thereof.

     

    SECTION
3.05.    AS IS.

     

    EXCEPT AS
OTHERWISE SPECIFICALLY PROVIDED HEREIN, ALL OF THE ACQUIRED ASSETS ARE BEING
SOLD AND TRANSFERRED TO BUYER ON AN “AS IS” AND “WHERE IS” BASIS AND ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR USE, ARE EXCLUDED FROM THE SALE AND TRANSFER OF THE ACQUIRED
ASSETS.  SELLERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE
WITH RESPECT TO THE ACQUIRED ASSETS OTHER THAN AS EXPRESSLY PROVIDED FOR
HEREIN.

     

    SECTION
3.06.    Intellectual
Property.

     

    Except as
set forth on Section
3.06 of the Seller Disclosure Schedules:

     

    (a)    To the
Sellers’ knowledge, no third party is infringing upon, misappropriating, or
otherwise violating the Circuit City Marks or the Patents.

     

    (b)    To the
Seller’s knowledge, the use of the Circuit City Marks in the Business as
conducted as of December 31, 2008 does not conflict with, infringe upon or
violate any trademark right of any Person.

     

    (c)    The
execution, delivery and performance of this Agreement and the Seller Documents,
and the consummation of the transaction contemplated hereby and thereby, will
not, to the Sellers’ knowledge, constitute a material breach of any Contract
involving any Acquired Assets, nor cause the forfeiture or termination of any
Acquired Assets, except as would not reasonably be expected to result in a
Seller Material Adverse Effect.

     

     

    
      
        
        

      

      
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    (d)    Section 3.06 of the
Seller Disclosure Schedules sets forth a complete and accurate list of (i) any
Contract pursuant to which any third party is authorized to use any of the
Acquired Assets (the “Seller
Licenses”).  Each of the Seller Licenses are valid and
enforceable against the Sellers, and, to the knowledge of the Sellers, the other
party or parties thereto, in accordance with its terms.

     

    (e)    Sellers
have implemented industry “best practices” to ensure the physical and electronic
protection of the Circuit City Data and the Alpine Data from unauthorized
disclosure, use or modification.  Other than as set forth in Section 3.06 of the
Sellers Disclosures Schedules, there has been no breach of security involving
any of the Circuit City Data or the Alpine Data.  Sellers have neither
sold nor licensed to use any Circuit City Data.  The Circuit City Data
and the Alpine Data has been collected, stored, maintained and used in
accordance with all applicable terms and policies of the Sellers, and all
applicable U.S. laws and regulations.

     

    (f)    As of the
date of this Agreement, the Circuit City Data and the Alpine Data includes all
historical transaction data within the possession of Sellers with respect to
each individual listed therein.

     

    ARTICLE
IV

     

    REPRESENTATIONS AND
WARRANTIES OF BUYER

     

     

    Buyer
represents and warrants to the Sellers that, except as set forth in the Buyer
Disclosure Schedules, as of the date of this Agreement and as of the Closing
Date as follows:

     

    SECTION
4.01.    Organization, Standing and
Power.

     

    Buyer is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of formation.

     

    SECTION
4.02.    Authority; Execution and
Delivery; Enforceability.

     

    (a)    Buyer has
full power and authority to execute this Agreement and, subject to the entry of
the Sale Order, to consummate the Transactions.  The execution and
delivery by Buyer of this Agreement and the consummation by Buyer of the
Transactions have been duly authorized by all necessary corporate action. Buyer
has duly executed and delivered this Agreement, and assuming this Agreement
constitutes valid and binding obligations of the other parties hereto this
Agreement will, subject to the entry of the Sale Order, constitute a valid and
binding obligation of the Buyer, enforceable against it in accordance with its
terms, except as limited by (i) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors’ rights generally and (ii) general equitable
principles.

     

    (b)    To
Buyer’s knowledge, no state takeover statute or similar statute or regulation
applies or purports to apply to Buyer with respect to this Agreement or any the
Transactions.

     

     

     

    
      
        
        

      

      
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    SECTION
4.03.    No Conflicts;
Consents.

     

    (a)    The
execution and delivery by Buyer of this Agreement do not, and the consummation
of the Transactions and compliance by Buyer with the terms hereof will not
conflict with, or result in any violation of or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any Person under, or result in the creation of any Lien upon any
of the properties or assets of Buyer or any of its subsidiaries under, any
provision of (i) organizational documents of Buyer or any of its subsidiaries,
(ii) any Contract to which Buyer or any of its subsidiaries is a party or by
which any of their respective properties or assets is bound or
(iii) subject to the filings and other matters referred to in Section
4.03(b), any Judgment or Applicable Law applicable to Buyer or any of its
subsidiaries or their respective properties or assets, other than, in the case
of clauses (ii) and (iii) above, any such items that, individually or in the
aggregate, have not had and would not reasonably be expected to have a Buyer
Material Adverse Effect.

     

    (b)    No
consent of, or registration, declaration or filing with any Governmental Entity
is required to be obtained or made by or with respect to Buyer or any of its
subsidiaries in connection with the execution, delivery and performance of this
Agreement or the consummation of the Transactions, other than (i) such filings
as may be required by the Bankruptcy Court in connection with the Cases, and
(ii) such other items those that may be required solely by reason of the
participation of the Company (as opposed to any other third party) in the
Transactions.

     

    SECTION
4.04.    Financing.

     

    Buyer
will have funds on hand as of the Closing Date which will be sufficient to pay
the Purchase Price.

     

    SECTION
4.05.    No
Brokers.

     

    No
broker, investment banker or other Person is entitled to any broker’s, finder’s
or other similar fee or commission in connection with the Transactions based
upon arrangements made by or on behalf of Buyer.

     

    SECTION
4.06.    Litigation.

     

    There are
not any (a) outstanding Judgments against or affecting Buyer, (b) Proceedings
pending or threatened against or affecting Buyer, or (c) investigations by
any Governmental Entity that are pending or threatened against or affecting
Buyer that, in each case, individually or in the aggregate, would reasonably be
expected to have a Buyer Material Adverse Effect.

     

    ARTICLE
V

     

    COVENANTS

     

    SECTION
5.01.    Covenants Relating to
Conduct of Business.

     

    (a)    Except
for matters set forth in Section 5.01 of the Seller Disclosure Schedules or
otherwise expressly permitted by the terms of this Agreement, from the date of
this Agreement to the Closing, taking into account that the Sellers are involved
in a bankruptcy proceeding, the Sellers shall not, and shall cause their
subsidiaries not to, without the prior written consent of Buyer, which consent
shall not be unreasonably withheld, delayed or conditioned:

     

     

    
      
        
        

      

      
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    (i)    directly
or indirectly (through any merger, consolidation, reorganization, issuance of
securities or rights, license, lease, encumbrance or otherwise), sell, assign,
convey, transfer, license, lease or otherwise dispose of any Acquired Assets
other than (a) the Alpine Data or (b) the Circuit City Data as permitted in
Section 5.06(g);

     

    (ii)    directly
or indirectly solicit and/or negotiate an alternate transaction with any other
Person for the sale and purchase of any Acquired Assets prior to the filing with
the Bankruptcy Court of the Bid Procedures and Sale Motion (as defined herein);
or

     

    (iii)    authorize
any of, or commit or agree to take, whether in writing or otherwise, to do any
of, the foregoing actions, or request the Bankruptcy Court to approve or
authorize the Sellers to take or omit to take any action which would breach the
Sellers’ covenants under or any other provisions of this Agreement, or consent
to any such approval or authorization.

     

    (b)    Advise of
Changes.  The Sellers shall use all reasonable efforts to
promptly advise the Buyer orally (to be followed promptly by written
confirmation) of the occurrence of any matter or event that is material to the
Acquired Assets.

     

    SECTION
5.02.    Reasonable Best
Efforts.

     

    Upon the
terms and subject to the conditions herein provided, Buyer, on the one hand, and
each of the Sellers, on the other hand, shall (and each Seller shall cause its
subsidiaries to) use its respective reasonable best efforts to take, or cause to
be taken, all actions, and to do, or cause to be done, and to assist and
cooperate with the other parties hereto in doing, all things necessary, proper
or advisable under Applicable Laws and regulations to ensure that the conditions
set forth in this Agreement are satisfied and to consummate and make effective,
in the most expeditious manner practicable, the Transactions, including, without
limitation, the following:

     

    (a)    Buyer, on
the one hand, and each of the Sellers, on the other hand, shall (and each Seller
shall cause its subsidiaries to) use its reasonable best efforts (including, in
the case of the Sellers, petitioning the Bankruptcy Court pursuant to Sections
363 and 365 of the Bankruptcy Code) to obtain, at its own expense, any and all
approvals, authorizations, consents and other actions by Governmental Entities,
administrative agencies, courts and other Persons necessary or appropriate
(above and beyond the entry of the Sale Order) for such party to consummate the
Transactions.  Without limiting the generality of the foregoing, each
Seller shall (and shall cause its Subsidiaries to) use its reasonable best
efforts, considering the operation, force and effect of the Sale Order in
authorizing such transfers, to obtain, at its own expense, any approvals,
authorizations, consents and other actions by all parties necessary for the
Sellers to transfer to Buyer, as applicable, and Buyer to receive, all assets
associated with the Business which are Acquired Assets.

     

    (b)    Each of
the Sellers shall take all actions, including appropriate service and notice of
pleadings, in form and substance reasonably satisfactory to Buyer, needed to
obtain a Sale Order that authorizes, orders and effects a sale of all of the
Acquired Assets free and clear of all Excluded Liabilities and Liens other than
Assumed Liens and the other orders contemplated herein.

     

     

    
      
        
        

      

      
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    (c)    Each
Seller shall cooperate fully, following entry of the Sale Order approving the
sale of the Acquired Assets to Buyer or its designee, in the arrangements for
the transfer of the Acquired Assets from the Sellers to Buyer in an orderly
fashion, free and clear of and from any and all Excluded Liabilities and Liens
other than Assumed Liens and otherwise in accordance with the terms, provisions
and conditions of this Agreement and all other agreements, documents and
instruments executed and/or delivered in connection herewith, including to the
extent reasonably practical, entering into any ancillary insolvency,
restructuring or similar proceedings in any relevant non-U.S.
jurisdiction.

     

    (d)    Without
limiting the generality of the foregoing, the parties hereto shall furnish to
each other such necessary information and reasonable assistance, as each may
request in connection with each Seller’s preparation and filing of applications,
motion papers and filings, including the Bid Procedures and Sale Motion needed
to obtain Bankruptcy Court approval of the Transactions, and shall execute any
additional instruments necessary to consummate the Transactions, whether before
or after the Closing.

     

    (e)    Subject
to Applicable Law and the instructions of any Governmental Entity, the Sellers
and Buyer each shall keep the other apprised of the status of matters relating
to completion of the Transactions, including promptly furnishing the other with
copies of notices or other communications received by Buyer or the Sellers, from
any third party and/or any Governmental Entity with respect to such
Transactions.

     

    (f)    Not fewer
than five (5) days prior to Closing or such earlier date as prescribed by
Applicable Law, Sellers shall obtain all approvals and certificates (including
tax clearance certificates and all applicable bulk sale filings) required by any
Governmental Entity and shall deliver all notices required by any Governmental
Entity in connection with the sale of the Acquired Assets except to the extent
that any such approval certificate is not required by entry of the Sale
Order.

     

    (g)           Sellers
and Buyer shall use their reasonable best efforts to satisfy and otherwise
address matters related to the conveyance of Circuit City Data identified by the
CPO in the CPO Report or otherwise.

     

    SECTION
5.03.    Supplemental
Disclosure.

     

    Each
party shall promptly notify the other parties of, and furnish such other parties
with any information such other parties may reasonably request with respect to,
the occurrence to such party’s actual knowledge of any event or condition or the
existence to such party’s actual knowledge of any fact that would reasonably be
expected to cause any of the conditions set forth in Article VI to not be
satisfied.

     

    SECTION
5.04.    Further
Assurances.

     

    From time
to time, as and when requested by any party, each party shall execute and
deliver, or cause to be executed and delivered, all such documents and
instruments and shall take, or cause to be taken, all such further or other
actions as such other party may reasonably deem necessary or desirable to
consummate the Transactions, including, without limitation, providing the
assistance necessary or desirable to transfer the domain names conveyed to Buyer
pursuant to this Agreement.

     

     

    
      
        
        

      

      
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    SECTION
5.05.    Service.

     

    Each of
the Sellers shall (and shall cause its Subsidiaries to) timely serve notice of
the Bid Procedures and Sale Motion and the Sale Notice on all Persons legally
entitled to such notices and in a manner otherwise consistent with Applicable
Law.

     

    SECTION
5.06.    Circuit City
Data.

     

    With
respect to the transfer Circuit City Data from Sellers to Buyer, Buyer (at a
minimum) agrees (a) to adopt and comply with the Privacy Policy with respect to
the Circuit City Data; (b) to use PII for the same purpose(s) as are specified
in the Privacy Policy; (c) that, prior to making any material change to the
Privacy Policy with respect to Circuit City Data or the use or disclosure of PII
different from that specified in the Privacy Policy, Buyer will notify the
persons whose PII is included in the Circuit City Data by mail or email and
afford such persons the opportunity to opt-out of the changes to the Privacy
Policy or the new uses of their Data; (d) to employ appropriate information
security controls and procedures (technical, operational, and managerial) to
protect the Circuit City Data; (e) to abide by all applicable U.S. laws and
regulations; (f) to take such additional reasonable actions as may be agreed
between Sellers and Buyer or recommended or requested by the CPO, and (g) to
grant Seller a non-exclusive, perpetual, royalty free, worldwide right to use
the Circuit City Data in connection with the offer for sale and sale of renewals
of extended warranties sold by Circuit City to its customers.

     

    SECTION
5.07.    Bid Procedures and Sale
Motion.

     

    (a)    Within
five (5) Business Days following execution of this Agreement by both parties,
the Sellers will file a motion (the “Bid Procedures and Sale
Motion”) for entry of (A) an order, in a form attached hereto as Exhibit B,
(i) authorizing the Sellers to enter into this Agreement, subject to higher
or otherwise better proposals; (ii) establishing notice, bidding and sale
procedures (such sale procedures being the “Auction” and the
procedures being the “Bid Procedures”);
(iii) approving payment of the Break-up Fee and the Expense Reimbursement
if, and only if (1) Buyer is not in breach of or default under this Agreement,
(2) this Agreement is not conditioned on conducting any further, or completing,
due diligence, and (3) the Sellers consummate a transaction with a higher or
otherwise better bidder at the Auction for the sale of all or substantially all
of the Acquired Assets; and (iv) setting a sale hearing (such order, the
“Bid Procedures
Order”); and (B) an order, in the form attached hereto as Exhibit C,
authorizing and approving the Agreement and the sale of the Acquired Assets (the
“Sale
Order”).  The Sellers shall use their reasonable best efforts
to schedule a hearing to consider the Bid Procedures Order and a hearing to
consider the Sale Order (the “Sale Hearing”) as
soon as possible so as to obtain the entry by the Bankruptcy Court of the Bid
Procedures Order no later than April 30, 2009, and entry by the Bankruptcy Court
of the Sale Order no later than May 29, 2009.

     

    (b)    Buyer and
the Sellers shall cooperate with filing and prosecuting the Bid Procedures and
Sale Motion, and obtaining entry of the Bid Procedures Order and the Sale Order,
and the Sellers shall deliver to Buyer prior to filing, and as early in advance
as is practicable to permit adequate and reasonable time for Buyer and its
counsel to review and comment, copies of all proposed pleadings, motions,
notices, statements schedules, applications, reports and other papers to be
filed by the Sellers in connection with such motions and relief requested
therein.

     

     

    
      
        
        

      

      
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    SECTION
5.08.    Publicity.

     

    From the
date hereof through the Closing Date, no public release or announcement
concerning the Transactions shall be issued by any party without the prior
consent of Buyer and the Sellers (which consent shall not be unreasonably
withheld), except as such release or announcement may be required by law, in
which case the party required to make the release or announcement shall allow
the other parties reasonable time to comment on such release or announcement in
advance of such issuance; provided, however, that the
Sellers and Buyer may, in consultation with each other, make internal
announcements to their respective employees that are consistent with the
parties’ prior public disclosures regarding the Transactions after reasonable
prior notice to and consultation with the other.

     

    SECTION
5.09.    Canadian
Trademarks.

     

    Buyer
shall, subject to the terms and conditions set forth in that certain Asset
Purchase Agreement, dated as of February 23, 2009, among BELL CANADA, 4458729
CANADA INC., INTERTAN CANADA LTD., CIRCUIT CITY STORES WEST COAST, INC. and
VENTOUX INTERNATIONAL, INC. (the “Canada APA”), execute and deliver to the
parties to the Canada APA, in connection with the closing of the transactions
contemplated in the Canada APA, a Circuit City Trade-mark License Agreement in
the form attached to the Canada APA with regard to those Circuit City Marks
constituting “Licensed Trade-marks” as defined in the Canada APA (the “Canada
License”).  Intending to be legally bound, Buyer hereby irrevocably
constitutes and appoints each Seller, and any officer thereof, acting alone, as
the true and lawful attorney-in-fact of Buyer, with full power and authority in
Buyer’s name, place and stead, to execute and deliver the Canada License to each
party to the Canada APA, or, if determined advisable by such attorney-in-fact,
to deliver to each party to the Canada APA the executed copy thereof delivered
to Seller pursuant to Section 6.03(e), in each case in connection with the
closing of the transactions contemplated in the Canada APA.  The
foregoing power of attorney is coupled with an interest and
irrevocable.

     

    SECTION
5.10.    Employees.

     

    Notwithstanding
any of the terms and conditions to the contrary herein or  in the
Non-Disclosure Agreement, dated January 23, 2009, between Buyer and the Company
(the “Non-Disclosure
Agreement”), Buyer may (i) request a list from Sellers of former
officers, employees or independent contractors of Sellers primarily related to
the Business, and (ii) solicit any current or former officer, employee or
independent contractor of Sellers primarily related to the Business for the
purpose of discussing the potential retention of such individuals by Buyer
following the Closing.

     

    SECTION
5.11.    Access to
Information.

     

    From the
date hereof until the Closing Date, Sellers shall afford to Buyer and its
authorized personnel and representatives reasonable access during normal
business hours to make such reasonable investigation of the assets, properties,
business and operations of Sellers (including, without limitation, the Circuit
City Data and Alpine Data) to the extent they relate to the Business, and such
examination of the relevant books and records of the Business as Buyer may
reasonably request and to discuss the affairs, finances and accounts of the
Business with the personnel thereof.  Any such investigation or
examination shall be conducted at times reasonably acceptable to Sellers and
upon reasonable prior notice to Sellers identifying any personnel of Sellers
with whom Buyer desires to discuss the above referenced
matters.  Sellers may designate any Person to be present for any
such

     

     

    
      
        
        

      

      
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    discussion.  To
the extent reasonably practical, from the date hereof until the Closing Date,
Sellers shall promptly inform Buyer of any and all material matters that arise
during such period affecting the Business.  Notwithstanding anything
herein to the contrary, no such investigation or examination shall be permitted
to the extent that it would require Sellers or any Affiliate to disclose
information subject to attorney-client privilege or conflict with any
confidentiality obligations to which Sellers or any Affiliates are bound, from
which Sellers will use commercially reasonable efforts to be
released.

     

    SECTION
5.12.    Cessation of Use, Removal of
Marks.

     

    Sellers
shall cease all use of, and destroy all material including signage displaying or
referencing, the Marks acquired by the Buyer as of the Closing
Date.

     

    SECTION
5.13.    Trademark and Patent
Prosecution and Maintenance.

     

    From the
date hereof to the Closing Date, Sellers shall use commercially reasonable
efforts in the ordinary course of Business to protect and preserve the Circuit
City Marks and the Patents and shall not license, transfer or assign any of such
marks, or license, transfer or assign any of the City Marks or the Patents to
any Person, in the case of the Circuit City Marks and the City Marks other than
pursuant to the Circuit City Trade-mark License Agreement in the form attached
to the Canada APA with regard to those Circuit City Marks constituting “Licensed
Trade-marks” as defined in the Canada APA.

     

    ARTICLE
VI


     

    CONDITIONS
PRECEDENT

     

    SECTION
6.01.    Conditions to Each Party’s
Obligation.

     

    The
respective obligations of each party to effect the Transactions is subject to
the satisfaction or waiver on or prior to the Closing of the following
conditions:

     

    (a)    Governmental
Approvals.  All authorizations, consents, orders or approvals
of, or declarations or filings with, or expirations of waiting periods imposed
by, any Governmental Entity necessary for the consummation of the Transactions
shall have been obtained or filed or shall have occurred, as
applicable.

     

    (b)    No Injunctions or
Restraints.  No Applicable Law or injunction enacted, entered,
promulgated, enforced or issued by any Governmental Entity or other legal
restraint or prohibition preventing the consummation of the Transactions shall
be in effect.

     

    (c)    Bankruptcy Court
Orders.  The Bankruptcy Court shall have entered the Sale Order
and any other orders necessary to permit and consummate the Transactions, each
such other order to be in form and substance reasonably satisfactory to Buyer
and all such orders shall be Final Orders; provided, that it shall be a
condition only to the obligations of Buyer, and shall not be a condition to the
obligations of Sellers, that any order, including the Sale Order, be a Final
Order.

     

    SECTION
6.02.    Conditions to Obligations of
Buyer.

     

    The
obligation of Buyer to effect the Transactions is further subject to the
satisfaction (or waiver by Buyer) on or prior to the Closing Date of the
following conditions:

     

     

     

    
      
        
        

      

      
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    (a)    Representations and
Warranties of the Sellers.  The representations and warranties
of the Sellers in this Agreement shall be true and correct as of the date hereof
and as of the Closing Date as though made on the Closing Date, except to the
extent such representations and warranties expressly relate to an earlier date
(in which case such representations and warranties shall be true and correct on
and as of such earlier date), without regard to any materiality or “Seller
Material Adverse Effect” qualifiers contained in such representations and
warranties, in each case except for failures of such representations and
warranties to be true and correct that, (i) individually or in the aggregate,
have not had and would not reasonably be expected to have a Seller Material
Adverse Effect; or (ii) relate solely to liabilities which are Excluded
Liabilities or assets which are Excluded Assets.

     

    (b)    Performance of
Obligations.  The Sellers shall have performed or complied in
all material respects with all obligations and covenants required by this
Agreement to be performed or complied with by the Sellers at or prior to the
Closing.

     

    (c)    Officer’s
Certificate.  Buyer shall have received a certificate, dated
the Closing Date, of an officer of the Company to the effect that the conditions
specified in Section 6.02(a) and (b) above have been fulfilled.

     

    (d)    Consents.  All
consents listed in Section 3.02 of the Seller Disclosure Schedules shall have
been obtained and in full force and effect as of the Closing and without
imposing any obligations, financial or otherwise, on Buyer.

     

    (e)    No Seller Material Adverse
Effect.  Between the date hereof and the Closing Date, there
shall not have been a Seller Material Adverse Effect.

     

    (f)    Documents;
Actions.  At the Closing, and contemporaneously with all other
actions provided for herein, the appropriate Sellers shall have executed and
delivered the documents referenced in Section 2.02.

     

    (g)    Sale
Order.  The Sale Order shall be a Final Order or Final Orders
entered by the Bankruptcy Court in form attached hereto.

     

    SECTION
6.03.    Conditions to Obligation of
the Sellers.

     

    The
obligations of the Company and the Sellers to effect the Transactions are
subject to the satisfaction (or waiver by the Company) on or prior to the
Closing Date of the following conditions:

     

    (a)    Representations and
Warranties.  The representations and warranties of Buyer in
this Agreement shall be true and correct as of the date hereof and as of the
Closing Date as though made on the Closing Date, except to the extent such
representations and warranties expressly relate to an earlier date (in which
case such representations and warranties shall be true and correct on and as of
such earlier date), without regard to any materiality or “Buyer Material Adverse
Effect” qualifiers contained in such representations and warranties, in each
case except for failures of such representations and warranties to be true and
correct that, individually or in the aggregate, have not had and would not
reasonably be expected to have a Buyer Material Adverse Effect.

     

     

    
      
        
        

      

      
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    (b)    Performance of Obligations
of Buyer.  Buyer shall have performed or complied in all
material respects with all obligations and covenants required by this Agreement
to be performed or complied with by Buyer by the time of the
Closing.

     

    (c)    Officer’s
Certificate.  The Sellers shall have received a certificate,
dated the Closing Date, of an officer of Buyer to the effect that the conditions
specified in subsections 6.03(a) and (b) above have been fulfilled.

     

    (d)    Documents;
Actions.  At the Closing, and contemporaneously with all other
actions provided for herein, the Buyer shall have executed, or caused to have
been executed, and delivered the documents referenced in Section
2.02.

     

    (e)    Canada
License.  Buyer shall have executed and delivered to Sellers
the Canada License.

     

    ARTICLE
VII


     

    TERMINATION, AMENDMENT AND
WAIVER

     

    SECTION
7.01.    Termination.

     

    (a)    Notwithstanding
anything to the contrary in this Agreement, this Agreement may be terminated and
the Transactions abandoned at any time prior to the Closing:

     

    (i)     by mutual
written consent of the Sellers and Buyer;

     

    (ii)    upon
written notice, by either Buyer or the Sellers, if the Closing shall not have
occurred on or before the earlier of (i) consummation of an alternate
transaction, (ii) thirty (30) days after the Sale Hearing or (iii) July 15, 2009
(the “Drop Dead
Date”); provided, however, that, if the
Closing shall not have occurred on or before the Drop Dead Date due to a
material breach of this Agreement by Buyer or the Sellers, the breaching party
may not terminate this Agreement pursuant to this Section 7.01(a);

     

    (iii)    by
Sellers, if any condition to the obligations of Seller set forth in Section 6.01 or
6.03 shall have
become incapable of fulfillment other than as a result of a breach by Sellers of
any covenant or agreement contained in this Agreement, and such condition is not
waived by Sellers in writing;

     

    (iv)   by Buyer,
if any of the conditions to the obligations of Buyer set forth in Section 6.01 or 6.02 shall have
become incapable of fulfillment other than as a result of a breach of any
representation, warranty, covenant or agreement contained in this Agreement by
Buyer, and such condition is not waived by Buyer in writing;

     

    (v)    by the
Sellers, if Buyer shall have breached or failed to perform in any material
respect any of its respective representations, warranties, covenants or other
agreements contained in this Agreement, and such breach or failure to perform
(i) would give rise to the failure of a condition set forth in Section 6.01 or 6.03, as applicable,
and (ii) cannot be or has not been cured prior to the date that is five (5) days
from the date

     

     

    
      
        
        

      

      
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    that
Buyer is notified by the Company of such breach or failure to perform; provided, however, that the
Sellers shall not have a right to terminate this Agreement under this Section
7.01(a)(v) if any Seller is then in material breach of this
Agreement;

     

    (vi)        
by Buyer,
if the Sellers shall have breached or failed to perform in any material respect
any of its respective representations, warranties, covenants or other agreements
contained in this Agreement, and such breach or failure to perform (i) would
give rise to the failure of a condition set forth in Section 6.01 or 6.02, as applicable,
and (ii) cannot be or has not been cured prior to the date that is five (5) days
from the date that the Seller is notified by Buyer of such breach or failure to
perform; provided, however, that Buyer
shall not have a right to terminate this Agreement under this Section
7.01(a)(vi) if Buyer is then in material breach of this Agreement;

     

    (vii)        
by Buyer,
upon written notice to the Sellers, if the Bid Procedures Order is not entered
on or before twenty (25) days following the filing of a motion to seek approval
of the Bid Procedures Order, or is stayed, reversed,
amended or vacated; provided, however, that Buyer
shall not have a right to terminate this Agreement under this Section
7.01(a)(vii) if Buyer is then in material breach of this Agreement;

     

    (viii)    by Buyer,
upon written notice to the Sellers, if the Sale Order has not been entered
within forty-five (45) days after the entry of the Bid Procedures Order, or
if after such entry, such Sale Order has not, within eleven (11) days after its
entry, become final, non appealable and no longer subject to appeal,
reconsideration or stay; provided, however, that Buyer
shall not have a right to terminate this Agreement under this Section
7.01(a)(viii) if (a) Buyer is then in material breach of this Agreement or (b)
Buyer is not determined by the Sellers, in their sole discretion, to be the
highest or otherwise best bidder at the Auction;

     

     

    (ix)   by either
the Sellers or Buyer, if an Applicable Law or injunction which shall have become
final and nonappealable is in effect preventing the consummation of the
Transactions; and

     

    (x)    by the
Sellers if the Sellers terminate the bidding process or the Auction for the
Acquired Assets.

     

    (b)    In the
event of termination by the Company or Buyer pursuant to this Section 7.01,
written notice thereof shall forthwith be given to the other parties and the
Transactions shall be terminated, without further action by any
party.  If the Transactions are terminated as provided
herein:

     

    (i)    Buyer
shall, upon request, return to the Company or destroy all documents and other
material received from the Sellers relating to the Transactions, whether so
obtained before or after the date hereof; and

     

    (ii)    all
confidential information received by Buyer with respect to the business of the
Company and its subsidiaries shall be treated in accordance with the
Non-Disclosure Agreement, which shall remain in full force and effect
notwithstanding the termination of this Agreement.

     

     

     

    
      
        
        

      

      
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    SECTION
7.02.    Effect of
Termination.

     

    If this
Agreement is terminated and the Transactions are abandoned as described in
Section 7.01(a), (a) this Agreement shall become null and void and of no further
force and effect, except for the provisions of this Article VII; and (b) except
as set forth in clause (a) of this Section 7.02, there shall be no liability
hereunder on the part of Buyer, the Sellers, or their respective officers,
directors, shareholders, managers, members or partners, provided that no
termination shall relieve any party of liability for any material breach of any
provision of this Agreement occurring prior to such termination.

     

    SECTION
7.03.    Amendments and
Waivers.

     

    This
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.  By an instrument in writing, Buyer may
waive compliance by the Sellers with any term or provision of this Agreement
that the Sellers were or are obligated to comply with or perform.  By
an instrument in writing, the Sellers may waive compliance by Buyer with any
term or provision of this Agreement that Buyer was or is required to comply with
or perform.

     

    ARTICLE
VIII


     

    GENERAL
PROVISIONS

     

    SECTION
8.01.    Expenses.

     

    Except as
set forth in this Agreement and whether or not the Transactions are consummated,
each party shall bear all costs and expenses incurred or to be incurred by such
party in connection with this Agreement and the consummation of the
Transactions.

     

    SECTION
8.02.    No Survival of
Representations and Warranties.

     

    The
parties agree that the representations and warranties contained in this
Agreement shall not survive the Closing hereunder, and none of the parties shall
have any liability to each other after the Closing for any breach
thereof.

     

    SECTION
8.03.    Assignment.

     

    This
Agreement and the rights and obligations hereunder shall not be assignable or
transferable by any party without the prior written consent of the other parties
hereto; provided, however, that, Buyer
may assign its rights and obligations hereunder, in whole or in part, to one or
more designees of Buyer, provided that no such assignment shall relieve Buyer of
its liabilities and obligations hereunder if such assignee does not perform such
obligations and, provided, further, that this
Agreement may be assigned to one or more trustees appointed by the Bankruptcy
Court to succeed to the rights of the Sellers; provided, however, that any such
assignment shall not affect Buyer’s rights hereunder.  Subject to the
foregoing, this Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns, and except as
otherwise expressly provided herein, no other Person shall have any right,
benefit or obligation hereunder.

     

    SECTION
8.04.    No Third Party
Beneficiaries.

     

    This
Agreement is for the sole benefit of the parties hereto and their permitted
assigns and nothing herein expressed or implied shall give or be construed to
give to any Person, other than the parties hereto and such assigns, any legal or
equitable rights hereunder.

     

     

     

    
      
        
        

      

      
        18

        
          

        

      

      
        
        

      

    

     

     

    SECTION
8.05.    Remedies.

     

    Except as
otherwise expressly provided in this Agreement, any and all remedies expressly
conferred upon a party to this Agreement shall be cumulative with, and not
exclusive of, any other remedy contained in this Agreement, at law or in equity
and the exercise by a party to this Agreement of any one remedy shall not
preclude the exercise by it of any other remedy.  In addition, the
parties agree that irreparable damage would occur in the event that the parties
fail to perform their obligations in accordance with the terms of this Agreement
and each party shall be entitled to specific performance in such event, in
addition to any other remedy at law or in equity.

     

    SECTION
8.06.    Notices.

     

    All
notices or other communications required or permitted to be given hereunder
shall be in writing and shall be delivered by hand or sent by facsimile or sent
by overnight courier service and shall be deemed given when so delivered by
hand, or after one Business Day in the case of overnight courier service or, if
faxed, on the day confirmation of successful facsimile transmission is obtained
by the sender thereof, as follows:

     

    
      	
               
      

            	
              (a)

            	
              if
      to Buyer,

            


    

     

    
      	
               
      

            	
              Systemax
      Inc. 

                11
      Harbor Park Drive 

                  Port
      Washington, New York   11050 

                    Attention:
      Larry Reinhold, Chief Financial Officer 

                      Tel:
      (516) 608-3118 

                        Fax:

                      

                    

                  

                

              

            


    

     

     

    
      	
               
      

            	
              with
      a copy to:

            


    

     

    
      	
               
      

            	
              Systemax
      Inc. 

                11
      Harbor Park Drive 

                  Port
      Washington, New York   11050 

                    Attention:
      Curt Rush, General Counsel 

                      Tel:
      (516) 608-6708 

                        Fax:

                      

                    

                  

                

              

            


    

     

     

    
      	
               
      

            	
              and
      with a further copy to:

            


    

     

    
      	
               
      

            	
              Kramer
      Levin Naftalis & Frankel LLP 

                1177
      Avenue of the Americas 

                  New
      York, New York  10036 

                    Attention:
      Eric Lerner 

                      Tel:
      (212) 715-9494 

                        Fax:
      (212)
715-8000

                      

                    

                  

                

              

            


    

     

     

     

    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    

     

     

    
      	
                                (b)

            	
              
                if
      to the Sellers,

              

            


    

     

    
      	
               
      

            	
              Circuit
      City Stores, Inc. 

                9950
      Mayland Avenue 

                  Richmond,
      VA  23233 

                    Attn:  Danny
      W. Ramsey, Esq. 

                      Tel:  (804)
      486-2937 

                        Fax:  (804)
      486-8248

                      

                    

                  

                

              

            


    

     

    
      	
               
      

            	
              with
      a copy to:

            


    

     

    
      	
               
      

            	
              Skadden,
      Arps, Slate, Meagher & Flom LLP 

                One
      Rodney Square P.O. Box 636 

                  Wilmington
      DE 19801

                  Attn: Gregg M. Galardi, Esq.

                    Tel:  (302)
      651-3000 

                      Fax:  (302)
      651-3001

                    

                  

                

              

            


    

     

     

    SECTION
8.07.    Interpretation; Exhibits and
Schedules; Certain Definitions.

     

    (a)    The
headings contained in this Agreement, in any Exhibit or Schedule hereto and in
the table of contents to this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement.  All Exhibits and Schedules annexed hereto or referred to
herein are hereby incorporated in and made a part of this Agreement as if set
forth in full herein.  Any capitalized terms used in any Schedule or
Exhibit but not otherwise defined therein, shall have the meaning as defined in
this Agreement.  When a reference is made in this Agreement to a
Section, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated.

     

    (b)    For all
purposes hereof:

     

    “affiliate” of any
Person means another Person that directly or indirectly, through one or more
intermediaries, controls, is controlled by, or is under common control with,
such first Person.

     

    “Alpine Data” means
the Data collected by Sellers via Sellers’ retail channels other than the
circuit city.com website (including without limitation historical sales data by
SKU and via each of Sellers’ sales channels, and including retail store sales
data by store and SKU), and is commonly referred to by Sellers as the “Alpine
database,” but does not mean (i) such Data (a) as is included within
the definition of “Circuit City Data” or (b) that concerns consumers
whose Data is included within the definition of "Circuit City
Data";  (ii) personally identifiable consumer records on backup tapes
and on paper copies of sales tickets; (iii) credit card account numbers and
other financial records; and (iv) records of individuals whose addresses are
outside the United States.

     

    “Assumed Liens” means,
to the extent they would not be eliminated by the Sale Order, the Liens
described in Section 3.03.

     

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

     

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

     

     

    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    

     

     

    “Break-up Fee” means
$250,000, which is subject to Bankruptcy Court approval and is payable only to
the extent and under the circumstances set forth in this Agreement.

     

    “Business” means the
entirety of that portion of the business of Seller and its Affiliates that is
comprised of the ownership and/or operation of Circuit City commercial websites,
including, without limitation, www.circuitcity.com, all of which websites are
listed in the annexed Schedule 1.02, it being understood that such ownership and
operation includes, without limitation, the advertising, promotion, marketing,
transfer and sale of goods and services, and entry into agreements and
arrangements with customers, suppliers, service providers and other parties in
connection therewith, but does not include Sellers’ Firedog
business.

     

    “Business Day” shall
mean any day other than a Saturday, Sunday or any other day on which banks in
New York, NY are authorized or required by law or executive order to remain
closed.

     

    “Buyer Material Adverse
Effect” means the occurrence of a material adverse effect on the ability
of Buyer to perform its obligations under this Agreement.

     

    “Circuit City Data”
means (a) the Data collected by Sellers via the circuit city.com website and (b) Data
collected by Sellers via Sellers’ retail channels other than the circuit
city.com website (including without limitation historical sales data by SKU and
via each of Sellers’ sales channels, and including retail store sales data by
store and SKU) that concerns consumers who have made a purchase via the
circuitcity.com website, but does not mean (i) personally identifiable
consumer records on backup tapes and on paper copies of sales tickets; (ii)
credit card account numbers and other financial records; (iii) records of
individuals whose addresses are outside the United States; and (iv) “cookie”
information collected from persons visiting the circuitcity.com web
site.

     

    “Contract” means all
contracts, agreements, leases, licenses, indentures, notes, bonds, mortgages,
deeds of trust, loan agreements, credit agreements, pledges, encumbrances,
guarantees, reciprocal easement agreements, financing agreements, commitments,
conditional sales contracts, collective bargaining agreements, permits,
instruments, bids, orders, proposals and other legally binding arrangements,
whether written or oral.

     

    “CPO” means a
“consumer privacy ombudsman” as defined in the Bankruptcy Code.

     

    “CPO Report” means the
report, if any, filed with the Bankruptcy Court by a CPO.

     

    “Data” means customer
data (including, without limitation, customer names, email addresses, mailing
addresses, methods of contact and historical sales data with respect to each
such customer) in a standard electronic format usable for direct marketing
purposes.

     

    “Excluded Liabilities”
means Liabilities of the Sellers or any of their affiliates.

     

    “Expense
Reimbursement” means the actual, reasonable, and documented attorney’s
fees and expenses incurred by Buyer on or after January 23, 2009 and related to
the Transactions in an amount not to exceed $75,000, which is subject to
Bankruptcy Court approval and is payable only to the extent and under the
circumstances set forth in this Agreement.

     

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

     

     

    “Final Order” means an
order of the Bankruptcy Court or other court of competent jurisdiction: (a) as
to which no appeal, notice of appeal, motion to amend or make additional
findings of fact, motion or alter or amend judgment, motion for rehearing or
motion for new trial has been timely filed or, if any of the foregoing has been
timely filed, it has been disposed of in a manner that upholds and affirms the
subject order in all material respects without the possibility for further
appeal or rehearing thereon; (b) as to which the time for instituting or filing
an appeal, motion for rehearing or motion for new trial shall have expired; and
(c) as to which no stay is in effect; provided, however, that the
filing or pendency of a motion under Federal Rule of Bankruptcy Procedure 9024
shall not cause an order not to be deemed a “Final Order” unless such motion
shall be filed within ten (10) days of the entry of the order at
issue.

     

    “including” means
including, without limiting the generality of the foregoing.

     

    “Liabilities” means,
as to any Person, all debts, adverse claims, liabilities, commitments,
responsibilities and obligations of any kind or nature whatsoever, direct,
indirect, absolute or contingent, matured or unmatured of such Person, whether
accrued, vested or otherwise, whether known or unknown, foreseen or unforeseen,
and whether or not actually reflected, or required to be reflected, in such
Person’s balance sheets or other books and records.

     

    “Liens” means
mortgages, liens, security interests, charges, easements, leases, subleases,
covenants, rights of way, options, claims, restrictions or encumbrances of any
kind.

     

    “Person” means any
individual, firm, corporation, partnership, limited liability company, trust,
joint venture, Governmental Entity or other entity.

     

    “PII” means
“personally identifiable information” as defined in the Bankruptcy
Code.

     

    “Privacy Policy” means
Sellers' privacy policies attached as Exhibit
D.

     

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

     

    “Sale Notice” means
the notice given pursuant to the Bid Procedures Order.

     

    “Seller Material Adverse
Effect” means the occurrence of a material adverse effect on the ability
of any Seller to perform its obligations under this Agreement.

     

    “subsidiaries” of any
Person means another Person, an amount of the voting securities, other voting
ownership or voting partnership interests of which is sufficient to elect at
least a majority of its Board of Directors or other governing body (or, if there
are no such voting interests, 50% or more of the equity interests of which) is
owned directly or indirectly by such first Person or by another of its
subsidiaries.

     

    “Transactions” means
the transactions contemplated by this Agreement.

     

     

    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

     

     

    “Transfer Taxes” means
any transfer, documentary, sales, use, stamp, privilege, registration and other
such taxes, any conveyance fees, any recording charges and any other similar
fees and charges (including penalties, interest and additions in respect
thereof).

     

    SECTION
8.08.    Counterparts.

     

    This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and delivered to
the other parties.

     

    SECTION
8.09.    Entire
Agreement.

     

    This
Agreement and the Non-Disclosure Agreement, along with the Schedules and
Exhibits thereto, contain the entire agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersede all prior
agreements and understandings relating to such subject matter.  None
of the parties shall be liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject matter except
as specifically set forth herein or in the Non-Disclosure
Agreement.

     

    SECTION
8.10.    Severability.

     

    If any
provision of this Agreement (or any portion thereof) or the application of any
such provision (or any portion thereof) to any Person or circumstance shall be
held invalid, illegal or unenforceable in any respect by a court of competent
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision hereof (or the remaining portion thereof) or the application
of such provision to any other Persons or circumstances.

     

    SECTION
8.11.    Exclusive
Jurisdiction.

     

    The
Bankruptcy Court shall retain exclusive jurisdiction to enforce the terms of
this Agreement and to decide any claims or disputes which may arise or result
from, or be connected with, this Agreement, any breach or default hereunder, or
the Transactions.  Any and all claims, actions, causes of action,
suits and proceedings related to the foregoing shall be filed and maintained
only in the Bankruptcy Court, and the parties hereby consent to and submit to
the jurisdiction and venue of the Bankruptcy Court and shall receive notices at
such locations as indicated in Section 8.06 hereof.

     

    SECTION
8.12.    Governing
Law.

     

    This
Agreement shall be governed by and construed in accordance with the Bankruptcy
Code and the internal laws of the Commonwealth of Virginia applicable to
agreements made and to be performed entirely within such State, without regard
to the conflicts of law principles of such State.

     

    SECTION
8.13.    Waiver of Jury
Trial.

     

    Each
party hereby waives, to the fullest extent permitted by applicable law, any
right it may have to a trial by jury with respect to any litigation directly or
indirectly arising out of, under or in connection with this Agreement or the
Transactions.  Each party (a) certifies that no representative, agent
or attorney of any other party has represented, expressly or otherwise, that
such other party would not, in the event of litigation, seek to enforce the
foregoing waiver and (b) acknowledges that it and the other parties hereto have
been induced to enter into this Agreement, as applicable, by, among other
things, the mutual waivers and certifications in this Section 8.13.

     

     

    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

     

     

    SECTION
8.14.    Bankruptcy Court
Approval.

     

    This
Agreement shall not be binding on the Sellers until the Sale Order is entered,
other than Article V (other than covenants to be performed after the
Closing) and Article VIII, which shall be binding upon entry of the Bid
Procedures Order.

     

     

    [SIGNATURE
PAGE FOLLOWS]

     

     

     

    
 

     

     

    24

     

    
 

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    


    IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first written above.

     

     

                                                       SYSTEMAX INC.

       

                     By:  /s/ Richard
Leeds

                     Name: Richard
Leeds

                     Title: Chairman and Chief
Executive Officer

       

                     CIRCUIT CITY STORES,
INC.

       

                     By:  /s/ James
Marcum

                     Name: James
Marcum

                     Title: Vice Chairman, Acting Chief
Executive   Officer and President

       

                     CIRCUIT CITY STORES WEST
COAST, INC.

       

                     By:  /s/ Daniel
W. Ramsey

                     Name: Daniel W.
Ramsey

                     Title:
President

       

    

     

    
 

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

     

    


    


    Systemax,
Inc.

    11 Harbor
Park Drive

    Port
Washington, New York 11050

    


    April 9,
2009

    


    Circuit
City Stores, Inc.

    Circuit
City Stores West Coast, Inc.

    9950
Mayland Avenue

    Richmond,
VA 23233

    Attn:
Danny W. Ramsey, Esq.

    


    Re: Asset Purchase
Agreement

    


    Gentlemen:

    


    Reference is made to that certain Asset
Purchase Agreement (the “Agreement”), dated as
of April 5, 2009, among Systemax, Inc., as Buyer, and Circuit City Stores West
Coast, Inc. and Circuit City Stores, Inc., as Sellers.

    


    We agree
to amend Section 5.07(a)(iii) to the Agreement to read as follows:

    


    “(iii) approving payment of the
Break-up Fee and the Expense Reimbursement if, and only if (A) (1) Buyer is not
in breach of or default under this Agreement, (2) this Agreement is not
conditioned on conducting any further, or completing, due diligence or any
financing contingency, and (3) the Sellers consummate a transaction with a
higher or otherwise better bidder at the Auction for the sale of all or
substantially all of the Acquired Assets, or (B) the Sellers terminate the
bidding process or the Auction; and”

    


    We agree to amend Section 7.01(a)(x) to
the Agreement to read as follows:

    


    “by the Sellers or Buyer if the Sellers
terminate the bidding process or the Auction for the Acquired
Assets.”


    


    Please confirm the amendments to the
Agreement as provided above by signing a copy of this letter agreement in the
space provided below.

    


    


                        Sincerely,

    


    


                        Systemax,
Inc.

    


                        By: /s/ Curt Rush

                       Name: Curt
Rush

                       Title: Secretary and
General Counsel

    


    
 

    
      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

    

     

    


    


    Agreed
and accepted as of the date

    first
written above:

     

    


     

    Circuit
City Stores West Coast, Inc.

     

    By: /s/
Daniel W. Ramsey

       Name: Daniel W.
Ramsey

       Title:
President

     

     

    
 

     

    Circuit
City Stores, Inc.

     

    By: /s/
James Marcum

       Name: James
Marcum

       Title: Vice
Chairman, Acting Chief Executive Officer and President

    


     

     

    

      
        
           


        

        
          
          

          
            

          

        

        
           


        

      

      


      


      Systemax
Inc.

      11 Harbor
Park Drive

      Port
Washington, New York 11050

      


      May 14,
2009

      


      Circuit
City Stores, Inc.

      Circuit
City Stores West Coast, Inc.

      9950
Mayland Avenue

      Richmond,
VA 23233

      Attn:
Danny W. Ramsey, Esq.

      


      Re: Asset Purchase
Agreement

      


      Gentlemen:

      


      Reference is made to that certain Asset
Purchase Agreement (the “Agreement”), dated as
of April 5, 2009, among Systemax Inc., as Buyer, and Circuit City Stores West
Coast, Inc. and Circuit City Stores, Inc., as Sellers, as amended by that
certain letter agreement dated April 9, 2009. Capital terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Agreement.

      


      The Buyer and Sellers agree to the
following:

      


      (A)           At
the Closing, the Sellers shall, at Sellers’ expense, deliver the Acquired Assets
to Pocahontas Acquisition Corp, as the Buyer’s designee under the
Agreement.  Pursuant to Section 2.03 of the Agreement the Seller shall
execute the Bill of Sale and Assignment and Assumption Agreement in favor of
Pocahontas Acquisition Corp, together with such other documents as the Buyer may
reasonably require, including, without limitation, as needed to convey to
Pocahontas Acquisition Corp ownership of the Data, website content, toll-free
numbers, and domain names included in the Acquired Assets pursuant to the final
Sale Order.

      


      (B)           Pursuant
and subject to the final Sale Order, at the Closing the Sellers shall deliver,
or cause to be delivered, to Epsilon Data Management, LLC on behalf of
Pocahontas Acquisition Corp, the Alpine Data and the Circuit City
Data.

      


      (C)           Section
1.03 of the Agreement is hereby amended by deleting the phrase “Six Million Five
Hundred Thousand Dollars ($6,500,000)” and replacing such phrase with the phrase
“Fourteen Million Dollars ($14,000,000)”.

      


      (D)           Section
1.04(a) of the Agreement is hereby amended to add the following language to the
end of such section:

      


      “Notwithstanding the foregoing, if by
the date that payment of any amounts relating to the Third Earn-Out Period is
due under Sections 1.04(c), (d) or (e) below, as applicable (the “Earn-Out Guarantee
Date”), Sellers shall not have received, under this Section 1.04(a),
Earn-Out Payments in an aggregate amount equal to Three Million Dollars
($3,000,000)

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

       

       

      (the
“Earn-Out Guarantee
Amount”) the Buyer shall pay or cause to be paid to Sellers an amount
equal to any shortfall (the “Earn-Out Short Fall
Amount”) between (x) the Earn-Out Guarantee Amount and (y) the actual
Earn-Out Payments Sellers shall have received under this Section 1.04(a) by the
Earn-Out Guarantee Date. Within three (3) Business Days following the Closing
Date the Buyer shall post an irrevocable letter of credit issued by JPMorgan
Chase in favor of Sellers in respect of and securing the Buyer’s obligation to
pay or cause to be paid to Sellers the Earn-Out Short Fall Amount (if any) up to
the Earn-Out Guarantee Amount in accordance with the terms set forth in this
Section 1.04(a).”

      


      (E)           Section
5.06(g) of the Agreement is hereby amended to add the following language to the
end of such section:

      


      “The Buyer and its assigns shall not
(1) communicate with persons who were customers of Circuit City (the "Warranty Customer")
and to whom a warranty contract was issued for any product sold by Circuit
City under any
agreement between Circuit City and any third party pursuant to which warranty
contracts were issued prior to March 31, 2009 (each a "Warranty Contract")
with respect to or in connection with any issue related to such Warranty
Contract, except if the inquiry or contact is initiated by such Warranty
Customer in which case the Buyer or its assigns shall direct the Warranty
Customer to the present obligor or administrator for such Warranty Contract, (2)
solicit any Warranty Customer to cancel an existing Warranty Contract, or (3)
solicit any Warranty Customer to renew or replace any existing Warranty
Contract; provided, however, that neither the Buyer nor its assigns are
prohibited from contacting any such Warranty Customer for any other
purpose.”

      


      (F) Section
5.09 of the Agreement is hereby amended to add the following at the end of the
phrase "in the form attached to the Canada APA" appearing therein:

      


      ", as
amended by the side letter dated May 12, 2009 between the parties to the Canada
APA and InterTan, Inc."

      


      (G) Section
5.09 of the Agreement is further hereby amended by deleting the final sentence
of such section and replacing it with the following sentence:

      


      “Intending
to be legally bound, Buyer hereby irrevocably constitutes and appoints each
Seller, and any officer thereof, acting alone, as the true and lawful
attorney-in-fact of Buyer, with full power and authority in Buyer’s name, place
and stead, to date and deliver the executed Canada License delivered by Buyer to
Sellers at the Closing pursuant to Section 2.03(d). The foregoing power of
attorney is coupled with an interest and irrevocable.”

      


      (H) Section
8.09 of the Agreement is hereby amended to add the following language to the end
of such section:

      


      “In the
event of a conflict between the terms of this Agreement and the Sale Order the
terms of the Sale Order shall prevail.”

      


      (I) Section
3.03 and the second paragraph of Section 3.06 of the Seller Disclosure Schedules
to the Agreement are each hereby amended to read in their entirety as
follows:

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
 

      "Certain
of the Circuit City Marks are currently subject to that certain Amended and
Restated Trade-Marks License Agreement, effective May 11, 2009, between Circuit
City Stores West Coast, Inc. and InterTAN Canada Ltd. and will constitute
"Licensed Trade-marks" as defined in that certain Asset Purchase Agreement,
dated as of February 23, 2009 among BELL CANADA, 4458729 CANADA INC., INTERTAN
CANADA LTD., CIRCUIT CITY STORES WEST COAST, INC. and VENTOUX INTERNATIONAL,
INC. (the "Canada
APA"), pursuant to which Circuit City Stores West Coast, Inc. and any
purchaser of such Circuit City Marks is obligated, subject to the terms and
conditions set forth therein, to execute a Circuit City Trade-mark License
Agreement in the form attached to the Canada APA, as amended by the side letter
dated May 12, 2009 between the parties to the Canada APA and InterTan,
Inc."

      


      (J) Schedule
1.02(a)(i) to the Agreement is hereby amended to add the following language to
the end of such schedule:

      


      “Circuit City” and related Trademark
Applications for Registration and Registrations (cont.):

      


      All
right, title and interest including, without limitation, any common law rights
with respect to or associated with the abandoned Canadian trademarks
applications for THE SOURCE BY CIRCUIT CITY & Design (Canadian application
number 1253279) and THE SOURCE BY CIRCUIT CITY (Canadian application number
1252450), but solely for the purpose of allowing Buyer to license
such rights pursuant to the Canada License, which Canada License includes
an express acknowledgement by Buyer and the licensee thereunder that Buyer and
such licensee will not be entitled to use or license such trade-marks in
Canada after expiry or termination of the Canada License. For
greater certainty, Buyer acknowledges that even if the Canadian application
numbers 1253279 and 1252450 have not been abandoned by the Closing, CCWC will be
abandoning such applications forthwith, and no right, title or interest in and
to the pending Canadian applications will be transferred to Buyer, except as
expressly referred to herein.

      


      “Circuit
City” and related Domain Registrations (cont.):

      


      circuitcity.cn

      


      circuitcity.ca

      


      circuitcitycanada.ca

      


      circuitcitycanada.com

      


      (K)           Section
1.04(e) of the Agreement is hereby amended by deleting the phrase “delivery of
the Earn-Out Certificate” and replacing such phrase with the phrase “expiry of
the Audit Period”.

      


      (L)           Section
2.02 of the Agreement is hereby amended to add the following language as Section
2.02(h):

       

       

      
        
          
          

        

        
          
          

          
            

          

        

        
          
          

        

      

      
 

      “(h)           An
executed Domain Name Assignment from InterTan Canada Ltd. to the Buyer or its
designee, dated as of the Closing Date, in the form attached as Exhibit E
hereto.”

      


      Please
confirm the terms of this letter agreement as provided above by signing a copy
of this letter agreement in the space provided below.

      


      


      [Signature page follows]

       

       

       


      
        
           


        

        
          
          

          
            

          

        

        
           


        

      


      


                          Sincerely,

      


      


                          Systemax
Inc.

      


                          By: /s/ Larry
Reinhold

                        Name: Larry Reinhold

                        Title: Chief Financial
Officer

      


      


                          Pocahontas
Acquisition Corp

      


                          By: /s/ Larry
Reinhold

                        Name: Larry Reinhold

                        Title: Vice
President

      


      


      Agreed
and accepted as of the date

      first
written above:

       

      


       

      Circuit
City Stores West Coast, Inc.

       

      By: /s/
Michelle Mosier

         Name: Michelle
Mosier

         Title:  Treasurer,
Chief Financial Officer and Secretary

       

      
 

      Circuit
City Stores, Inc.

       

      By: /s/
Michelle Mosier

         Name: Michelle
Mosier

         Title: Vice
President and Controller