<PAGE>
As filed with the Securities and Exchange Commission on December 6, 1996.
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
FOR REGISTRATION OF CERTAIN CLASSES
OF SECURITIES PURSUANT TO SECTION 12(b) OR (g)
OF THE SECURITIES EXCHANGE ACT OF 1934
--------------
CompUSA Inc.
(Exact name of registrant as specified in its charter)
--------------
Delaware 75-2261497
(State of incorporation or organization) (IRS Employer
Identification No.)
14951 North Dallas Parkway
Dallas, Texas 75240
(Address of principal executive offices,
including zip code)
--------------
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
===============================================================================
Title of each class Name of each exchange on which
to be so registered each class is to be registered
-------------------------------------------------------------------------------
Common Stock, $.01 par value New York Stock Exchange
================================================================================
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
Not applicable
================================================================================
<PAGE>
Item 1. Description of the Registrant's Securities to be Registered.
-----------------------------------------------------------
This Registration Statement relates to the registration of the Common
Stock, par value $0.01 per share ("Common Stock"), of CompUSA Inc., a Delaware
corporation (the "Company"), pursuant to Section 12(b) of the Securities
Exchange Act of 1934, as amended (the "Act"). The following is a description
of the Company's capital stock.
The authorized capital stock of the Company consists of 200,000,000 shares
of Common Stock and 10,000 shares of preferred stock, par value $.01 per share
("Preferred Stock"), 2,500 shares of which have been designated Series A Junior
Participating Preferred Stock. See "Rights Plan."
COMMON STOCK
The Common Stock is listed on the NYSE under the symbol "CPU." At December
3, 1996, there were 90,972,440 shares of Common Stock outstanding, held by
approximately 1,398 holders of record.
Holders of shares of Common Stock are entitled to one vote per share on
matters to be voted upon by the stockholders, and, subject to the prior rights
of the holders of Preferred Stock, to receive dividends when and as declared by
the Board of Directors with funds legally available therefor and to share
ratably in the assets of the Company legally available for distribution to the
stockholders in the event of liquidation or dissolution, after payment of all
debts and other liabilities. Holders of the Common Stock are not entitled to
preemptive rights and have no subscription, redemption or conversion privileges.
The Common Stock does not have cumulative voting rights, which means the holder
or holders of more than one-half of the shares voting for the election of
directors can elect all the directors then being elected. All the outstanding
shares of Common Stock are fully paid and nonassessable. The rights,
preferences and privileges of holders of Common Stock are subject to the rights
of the holders of shares of any series of Preferred Stock the Company may issue
in the future.
PREFERRED STOCK
At December 3, 1996, there were no shares of Preferred Stock outstanding.
The Company has no present plans to issue any shares of Preferred Stock, except
as set forth under "Rights Plan" below. However, the Board of Directors has the
authority, without further stockholder approval, to issue shares of Preferred
Stock in one or more series and to determine the dividend rights, any conversion
rights or rights of exchange, voting rights, rights and terms of redemption
(including sinking fund provisions), liquidation preferences and any other
rights, preferences, privileges and restrictions of any series of Preferred
Stock, and the number of shares constituting such series and the designation
thereof. The indenture related to the Company's 9 1/2% Senior Subordinated
Notes due 2000 (the "Senior Subordinated Notes") limits the Company's ability to
issue Preferred Stock.
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The issuance of Preferred Stock may have the effect of delaying, deterring
or preventing a change in control of the Company, making removal of the present
management of the Company more difficult or resulting in restrictions upon the
payment of dividends and other distributions to the holders of Common Stock.
RIGHTS PLAN
On April 29, 1994, the Board of Directors of the Company declared a
dividend of one right to purchase preferred stock (a "Right") for each
outstanding share of Common Stock to stockholders of record at the close of
business on May 9, 1994. Each share of subsequently issued Common Stock will
also incorporate one Right. The Rights will expire on April 28, 2004. Each
Right will entitle stockholders, in certain circumstances, to buy one ten-
thousandth of a newly issued share of Series A Junior Participating Preferred
Stock (the "Junior Preferred Stock") of the Company at an initial purchase price
of $120.
The Rights will be exercisable and transferable apart from the Common Stock
only if a person or group acquires beneficial ownership of 20% or more of the
Common Stock, or commences a tender or exchange offer upon consummation of which
such person or group would beneficially own 20% or more of the Common Stock.
The Company will generally be entitled to redeem the Rights at $.001 per
Right at any time until a person or group has become the beneficial owner of 20%
or more of the Common Stock. Under the Rights "flip-in" feature, if any person
or group becomes the beneficial owner of 20% or more of the Common Stock, then
each Right not owned by such person or group of certain related parties will
entitle its holder to purchase, at the Right's then current purchase price,
shares of Common Stock (or in certain circumstances as determined by the Board
of Directors, cash, other property or other securities) having a value of twice
the Right's purchase price.
Under the Rights "flip-over" provision, if, after any person or group
becomes the beneficial owner of 20% or more of the Common Stock, the Company is
involved in a merger or other business combination transaction with another
person, or sells 50% or more of its assets or earning power in one or more
transactions, each Right will entitle its holder to purchase, at the Right's
then current purchase price, shares of common stock of such other person having
a value of twice the Right's purchase price.
The Junior Preferred Stock will not be redeemable and, unless otherwise
provided in connection with the creation of a subsequent series of Preferred
Stock, will be subordinate to all other series of Preferred Stock. Each share
of Junior Preferred Stock will represent the right to receive, when and if
declared, a quarterly dividend at an annual rate equal to the greater of $1.00
per share or 10,000 times the quarterly per share cash dividends declared on the
Common Stock during the immediately preceding fiscal year. In addition, each
share of Junior Preferred Stock will represent the right to receive 10,000 times
any noncash dividends (other than dividends payable in Common Stock) declared on
the Common Stock, in like kind. In the event of the liquidation,
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dissolution or winding up of the Company, each share of Junior Preferred Stock
will represent the right to receive a liquidation payment in an amount equal to
the greater of $1.00 per share or 10,000 times the liquidation payment made per
share of Common Stock. Each share of Junior Preferred Stock will have 10,000
votes, voting together with the Common Stock. In the event of any merger,
consolidation or other transaction in which common shares are exchanged, each
share of Junior Preferred Stock represents the right to receive 10,000 times the
amount received per share of Common Stock. The rights of the Junior Preferred
Stock as to dividends, liquidation, voting rights and merger participation are
protected by anti-dilution provisions.
OTHER CHARTER AND BYLAW PROVISIONS
The Company's Restated and Amended Certificate of Incorporation (the
"Charter") and the Company's Restated and Amended Bylaws (the "Bylaws") contain
provisions prohibiting stockholder action by written consent by less than all
the stockholders; limiting the right to call stockholder meetings to the
Chairman of the Board, the President or the Board of Directors; requiring
advance notice for submission of stockholder proposals or nominees to be voted
on at stockholder meetings; prohibiting the stockholders from removing directors
from office except for cause and reserving to the directors the exclusive right
to change the number of directors or to fill vacancies on the Board; and
requiring a vote of stockholders owning 66 1/3% of the outstanding shares to
amend certain provisions of the Charter and Bylaws. The Charter also provides
for the Board of Directors to be divided into three classes of directors serving
staggered three-year terms. As a result, approximately one-third of the Board of
Directors will be elected each year.
TRANSFER AGENT AND REGISTRAR
American Stock Transfer & Trust Company, New York, New York, is the
transfer agent and registrar for the Common Stock.
Item 2. Exhibits.
--------
The Common Stock is listed on the New York Stock Exchange, on which other
securities of the Company are listed. In accordance with Part I of the
Instructions to Exhibits on Form 8-A, the following exhibits are being filed
with each copy of this Registration Statement, or are incorporated by reference
herein:
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EXHIBITS
Description Exhibit
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Restated and Amended Certificate of Incorporation of the 3
Company.(1)
Restated and Amended Bylaws of the Company.(2) --
____________
(1) Filed herewith.
(2) Previously filed as an exhibit to the Company's Quarterly Report on Form
10-Q for the quarter ended March 26, 1994 and incorporated herein by
reference.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act
of 1934, the registrant has duly caused this Registration Statement to be signed
on its behalf by the undersigned, thereto duly authorized.
CompUSA Inc.
Date: December 5, 1996 By /s/ Mark R. Walker
-----------------------------------------
Mark R. Walker,
Senior Vice President-General Counsel
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RESTATED AND AMENDED
CERTIFICATE OF INCORPORATION
OF
COMPUSA INC.
UNDER SECTIONS 242 AND 245
OF THE
DELAWARE GENERAL CORPORATION LAW
We, James F. Halpin, President, and Mark R. Walker, Secretary, of
CompUSA Inc., a corporation existing under the laws of the State of Delaware, do
hereby certify under the seal of the Corporation as follows:
ARTICLE ONE
The name of the Corporation is CompUSA Inc.
ARTICLE TWO
The original Certificate of Incorporation of the Corporation was filed
with the Secretary of State, Dover, Delaware, on November 28, 1988.
ARTICLE THREE
The name under which the Corporation was originally incorporated was
SW Acquisition Corp.
ARTICLE FOUR
The amendment to the Corporation's previous Restated and Amended
Certificate of Incorporation reflected herein was duly adopted by the
stockholders of the Corporation in accordance with the provisions of Sections
242 and 245 of the Delaware General Corporation Law.
ARTICLE FIVE
This Restated and Amended Certificate of Incorporation restates and
integrates previous provisions and also amends the provisions of the
Corporation's Certificate of Incorporation.
ARTICLE SIX
The text of the Restated and Amended Certificate of Incorporation of
the Corporation, as amended hereby, is hereby restated to read in full as
follows:
<PAGE>
FIRST. The name of the Corporation is CompUSA Inc.
SECOND. The address of its registered office in the State of Delaware
is 1013 Centre Road, in the City of Wilmington, Delaware 19804, County of New
Castle. The name of its registered agent at such address is Corporation Service
Company.
THIRD. The purpose of the Corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
FOURTH. The total number of shares of capital stock the Corporation
shall have authority to issue is 200,010,000 shares as follows:
<TABLE>
<CAPTION>
Number Par Value Aggregate
Class of Stock of Shares Per Share Amount
-------------- --------- --------- ---------
<S> <C> <C> <C>
Preferred
(the "Preferred Stock") 10,000 $.01 $100
Common
(the "Common Stock") 200,000,000 $.01 $2,000,000
</TABLE>
A. PREFERRED STOCK, $.01 PAR
SECTION 1. DESIGNATION BY BOARD OF DIRECTORS. The shares of Preferred
Stock may be issued from time to time in one or more series. The Board of
Directors is hereby authorized to establish and designate the different series
and to fix and determine the voting powers, full or limited, or no voting
powers, and such designations, preferences and relative, participating, optional
or other special rights and qualifications, limitations or restrictions thereof,
as shall be stated in a resolution or resolutions providing for the issue of
such series adopted by the Board of Directors, which powers, preferences,
rights, qualifications, limitations and restrictions need not be uniform among
series. Any of the voting powers, designations, preferences, rights and
qualifications, limitations or restrictions of any such series of stock may be
made dependent upon facts ascertainable outside the resolution or resolutions
providing for the issue of such stock adopted by the Board of Directors,
provided that the manner in which such facts shall operate upon the voting
powers, designations, preferences, rights and qualifications, limitations or
restrictions of such series of stock is clearly and expressly set forth in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors. Any resolution or resolutions adopted by the Board of
Directors pursuant to the authority vested in them by this Article Fourth,
Section A shall be set forth in a certificate of designation along with the
number of shares of stock of such series as to which the resolution or
resolutions shall apply and such certificate shall be executed, acknowledged,
filed, recorded, and shall become effective, in accordance with (S)103 of the
General Corporation Law of the State of Delaware. Unless otherwise provided in
any such resolution or resolutions, the number of shares of stock of any such
series
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to which such resolution or resolutions apply may be increased (but not above
the total number of authorized shares of the class) or decreased (but not below
the number of shares thereof then outstanding) by a certificate likewise
executed, acknowledged, filed and recorded, setting forth a statement that a
specified increase or decrease therein has been authorized and directed by a
resolution or resolutions likewise adopted by the Board of Directors. In case
the number of such shares shall be decreased, the number of shares so specified
in the certificate shall resume the status which they had prior to the adoption
of the first resolution or resolutions. When no shares of any such class or
series are outstanding, either because none were issued or because none remain
outstanding, a certificate setting forth a resolution or resolutions adopted by
the Board of Directors that none of the authorized shares of such class or
series are outstanding, and that none will be issued subject to the certificate
of designations previously filed with respect to such class or series, may be
executed, acknowledged, filed and recorded in the same manner as previously
described and it shall have the effect of eliminating from the Restated and
Amended Certificate of Incorporation all matters set forth in the certificate of
designations with respect to such class or series of stock. If no shares of any
such class or series established by a resolution or resolutions adopted by the
Board of Directors have been issued, the voting powers, designations,
preferences and relative, participating, optional or other rights, if any, with
the qualifications, limitations or restrictions thereof, may be amended by a
resolution or resolutions adopted by the Board of Directors. In the event of
any such amendment, a certificate which (1) states that no shares of such class
or series have been issued, (2) sets forth the copy of the amending resolution
or resolutions and (3) if the designation of such class or series is being
changed, indicates the original designation and the new designation, shall be
executed, acknowledged, filed, recorded, and shall become effective, in
accordance with (S)103 of the General Corporation Law of the State of Delaware.
SECTION 2. REGISTRATION OF TRANSFER. The Corporation shall keep at its
principal office (or at such other place as the Corporation reasonably
designates) a register for the registration of Preferred Stock. Upon the
surrender of any certificate representing Preferred Stock at such place, the
Corporation shall, at the request of the registered holder of such certificate,
execute and deliver a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares represented by the
surrendered certificate. Each such new certificate shall be registered in such
name and shall represent such number of shares as is requested by the holder of
the surrendered certificate and shall be substantially identical in form to the
surrendered certificate, and, if applicable with respect to such series of
Preferred Stock, dividends shall accrue on the Preferred Stock represented by
such new certificate from the date to which dividends have been fully paid on
such Preferred Stock represented by the surrendered certificate. The issuance of
new certificates to holders of surrendered certificates shall be made without
charge to the holders of the surrendered certificates for any issuance tax with
respect therefor or other cost incurred by the Corporation in connection with
such issuance.
SECTION 3. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Corporation (an affidavit of the registered holder shall be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing shares of any series of Preferred
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Stock, and in the case of any such loss, theft or destruction, upon receipt of
indemnity reasonably satisfactory to the Corporation, or, in the case of any
such mutilation upon surrender of such certificate, the Corporation shall (at
its expense) execute and deliver in lieu of such certificate a new certificate
of like kind representing the number of shares of such series represented by
such lost, stolen, destroyed or mutilated certificate, and, if applicable with
respect to such series of Preferred Stock, dividends shall accrue on the
Preferred Stock represented by such new certificate from the date to which
dividends have been fully paid on such lost, stolen, destroyed or mutilated
certificate.
SECTION 4. AMENDMENT AND WAIVER. No amendment or waiver of any
provision of this Section A shall be effective without the prior approval of the
holders of a majority of the Preferred Stock outstanding at the time such action
is taken.
B. COMMON STOCK
Except as otherwise provided in this Section B or as otherwise
required by applicable law, all shares of Common Stock shall be identical in all
respects and shall entitle the holders thereof to the same rights and
privileges, subject to the same qualifications, limitations and restrictions.
SECTION 1. VOTING RIGHTS. Except as otherwise provided in this Section
B or as otherwise required by applicable law, holders of Common Stock shall be
entitled to one vote per share on all matters to be voted on by the stockholders
of the Corporation.
SECTION 2. DIVIDENDS. As and when dividends are declared or paid
thereon, whether in cash, property or securities of the Corporation, the holders
of Common Stock shall be entitled to participate in such dividends ratably on a
per share basis. The rights of the holders of Common Stock to receive dividends
are subject to the provisions of the Preferred Stock.
SECTION 3. LIQUIDATION. Subject to the provisions of the Preferred
Stock, the holders of the Common Stock shall be entitled to participate ratably
on a per share basis in all distributions to the holders of Common Stock in any
liquidation, dissolution or winding up of the Corporation.
SECTION 4. REGISTRATION OF TRANSFER. The Corporation shall keep at its
principal office (or such other place as the Corporation reasonably designates)
a register for the registration of shares of Common Stock. Upon the surrender of
any certificate representing shares of Common Stock at such place, the
Corporation shall, at the request of the registered holder of such certificate,
execute and deliver a new certificate or certificates in exchange therefor
representing in the aggregate the number of shares of Common Stock represented
by the surrendered certificate, and the Corporation forthwith shall cancel such
surrendered certificate. Each such new certificate will be registered in such
name and will represent such number of shares of Common Stock as is requested by
the holder of the surrendered certificate and will be substantially identical in
form to the surrendered certificate. The issuance of new certificates to holders
of surrendered
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<PAGE>
certificates shall be made without charge to the holders of the surrendered
certificates for any issuance tax in respect therefor or other cost incurred by
the Corporation in connection with such issuance.
SECTION 5. REPLACEMENT. Upon receipt of evidence reasonably
satisfactory to the Corporation (an affidavit of the registered holder will be
satisfactory) of the ownership and the loss, theft, destruction or mutilation of
any certificate evidencing one or more shares of Common Stock, and in the case
of any such loss, theft or destruction, upon receipt of indemnity reasonably
satisfactory to the Corporation, or, in the case of any such mutilation upon
surrender of such certificate, the Corporation shall (at its expense) execute
and deliver in lieu of such certificate a new certificate of like kind
representing the number of shares of Common Stock represented by such lost,
stolen, destroyed or mutilated certificate and dated the date of such lost,
stolen, destroyed or mutilated certificate.
SECTION 6. AMENDMENT AND WAIVER. No amendment or waiver of any
provision of this Section B shall be effective without the prior approval of the
holders of a majority of the Common Stock outstanding at the time such action is
taken.
FIFTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation and for defining
and regulating the powers of the Corporation and its directors and stockholders
and are in furtherance and not in limitation of the powers conferred upon the
Corporation by statute:
(a) The election of directors need not be by written ballot.
(b) (i) The number of directors of the Corporation shall be such
number, not less than three nor more than thirteen, as shall be
specified from time to time in the manner provided in the bylaws,
provided that no action decreasing the number of directors shall have
the effect of shortening the term of any incumbent director and
provided further that no action shall be taken by the directors
(whether through amendment to the bylaws or otherwise) to increase the
number of directors as specified from time to time unless at least
three-quarters (75%) of the directors then in office shall concur in
said action.
(ii) Effective upon the declaration of effectiveness by the
Securities and Exchange Commission of the Corporation's registration
statement for the sale of Common Stock pursuant to a Public Offering
(the "Effective Date"), the Board of Directors shall be classified,
with respect to the time for which they severally hold office, into
three classes, as nearly equal in number as possible; the term of
office of those of the first class ("Class I Directors") to continue
until the first annual meeting of stockholders following the Effective
Date and until their successors are duly elected and qualified or
until their earlier resignation, death or removal; the term of office
of those of the second class ("Class II Directors") to continue until
the second annual meeting following the Effective Date and until their
successors are duly elected and qualified or until their earlier
resignation, death
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or removal, and the term of office of those of the third class ("Class
III Directors") to continue until the third annual meeting following
the Effective Date and until their successors are duly elected and
qualified or until their earlier resignation, death or removal. At
each annual meeting of the Corporation the successors to the class of
directors whose term expires at that meeting shall be elected to hold
office for a term continuing until the annual meeting held in the
third year following the year of their election and until their
successors are duly elected and qualified or until their earlier
resignation or removal. Prior to the Effective Date, the stockholders
of the Corporation shall adopt a resolution designating, from among
the members of the Board of Directors at the time of adoption of such
resolution, directors to serve as Class I Directors, Class II
Directors and Class III Directors.
(iii) Notwithstanding anything to the contrary in this
Restated and Amended Certificate of Incorporation or the bylaws of the
Corporation, (A) vacancies and newly created directorships, whether
resulting from an increase in the size of the Board of Directors, from
the death, resignation, disqualification or removal of a director or
otherwise, shall be filled solely by the affirmative vote of a
majority of the remaining directors then in office, or by the sole
remaining director, even though less than a quorum of the Board of
Directors, (B) any director elected in accordance with clause (A) of
this paragraph (iii) shall hold office for the remainder of the full
term of the class of directors in which the vacancy occurred or the
new directorship was created and until such director's successor shall
have been elected and qualified, (C) the number of directors shall be
fixed only by a vote of the Board of Directors, (D) no decrease in the
number of directors constituting the Board of Directors shall shorten
the term of any incumbent directors and (E) stockholders may effect
the removal of any director or directors only for cause, any such
removal for cause requiring the affirmative vote of holders of a
majority of the shares outstanding and entitled to vote in the
election of directors.
(c) The Board of Directors shall have the power and authority:
(1) to adopt, amend or repeal bylaws of the Corporation,
subject only to such limitation, if any, as may be from time to
time imposed by law or by the bylaws; and
(2) to the full extent permitted or not prohibited by law,
and without the consent of or other action by the stockholders,
to authorize or create mortgages, pledges or other liens or
encumbrances upon any, or all of the assets, real, personal or
mixed, and franchises of the Corporation, including after-
acquired property, and to exercise all of the powers of the
Corporation in connection therewith; and
(3) subject to any provision of applicable statute or of the
bylaws, to determine whether, to what extent, at what times and
places and under what conditions and regulations the accounts,
books and papers of the Corporation (other
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than the stock ledger), or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any
right to inspect any account, book or paper of the Corporation
except as conferred by statute or authorized by the bylaws or by
the Board of Directors.
(d) A merger or consolidation between the Corporation and any
other corporation or business entity that requires the approval of the
stockholders of the Corporation under the provisions of the Delaware
General Corporation Law in effect from time to time, or a sale, lease
or exchange of all or substantially all of the assets of the
Corporation, or a voluntary dissolution of the Corporation, may be
authorized only by the affirmative vote of holders of at least two-
thirds (66.66%) of the outstanding capital stock of the Corporation
entitled to vote thereon (including the affirmative vote of holders of
at least two-thirds (66.66%) of any class or series of capital stock
entitled to vote separately thereon).
(e) No action required to be taken or which may be taken at any
annual or special meeting of stockholders of the Corporation may be
taken by written consent of stockholders, unless a consent or consents
in writing, setting forth the action so taken, is signed by the
holders of all outstanding shares of capital stock of the Corporation
entitled to vote thereon and delivered to the Corporation by delivery
to its registered office in the State of Delaware, its principal place
of business, or an officer or agent of the Corporation having custody
of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall
be by hand or by certified or registered mail, return receipt
requested. Every written consent shall bear the date of signature of
each stockholder who signs the consent and no written consent shall be
effective to take the corporate action referred to therein unless,
within sixty days of the earliest dated consent delivered in the
manner required by this Article Fifth (e) to the Corporation, written
consents signed by all of the stockholders entitled to vote thereon
are delivered to the Corporation by delivery to its registered office
in the State of Delaware, its principal place of business, or an
officer or agent of the Corporation having custody of the book in
which proceedings of meetings of stockholders are recorded. Delivery
made to the Corporation's registered office shall be by hand or by
certified or registered mail, return receipt requested.
(f) Article Fifth (b), Article Fifth (c), Article Fifth (d),
Article Fifth (e) and this Article Fifth (f) of this Restated and
Amended Certificate of Incorporation, may be amended only by the vote
of holders of at least two-thirds (66.66%) of the capital stock of the
Corporation issued, outstanding and entitled to vote (including the
holders of at least two-thirds (66.66%) of the issued and outstanding
shares of any class or series entitled to vote separately thereon).
SIXTH: No director of the Corporation shall be personally liable to
the Corporation or to any of its stockholders for monetary damages for breach of
fiduciary duty as a director,
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notwithstanding any provision of law imposing such liability; provided, however,
that to the extent required from time to time by applicable law, this Article
Sixth shall not eliminate or limit the liability of a director, to the extent
such liability is provided by applicable law, (i) for any breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of Title 8 of the Delaware
Code, or (iv) for any transaction from which the director derived an improper
personal benefit. No amendment to or repeal of this Article Sixth shall apply
to or have any effect on the liability or alleged liability of any director for
or with respect to any acts or omissions of such director occurring prior to the
effective date of such amendment or repeal.
IN WITNESS WHEREOF, CompUSA Inc. has caused its corporate seal to be
affixed hereunder and this Restated and Amended Certificate of Incorporation to
be signed by James F. Halpin, its President, and attested by Mark R. Walker, its
Secretary, as of the 8th day of November, 1996.
CompUSA Inc.
By /s/ James F. Halpin
------------------------------
James F. Halpin, President
ATTEST:
/s/ Mark R. Walker
- ---------------------------
Mark R. Walker, Secretary
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