Exhibit
4.7


 


AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

ROLLER BEARING HOLDING COMPANY, INC.


 


The undersigned, for the
purpose of amending and restating the Certificate of Incorporation of Roller
Bearing Holding Company, Inc., a Delaware corporation (the “Corporation”),
does hereby certify that:


 


1.                                       The
date of filing of the Corporation’s original Certificate of Incorporation with
the Secretary of State of the State of Delaware was March 23, 1992;


 


2.                                       The
Amended and Restated Certificate of Incorporation has been duly adopted
pursuant to Sections 228, 242 and 245 of the Delaware General Corporation Law;


 


3.                                       Written
notice of the taking of action by written consent has been sent to all
shareholders who did not consent to the adoption of this Amended and Restated
Certificate of Incorporation; and


 


4.                                       The
Certificate of Incorporation of the Corporation is hereby amended and restated
in its entirety as follows:


 


FIRST:  Name.


 


The name of the
Corporation is:


 


Roller
Bearing Holding Company, Inc.


 


SECOND: 
Registered Office.


 


The address of the
registered office of the Corporation in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle; and the
name of its registered agent at that address is Corporation Service Company.


 


THIRD: 
Purposes.


 


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 Delaware.


 


FOURTH: 
Capital Stock


 


A.                                   Authorized
Capital Stock. The Corporation is authorized to issue five classes of
capital stock to be designated, respectively, “Common Stock,” “Class A
Preferred Stock,” “Class B Preferred Stock,”  “Class C
Preferred Stock” and “Class D Preferred Stock,” each of
which shall have a par value of $.01 per share. The total number of shares
which the Corporation is authorized to issue is 10,395,500 shares, of which:
(i) 9,000,000  shares shall be designated as Common Stock, of which (a)
8,000,000 shares shall be designated Class A Voting Common Stock (the “Class A
Common Stock”) and (b) 1,000,000  shares shall be designated


 

















 


Class B Supervoting
Common Stock (the “Class B Common Stock” and together
with the Class A Common Stock, the “Common Stock”); (ii) 15,500  shares
shall be designated as Class A Preferred Stock; (iii) 240,000 shares shall be
designated as Class B Exchangeable Convertible Participating Preferred Stock
(the “Class
B Preferred Stock” and each share thereof a “Class B Share”);
(iv) 900,000 shares shall be designated as Class C Redeemable Preferred Stock
(the “Class
C Preferred Stock” and together with the Class A Preferred Stock
and Class B Preferred Stock, the “Dividend Preferred Stock”);  and
(v) 240,000 shares shall be designated as Class D Preferred Stock (the “Class D
Preferred Stock” and together with the Class A Preferred Stock,
Class B Preferred Stock and Class C Preferred Stock, the “Preferred Stock”).  The Corporation shall have the authority to
issue fractional shares.


 


B.                                     Rights,
Preferences, Privileges and Restrictions of Preferred Stock.


 


(1)                                  General.  Except as otherwise provided in this Section
B of Article Fourth or as otherwise required by applicable law, all shares of a
particular class of Preferred Stock shall be identical in all respects and
shall entitle the holders thereof to the same rights, powers, preferences and
privileges, subject to the same qualifications, limitations, and restrictions.


 


(2)                                  Dividends.


 


(a)                                  Right
to Receive Preferential Dividends. When and as declared by the
Corporation’s Board of Directors (the “Board of Directors”) and to the
extent permitted under the General Corporation Law of the State of Delaware
(the “DGCL”),
the Corporation shall pay preferential dividends (the “Preferential Dividends”)
to the holders of the Preferred Stock as provided in this Section 2(a) and
Sections 2(b) and 2(c) below.  Such
dividends shall accrue on each share of Dividend Preferred Stock, until paid,
on a daily basis at a rate equal to 8.0% per annum on the sum of (x) the Stated
Value of such share and (y) the aggregate amount of all dividends that have
accumulated with respect to such share in accordance with Section 2(b) below,
from and including the Date of Issuance of such share to and including the
earlier to occur of (i) the date on which such share’s Liquidation Amount (as
described in Section 3 below) is paid to the holder thereof, and (ii) the
date on which such share is redeemed as provided herein.  Such dividends shall accrue whether or not
they have been declared and whether or not there are profits, surplus or other
funds of the Corporation legally available for the payment of dividends.  Such dividends (to the extent declared)
shall be payable in cash, quarterly in arrears, on the last day of March, June,
September and December of each year beginning September 30, 2002, and if such
date is not a Business Day, then on the next succeeding Business Day (the “Dividend
Reference Dates”).  As used herein,
the term “Stated
Value” shall mean (i) $3,000 per share in the case of the Class
A Preferred Stock, and (ii) $100 per share in the case of the Class B Preferred
Stock and the Class C Preferred Stock, in each case subject to adjustment to
reflect any stock split, stock dividend, reclassification, recapitalization or
other transaction having a similar effect. 
The date on which the Corporation initially issues any share of
Preferred Stock shall be deemed to be its “Date of Issuance” regardless of
the number of times transfers of such share are made on the stock records
maintained by or for the


 


2

















 


Corporation and
regardless of the number of certificates which may be issued to evidence such
share.


 


(b)                                 Accumulation
of Accrued and Unpaid Dividends. 
For purposes of clarity, to the extent not paid on a Dividend Reference
Date, all dividends which have accrued pursuant to Section 2(a) above on each
share of Preferred Stock shall be accumulated and shall remain accumulated
dividends with respect to such share until paid to the holder thereof.  As used herein, the term “Unpaid
Dividends” shall mean, with respect to any share of Dividend
Preferred Stock as of any date of determination, the aggregate amount of all
accrued and unpaid dividends thereon (if any), including all dividends which
have accumulated thereon pursuant to this Section 2(b), from the Date of
Issuance of such share to and including such date of determination.


 


(c)                                  Distribution
of Partial Dividend Payments. 
Except as otherwise provided herein, if at any time the Corporation pays
less than the total amount of dividends then accrued pursuant to Section 2(a)
above with respect to any class or series of Dividend Preferred Stock, such
payment shall be distributed pro rata among the holders thereof based
upon the aggregate Unpaid Dividends on such shares held by each such holder.


 


(d)                                 Participating
Dividend.  Subject to Section 2(e)
below, in the event that the Corporation declares or pays any dividends upon
the Common Stock (other than dividends payable in additional shares of Common
Stock), the Corporation shall also declare and pay to the holders of any
outstanding shares of Class B Preferred Stock at the same time that it declares
and pays such dividends to the holders of the Common Stock, the dividends which
would have been declared and paid with respect to the Common Stock issuable
upon conversion of such Class B Preferred Stock had all of the outstanding
Class B Preferred Stock been converted immediately prior to the record date for
such dividend, or if no record date is fixed, the date as of which the record
holders of Common Stock entitled to such dividends are to be determined.


 


(e)                                  Dividend
Preference.  The Preferential
Dividends on the Dividend Preferred Stock shall be payable before any dividends
or distributions or other payments shall be paid or set aside for payment in
respect of any Junior Stock (other than dividends payable in additional shares
of Common Stock).  The term “Junior
Stock” shall mean (i) with respect to the Class A Preferred
Stock, any other class or series of capital stock of the Corporation, (ii) with
respect to the Class B Preferred Stock and the Class C Preferred Stock, any
other class or series of capital stock of the Corporation other than the Class
A Preferred Stock, and (iii) with respect to the Class D Preferred Stock, any
other class or series of capital stock of the Corporation other than the Class
A Preferred Stock, Class B Preferred Stock or Class C Preferred Stock.  If at any time the Preferential Dividends on
the outstanding shares of the Dividend Preferred Stock at the rate set forth
herein shall not have been paid or declared and set apart for payment with
respect to all preceding and current periods, the amount of the deficiency
shall be fully paid or declared and set apart for payment, before any dividend,
distribution or payment shall be declared or paid upon or set apart for the
shares of any other class or series of Junior Stock.


 


3

















 


(3)                                  Liquidation;
Sale of the Corporation.


 


(a)                                  Liquidation.  Upon any liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary (a “Liquidation
Event”), then the assets of the Corporation that are legally
available for distribution to the Corporation’s stockholders shall be paid as
follows:


 


(i)                                     first,
to the holders of Class A Preferred Stock pro rata based on their relative aggregate
Class A Liquidation Amount, as defined below, until such holders receive a
liquidation payment in respect of each share of Class A Preferred Stock equal
to the sum of (x) the Stated Value of such share and (y) an amount equal to all
Unpaid Dividends on such share (such sum, the “Class A Liquidation Amount”);


 


(ii)                                  second,
to the holders of Class B Preferred Stock pro rata based on their relative aggregate
Class B Liquidation Amount, as defined below, until such holders receive a
liquidation payment in respect of each share of Class B Preferred Stock equal
to the sum (x) the Stated Value of such share, (y) an amount equal to all
Unpaid Dividends on such share, and (z) the Preference Amount (as defined
below) payable in respect of such share as of the date of the applicable
Liquidation Event (such sum, the “Class B Liquidation Amount”);


 


(iii)                               third,
to the holders of Class C Preferred Stock pro rata based on their relative aggregate
Class C Liquidation Amount, as defined below, until such holders receive a
liquidation payment in respect of each share of Class C Preferred Stock equal
to the sum of (x) the Stated Value of such share and (y) an amount equal to all
Unpaid Dividends on such share (the “Class C Liquidation Amount”);


 


(iv)                              fourth,
to the holders of Class D Preferred Stock pro rata based on their relative aggregate
Class D Liquidation Amount, as defined below, until such holders receive a
liquidation payment in respect of each share of Class D Preferred Stock equal
to the Preference Amount (as defined below) payable in respect of such share as
of the date of the applicable Liquidation Event (the “Class D Liquidation Amount”) (the
aggregate amount of the Class A Liquidation Amount, the Class B Liquidation
Amount, the Class C Liquidation Amount and the Class D Liquidation Amount for
all outstanding shares of Preferred Stock as of any date of determination shall
be referred to herein as the “Preferred Stock Liquidation Preference”);
and


 


(v)                                 fifth,
to the holders of the Common Stock pro rata based on the number of shares of
Common Stock held by such holders determined on a fully diluted,
as-if-converted basis (provided, that any amount payable pursuant
to this clause (v) to a holder of options or warrants that are convertible into
or exerciseable for shares of Common Stock shall be adjusted to reflect the
payment by such holder of the aggregate exercise price of such options or
warrants).


 


(b)                                 Sale
of the Corporation.  In connection
with any: (i) consolidation or merger of the Corporation into or with any other
entity or entities which results in the exchange of outstanding shares of the
Corporation for securities or other consideration


 


4

















 


issued or paid or caused
to be issued or paid by any such entity or affiliate thereof (except a
consolidation or merger into a subsidiary or merger in which the Corporation is
the surviving corporation and the holders of the Corporation’s voting stock
outstanding immediately prior to the transaction hold a majority of the voting
stock of the Corporation outstanding immediately following the transaction);
(ii) sale or transfer by the Corporation of all or substantially all its assets
(it being understood that, in addition to and not in limitation of applicable
law, any sale or series of related sales of assets representing 60% or more of
the (A) fair market value of the assets, (B) revenues or (C) earnings before
interest, taxes, depreciation and amortization of the Corporation and its
subsidiaries taken as a whole shall constitute a sale of “all or substantially
all” of the Corporation’s assets for purposes hereof); (iii) sale of a majority
of the outstanding Common Stock in a single transaction or a series of related
transactions; or (iv) sale of less than a majority of the outstanding Common
Stock in a single transaction or a series of related transactions where after
giving effect to such sale or series of sales more than a majority of
outstanding voting power of the Corporation would be held by individuals or
entities other than stockholders of the Corporation immediately before such
event or the first of such series of events (each a “Sale of the Corporation”),
the consideration to be paid in connection with such transaction shall be
allocated among the holders of Preferred Stock and Common Stock such that the
holders thereof receive the amounts to which they would be entitled pursuant to
Section 3(a) above as if such sale of the Company were a “Liquidation
Event.”  If any Sale of the Corporation
does not involve the sale of all of the Corporation’s assets or of all of the
outstanding capital stock of the Corporation, then the provisions hereof shall
also apply in the case of any subsequent sale of the Corporation.  The Corporation shall not approve, adopt or
enter into any agreement or arrangement relating to a Sale of the Corporation
(or amend or modify any such agreement) if such agreement or arrangement (or the
effect of any such amendment or modification thereto) does not allocate the
consideration to be paid in connection with such transaction in accordance with
the immediately preceding sentence.


 


(c)                                  Notice.  The Corporation shall provide written notice
of any Liquidation Event or Sale of the Corporation, stating a payment date and
the place where said payments shall be made, to the holders of record of
Preferred Stock by mail, postage prepaid, or by telex to non-U.S. residents,
not less than 10 days prior to the payment date stated therein, such notice to
be addressed to each such holder at its address as shown by the records of the
Corporation.  Any holder of Preferred
Stock may at any time waive its right to receive any such notice by providing
the Corporation with written notice thereof.


 


(d)                                 Liquidation
Payments.  If the assets and funds
of the Corporation available for distribution to the holders of the Preferred
Stock upon any Liquidation Event shall be insufficient to permit the payment to
holders of the Preferred Stock the full Preferred Stock Liquidation Preference,
the holders of each class of Preferred Stock shall share ratably (and ratably
as to cash, in-kind or other distributions) in any distribution of assets or
funds of the Corporation in proportion to the full respective Class A Liquidation
Amount, Class B Liquidation Amount, Class C Liquidation Amount and Class D
Liquidation Amount to which they are entitled; and the holders of the Preferred
Stock shall retain their preferential rights stated herein with respect to any
subsequent distribution of the Corporation’s assets and funds.


 


5

















 


(e)                                  Certain
Definitions.  As used herein, the
following terms shall have the following meanings:


 


(i)                                     “Applicable
Percentage” means, for purposes of determining Net Equity Value
during the period of time set forth in the following table under the heading
“Time of Determination,” the percentage set forth in the following table
opposite such period of time under the heading “Applicable Percentage”:


 




	
  YEAR OF DETERMINATION

  	
   

  	
  APPLICABLE

  PERCENTAGE

  
	
  Prior
  to July 29, 2003

  	
   

  	
  20%

  
	
   

  	
   

  	
   

  
	
  From
  and after July 29, 2003 but prior to July 29, 2004

  	
   

  	
  40%

  
	
   

  	
   

  	
   

  
	
  From
  and after July 29, 2004 but prior to July 29, 2005

  	
   

  	
  60%

  
	
   

  	
   

  	
   

  
	
  From
  and after July 29, 2005 but prior to July 29, 2006

  	
   

  	
  80%

  
	
   

  	
   

  	
   

  
	
  From
  and after July 29, 2006 but prior to July 29, 2007

  	
   

  	
  100%

  
	
   

  	
   

  	
   

  
	
  From
  and after July 29, 2007

  	
   

  	
  120%

  






 


(ii)                                  “Funded
Debt” shall mean, as of any date of determination and always
without duplication, all indebtedness of the Corporation or its subsidiaries
for borrowed money evidenced by notes, bonds, debentures or similar evidences
of indebtedness.


 


(iii)                               “Preference
Amount” shall mean, with respect to each share of Class B
Preferred Stock and each share of Class D Preferred Stock (as the case may be)
as of any date of determination, the number computed by multiplying (x) the
Applicable Percentage as of such date by (y) the number computed by dividing
(A) the sum of (i) .0254 multiplied by the Net Equity Value determined
as of such date plus (ii) $6,800,000 by (B) 240,000 (subject to
adjustment to reflect any stock split, stock dividend, reclassification,
recapitalization or other transaction having a similar effect)


 


(iv)                              “Net
Equity Value” means, as of any date of determination, the
“enterprise value” of the Corporation and its subsidiaries (determined as
described below) less Funded Debt, in each case as of such date.  For purposes of the definition of Net Equity
Value, the “enterprise value” of the Corporation and its subsidiaries shall
equal (i) in the case of any Liquidation Event other than a Sale of the
Corporation, the amount jointly


 


6

















 


determined by the Board
of Directors and the holders of a majority of the outstanding shares of Class B
Preferred Stock and shares of Class D Preferred Stock (taken together as a
single class), each acting in good faith, and (ii) in the case of a Sale of the
Corporation, the aggregate consideration payable in such transaction plus
the amount of cash and cash equivalents that would be required under generally
accepted accounting principles to be recorded on a consolidated balance sheet
of the Corporation and its subsidiaries prepared as of the applicable date of
determination.  In the case of clause
(i) above, if the Board of Directors and the holders of the Series B Preferred
Stock and Series D Preferred Stock are unable to reach agreement on the
determination of “enterprise value” within a reasonable amount of time, such
determination shall be made by a nationally-recognized independent appraiser
experienced in valuing securities.  Such
appraiser shall be jointly selected by the Corporation and the holders of a
majority of the outstanding shares of Class B Preferred Stock.  The determination of such appraiser shall be
final and binding upon the Corporation and the holders of the Class B Preferred
Stock, and the fees and expenses of such appraiser shall be borne by the
Corporation.


 


(4)                                  Conversion
of Class B Preferred Stock.


 


(a)                                  Conversion
Procedure.


 


(i)                                     Subject
to the terms of this Section 4, at any time and from time to time any holder of
Class B Preferred Stock may convert all or any portion of the Class B Preferred
Stock (including any fraction of a Class B Share) held by such holder into:


 


(x) a number of shares of
Class C Preferred Stock computed by multiplying the number of Class B Shares to
be converted by the sum of (A) the Stated Value of such shares and (B) the
amount of all Unpaid Dividends thereon as of such time and dividing the result
by the Stated Value of the Class C Preferred Stock,


 


(y) one (1) share of
Class D Preferred Stock (subject to adjustment to reflect any stock split,
stock dividend, reclassification, recapitalization or other transaction having
a similar effect) for each Class B Share being converted; and


 


(z) a number of shares of
Class A Common Stock computed by multiplying the number of Class B Shares to be
converted by the Stated Value of the Class B Preferred Stock and dividing the
result by the Conversion Price in effect immediately prior to such
conversion.  The Conversion Price shall
initially be $32.49576 and shall be subject to adjustment pursuant to this
Section 4.


 


(ii)                                  Except
as otherwise provided herein, each conversion of Class B Preferred Stock shall
be deemed to have been effected as of the close of business on the date on
which the certificate or certificates representing the Class B Preferred Stock
to be converted have been surrendered for conversion at the principal office of
the Corporation.  At the time any such
conversion has been effected, the rights of the holder of the Shares converted
as a holder of Class B Preferred Stock shall cease and the Person or Persons in
whose name or names any certificate or certificates for shares of Class C
Preferred Stock, Class D Preferred Stock and Class A Common Stock are to be
issued upon such conversion shall be


 


7

















 


deemed to have become the
holder or holders of record of the shares of Class C Preferred Stock, Class D
Preferred Stock and Class A Common Stock represented thereby.


 


(iii)                               The
conversion rights of any Class B Share subject to redemption or exchange
hereunder shall terminate on the date of redemption for such Class B Share
unless the Corporation has failed to pay to the holder thereof the Redemption
Price for such Class B Share.


 


(iv)                              Notwithstanding
any other provision hereof, if a conversion of Class B Preferred Stock is to be
made in connection with an Organic Change, a Sale of the Corporation or such
other transaction affecting the Corporation, the conversion of any Class B
Share may, at the election of the holder thereof, be conditioned upon the
consummation of such transaction, in which case such conversion shall not be
deemed to be effective until such transaction has been consummated.


 


(v)                                 As
soon as possible after a conversion has been effected (but in any event within
three (3) business days), the Corporation shall deliver to the converting
holder:


 


(A)                              a
certificate or certificates representing the number of shares of Class C
Preferred Stock, Class D Preferred Stock and Class A Common Stock issuable by
reason of such conversion in such name or names and such denomination or
denominations as the converting holder has specified; and


 


(B)                                a
certificate representing any shares of Class B Preferred Stock which were
represented by the certificate or certificates delivered to the Corporation in
connection with such conversion but which were not converted.


 


(vi)                              The
issuance of certificates for shares of Class C Preferred Stock, Class D
Preferred Stock and Class A Common Stock upon conversion of Class B Preferred
Stock shall be made without charge to the holders of such Class B Preferred
Stock for any issuance tax in respect thereof if issued in the name of such
holder or other cost incurred by the Corporation in connection with such
conversion and the related issuance of shares of Class C Preferred Stock, Class
D Preferred Stock and Class A Common Stock. 
Upon conversion of each Class B Share, the Corporation shall take all
such actions as are necessary in order to insure that the Class C Preferred
Stock, Class D Preferred Stock and Class A Common Stock issuable with respect
to such conversion shall be validly issued, fully paid and nonassessable, free
and clear of all taxes, liens, charges and encumbrances with respect to the
issuance thereof.


 


(vii)                           The
Corporation shall not close its books against the transfer of Class B Preferred
Stock or of any Class C Preferred Stock, Class D Preferred Stock and Class A
Common Stock issued or issuable upon conversion of Class B Preferred Stock in
any manner which interferes with the timely conversion of Class B Preferred
Stock.  The Corporation shall assist and
cooperate with any holder of Class B Shares required to make any


 


8

















 


governmental filings or
obtain any governmental approval prior to or in connection with any conversion
of Class B Shares hereunder (including, without limitation, making any filings
required to be made by the Corporation).


 


(viii)                        The
Corporation shall at all times reserve and keep available out of its authorized
but unissued shares of Class C Preferred Stock, Class D Preferred Stock and
Class A Common Stock, solely for the purpose of issuance upon the conversion of
the Class B Preferred Stock, such number of shares of Class C Preferred Stock,
Class D Preferred Stock and Class A Common Stock issuable upon the conversion
of all outstanding Class B Preferred Stock. 
All shares of Class C Preferred Stock, Class D Preferred Stock and Class
A Common Stock which are so issuable shall, when issued, be duly and validly
issued, fully paid and nonassessable and free from all taxes, liens and
charges.  The Corporation shall take all
such actions as may be necessary to assure that all such shares of Class C
Preferred Stock, Class D Preferred Stock and Class A Common Stock may be so
issued without violation of any applicable law or governmental regulation or
any requirements of any domestic securities exchange upon which shares of Class
A Common Stock may be listed (except for official notice of issuance which
shall be immediately delivered by the Corporation upon each such
issuance).  The Corporation shall not
take any action which would cause the number of authorized but unissued shares
of Class C Preferred Stock, Class D Preferred Stock and Class A Common Stock to
be less than the number of such shares required to be reserved hereunder for
issuance upon conversion of the Class B Preferred Stock.


 


(ix)                                If
the shares of Class C Preferred Stock or Class A Common Stock issuable by
reason of conversion of Class B Preferred Stock are convertible into or
exchangeable for any other stock or securities of the Corporation, the
Corporation shall, at the converting holder’s option, upon surrender of the
Class B Shares to be converted by such holder as provided herein together with
any notice, statement or payment required to effect such conversion or exchange
of Class C Preferred Stock or Class A Common Stock, deliver to such holder or
as otherwise specified by such holder a certificate or certificates
representing the stock or securities into which the shares of Class C Preferred
Stock or Class A Common Stock issuable by reason of such conversion are so
convertible or exchangeable, registered in such name or names and in such
denomination or denominations as such holder has specified.


 


(b)                                 Conversion
Price.


 


(i)                                     In
order to prevent dilution of the conversion rights granted under this
Section 4, the Conversion Price shall be subject to adjustment from time
to time pursuant to this Section 4(b).


 


(ii)                                  If
and whenever after the original Date of Issuance of the Class B Preferred
Stock, the Corporation issues or sells, or in accordance with Section 4(c) is
deemed to have issued or sold, any share of Common Stock for a consideration
per share less than $30.00 (subject to adjustment to reflect any stock split,
stock dividend, reclassification, recapitalization or other transaction having
a similar effect), then immediately upon such issue or sale or deemed issue or
sale, the Conversion Price shall be reduced to the Conversion Price


 


9

















 


determined by dividing
(x) the sum of (i) the product determined by multiplying the Conversion Price
in effect immediately prior to such issuance or sale by the number of shares of
Common Stock Deemed Outstanding immediately prior to such issuance or sale,
plus (ii) the consideration, if any, received by the Corporation upon such
issuance or sale, by (y) the number of shares of Common Stock Deemed
Outstanding immediately after such issuance or sale.


 


(iii)                               Notwithstanding
the foregoing, there shall be no adjustment to the Conversion Price hereunder
with respect to a Permitted Issuance.


 


(c)                                  Effect
on Conversion Price of Certain Events. 
For purposes of determining the adjusted Conversion Price under Section
4(b), the following shall be applicable:


 


(i)                                     Issuance
of Rights or Options.  If the
Corporation in any manner grants or sells any Options and the price per share
for which Common Stock is issuable upon the exercise of such Options, or upon
conversion or exchange of any Convertible Securities issuable upon exercise of
such Options, is less than $30.00 (subject to adjustment to reflect any stock
split, stock dividend, reclassification, recapitalization or other transaction
having a similar effect), then the total maximum number of shares of Common
Stock issuable upon the exercise of such Options or upon conversion or exchange
of the total maximum amount of such Convertible Securities issuable upon the
exercise of such Options shall be deemed to be outstanding and to have been
issued and sold by the Corporation at the time of the granting or sale of such
Options for such price per share.  For
purposes of this paragraph, the “price per share for which Common Stock is
issuable” shall be determined by dividing (A) the total amount, if any,
received or receivable by the Corporation as consideration for the granting or
sale of such Options, plus the minimum aggregate amount of additional
consideration payable to the Corporation upon exercise of all such Options,
plus in the case of such Options which relate to Convertible Securities, the
minimum aggregate amount of additional consideration, if any, payable to the
Corporation upon the issuance or sale of such Convertible Securities and the
conversion or exchange thereof, by (B) the total maximum number of shares of
Common Stock issuable upon the exercise of such Options or upon the conversion
or exchange of all such Convertible Securities issuable upon the exercise of
such Options.  No further adjustment of
the Conversion Price shall be made when Convertible Securities are actually
issued upon the exercise of such Options or when Common Stock is actually
issued upon the exercise of such Options or the conversion or exchange of such
Convertible Securities.


 


(ii)                                  Issuance
of Convertible Securities.  If the
Corporation in any manner issues or sells any Convertible Securities and the
price per share for which Common Stock is issuable upon conversion or exchange
thereof is less than $30.00 (subject to adjustment to reflect any stock split,
stock dividend, reclassification, recapitalization or other transaction having
a similar effect), then the maximum number of shares of Common Stock issuable
upon conversion or exchange of such Convertible Securities shall be deemed to
be outstanding and to have been issued and sold by the Corporation at the time
of the issuance or sale of such Convertible Securities for such price per
share.  For the purposes of this
paragraph, the “price per share for which Common Stock is issuable” shall be
determined by dividing (A)


 


10

















 


the total amount received
or receivable by the Corporation as consideration for the issue or sale of such
Convertible Securities, plus the minimum aggregate amount of additional
consideration, if any, payable to the Corporation upon the conversion or
exchange thereof, by (B) the total maximum number of shares of Common Stock
issuable upon the conversion or exchange of all such Convertible
Securities.  No further adjustment of
the Conversion Price shall be made when Common Stock is actually issued upon
the conversion or exchange of such Convertible Securities, and if any such
issue or sale of such Convertible Securities is made upon exercise of any
Options for which adjustments of the Conversion Price had been or are to be
made pursuant to other provisions of this Section 4, no further adjustment of
the Conversion Price shall be made by reason of such issue or sale.


 


(iii)                               Change
in Option Price or Conversion Rate. 
If, in the case of Options and Convertible Securities issued on or after
the Original Date of Issuance, the purchase price provided for in any such
Options, the additional consideration, if any, payable upon the conversion or
exchange of any such Convertible Securities or the rate at which any such
Convertible Securities are convertible into or exchangeable for Common Stock
changes at any time, the Conversion Price in effect at the time of such change
shall be immediately adjusted to the Conversion Price which would have been in
effect at such time had such Options or Convertible Securities still
outstanding provided for such changed purchase price, additional consideration
or conversion rate, as the case may be, at the time initially granted, issued
or sold; provided,
that if such adjustment would result in an increase of the Conversion Price
then in effect, such adjustment shall not be effective until 30 days after
written notice thereof has been given by the Corporation to all holders of the
Class B Preferred Stock.  For purposes
of Section 4(c), if the terms of any Option or Convertible Security which was
outstanding as of the original Date of Issuance of the Class B Preferred Stock
are changed in the manner described in the immediately preceding sentence, then
such Option or Convertible Security and the Common Stock deemed issuable upon
exercise, conversion or exchange thereof shall be deemed to have been issued as
of the date of such change; provided, that no such change shall at any
time cause the Conversion Price hereunder to be increased.


 


(iv)                              Treatment
of Expired Options and Unexercised Convertible Securities.  Upon the expiration of any Option or the
termination of any right to convert or exchange any Convertible Security
without the exercise of any such Option or right, the Conversion Price then in
effect hereunder shall be adjusted immediately to the Conversion Price which
would have been in effect at the time of such expiration or termination had
such Option or Convertible Security, to the extent outstanding immediately
prior to such expiration or termination, never been issued; provided,
that if such expiration or termination would result in an increase in the
Conversion Price then in effect, such increase shall not be effective until 30
days after written notice thereof has been given to all holders of the Class B
Preferred Stock.  For purposes of
Section 4(c), the expiration or termination of any Option or Convertible
Security which was outstanding as of the original Date of Issuance of the Class
B Preferred Stock shall not cause the Conversion Price hereunder to be adjusted
unless, and only to the extent that, a change in the terms of such Option or
Convertible Security caused it to be deemed to have been issued after the
original Date of Issuance of the Class B Preferred Stock.


 


11

















 


(v)                                 Calculation
of Consideration Received.  If any
Common Stock, Option or Convertible Security is issued or sold or deemed to
have been issued or sold for cash, the consideration received therefor shall be
deemed to be the amount received by the Corporation therefor (net of discounts,
commissions and related expenses).  If
any Common Stock, Option or Convertible Security is issued or sold for a
consideration other than cash, the amount of the consideration other than cash
received by the Corporation shall be the fair value of such consideration,
except where such consideration consists of securities, in which case the
amount of consideration received by the Corporation shall be the Market Price
thereof as of the date of receipt.  If
any Common Stock, Option or Convertible Security is issued to the owners of the
non-surviving entity in connection with any merger in which the Corporation is
the surviving corporation, the amount of consideration therefor shall be deemed
to be the fair value of such portion of the net assets and business of the
non-surviving entity as is attributable to such Common Stock, Option or
Convertible Security, as the case may be. 
The fair value of any consideration other than cash and securities shall
be determined by the Board of Directors in good faith; provided, that if the
holders of a majority of the outstanding shares of Class B Preferred Stock
disagree with such determination, the fair value of such consideration shall be
determined by an independent appraiser experienced in valuing such type of
consideration jointly selected by the Corporation and the holders of a majority
of the outstanding shares of Class B Preferred Stock.  The determination of such appraiser shall be final and binding
upon the parties, and the fees and expenses of such appraiser shall be borne by
the Corporation.


 


(vi)                              Integrated
Transactions.  In case any Option is
issued in connection with the issue or sale of other securities of the
Corporation, together comprising one integrated transaction in which no
specific consideration is allocated to such Option by the parties thereto, the
consideration for the Option shall be the Market Price thereof.


 


(vii)                           Treasury
Shares.  The number of shares of
Common Stock outstanding at any given time shall not include shares owned or
held by or for the account of the Corporation or any Subsidiary, and the
disposition of any shares so owned or held shall be considered an issue or sale
of Common Stock.


 


(viii)                        Record
Date.  If the Corporation takes a
record of the holders of Common Stock for the purpose of entitling them (a) to
receive a dividend or other distribution payable in Common Stock, Options or in
Convertible Securities or (b) to subscribe for or purchase Common Stock,
Options or Convertible Securities, then such record date shall be deemed to be
the date of the issue or sale of the shares of Common Stock deemed to have been
issued or sold upon the declaration of such dividend or upon the making of such
other distribution or the date of the granting of such right of subscription or
purchase, as the case may be.


 


(d)                                 Subdivision
or Combination of Common Stock.  If
the Corporation at any time subdivides (by any stock split, stock dividend,
recapitalization or otherwise) one or more classes of its outstanding shares of
Common Stock into a greater number of shares, the Conversion Price in effect
immediately prior to such subdivision shall be proportionately reduced (and any
other appropriate actions shall be taken by the Corporation) so


 


12

















 


that the holder of any
share of Class B Preferred Stock thereafter surrendered for conversion (without
actually requiring such Class B Preferred Stock to be so converted and without
regard to any limitation on conversion set forth herein or otherwise) shall be
entitled to receive, in addition to the number of shares of Class C Preferred
Stock computed in accordance with Section 4(a), the number of shares of Common
Stock or other securities of the Corporation that such holder would have owned
or would have been entitled to receive upon or by reason of the events
described above, had such share of Class B Preferred Stock been converted
(without actually requiring such Class B Preferred Stock to be so converted and
without regard to any limitation on conversion set forth herein or otherwise)
immediately prior to the occurrence of such event.  If the Corporation at any time combines (by reverse stock split
or otherwise) one or more classes of its outstanding shares of Common Stock
into a smaller number of shares, the Conversion Price in effect immediately
prior to such combination shall be proportionately increased (and any other
appropriate actions shall be taken by the Corporation) so that the holder of
any share of Class B Preferred Stock thereafter surrendered for conversion
(without actually requiring such Class B Preferred Stock to be so converted and
without regard to any limitation on conversion set forth herein or otherwise)
shall be entitled to receive, in addition to the number of shares of Class C
Preferred Stock computed in accordance with Section 4(a), the number of shares
of Class A Common Stock or other securities of the Corporation that such holder
would have owned or would have been entitled to receive upon or by reason of
the events described above, had such share of Class B Preferred Stock been
converted (without actually requiring such Class B Preferred Stock to be so
converted and without regard to any limitation on conversion set forth herein
or otherwise) immediately prior to the occurrence of such event.


 


(e)                                  Reorganization,
Reclassification, Consolidation, Merger or Sale.  Any recapitalization, reorganization, reclassification,
consolidation, merger, sale of all or substantially all of the Corporation’s
assets or other transaction, in each case which is effected in such a manner
that the holders of Common Stock are entitled to receive (either directly or
upon subsequent liquidation) stock, securities or assets with respect to or in
exchange for Common Stock, is referred to herein as an “Organic Change”.  Prior to the consummation of any Organic
Change (other than an Organic Change that is also a Sale of the Corporation),
the Corporation shall make appropriate provisions (in form and substance
satisfactory to the holders of a majority of the Class B Preferred Stock then
outstanding) to insure that each of the holders of Class B Preferred Stock
shall thereafter have the right to acquire and receive, in lieu of or in
addition to (as the case may be) the shares of Class C Preferred Stock, Class D
Preferred Stock and Class A Common Stock immediately theretofore acquirable and
receivable upon the conversion of such holder’s Class B Preferred Stock, such
shares of stock, securities or assets as such holder would have received in
connection with such Organic Change if such holder had converted its Class B
Preferred Stock (without actually requiring such Class B Preferred Stock to be
so converted and without regard to any limitation on conversion set forth
herein or otherwise) immediately prior to such Organic Change.  In each such case, the Corporation shall
also make appropriate provisions (in form and substance satisfactory to the
holders of a majority of the Class B Preferred Stock then outstanding) to
insure that the provisions of this Section 4 shall thereafter be applicable to
the Class B Preferred Stock (including, in the case of any such consolidation,
merger or sale in which the successor entity or purchasing entity is other than
the Corporation, an immediate adjustment of the Conversion Price to the value
for the Common Stock reflected by the terms of


 


13

















 


such consolidation,
merger or sale, and a corresponding immediate adjustment in the number of
shares of Common Stock acquirable and receivable upon conversion of Class B
Preferred Stock, if the value so reflected is less than $30.00 (subject to
adjustment to reflect any stock split, stock demand, reclassification,
recapitalization or other transaction having a similar effect).  The Corporation shall not effect any such
consolidation, merger or sale, unless prior to the consummation thereof, the
successor entity (if other than the Corporation) resulting from consolidation
or merger or the entity purchasing such assets assumes by written instrument
(in form and substance satisfactory to the holders of a majority of the Class B
Preferred Stock then outstanding), the obligation to deliver to each such
holder such shares of stock, securities or assets as, in accordance with the
foregoing provisions, such holder may be entitled to acquire.


 


(f)                                    Certain
Distributions.  In case the
Corporation shall at any time or from time to time, prior to conversion of
shares of Class B Preferred Stock, distribute to all holders of shares of the
Common Stock (including any such distribution made in connection with a merger
or consolidation in which the Corporation is the resulting or surviving Person
and the Common Stock is not changed or exchanged), cash, evidences of
indebtedness of the Corporation or another issuer, securities of the
Corporation or another issuer or other assets (excluding cash dividends in which
holders of Class B Shares participate, in the manner provided in Section 2(d),
dividends payable in shares of Common Stock for which adjustment is made under
another paragraph of this Section 4 and any distribution in connection with a
Permitted Issuance), or rights or warrants to subscribe for or purchase of any
of the foregoing, then, and in each such case, the Conversion Price then in
effect shall be adjusted (and any other appropriate actions shall be taken by
the Corporation) by multiplying the Conversion Price in effect immediately
prior to the date of such distribution by a fraction (x) the numerator of which
shall be the Market Price of the Common Stock immediately prior to the date of
distribution less the then fair market value (as determined by the Board of
Directors in the exercise of their fiduciary duties) of the portion of the
cash, evidences of indebtedness, securities or other assets so distributed or
of such rights or warrants applicable to one share of Common Stock and (y) the
denominator of which shall be the Market Price of the Common Stock immediately
prior to the date of distribution (but such fraction shall not be greater than
one); provided,
however,
that no adjustment shall be made with respect to any distribution of rights or
warrants to subscribe for or purchase securities of the Corporation if the
holder of shares of Class B Preferred Stock would otherwise be entitled to
receive such rights or warrants upon conversion at any time of shares of Class
B Preferred Stock into Class C Preferred Stock and Class A Common Stock.  Such adjustment shall be made whenever any
such distribution is made and shall become effective retroactively to a date
immediately following the close of business on the record date for the
determination of stockholders entitled to receive such distribution.


 


(g)                                 Certain
Events.  If any event occurs of the
type contemplated by the provisions of this Section 4 but not expressly
provided for by such provisions (including, without limitation, the granting of
stock appreciation rights, phantom stock rights or other rights with equity
features), then the Board of Directors shall make an appropriate adjustment in
the Conversion Price so as to protect the rights of the holders of Class B
Preferred Stock; provided, that no such adjustment shall increase the
Conversion Price as


 


14

















 


otherwise determined
pursuant to this Section 4 or decrease the number of shares of Class A Common
Stock issuable upon conversion of each Class B Share.


 


(h)                                 Certain
Definitions.  As used herein, the
following terms shall have the following meanings:


 


(i)                                     “Common
Stock Deemed Outstanding” means, at any given time, the number
of shares of Common Stock actually outstanding at such time, plus the number of
shares of Common Stock deemed to be outstanding pursuant to Sections 4(c)(i)
and 4(c)(ii) of this Section B of Article Fourth whether or not the Options or
Convertible Securities are actually exercisable at such time, but excluding any
shares of Common Stock.


 


(ii)                                  “Convertible
Securities” means any stock or securities directly or indirectly
convertible into or exchangeable for Common Stock.


 


(iii)                               “Initial
Public Offering” means the first underwritten public offering by
either the Company or any of its subsidiaries of its common stock pursuant to a
registration statement (other than a registration statement on Form S-8 or S-4
or any successor form thereto) that has been filed under the Securities Act of
1933, as amended (the “Act”), and declared effective by
the Securities and Exchange Commission or any similar agency then having
jurisdiction to enforce the Securities Act; provided, however,
that for this purpose any offering under Rule 144A under the Securities Act or
any similar rule or regulation promulgated under the Securities Act shall not
be deemed to be an Initial Public Offering.


 


(iv)                              “Qualified
Public Offering” means an Initial Public Offering in which the
Corporation receives not less than $50 million in net proceeds and the per
share offering price is not less than $90 per share (subject to adjustment to
reflect any stock split, stock dividend, reclassification, recapitalization or
other transaction having a similar effect).


 


(v)                                 “Market
Price” of any security means the average of the closing prices
of such security’s sales on all securities exchanges on which such security may
at the time be listed, or, if there has been no sales on any such exchange on
any day, the average of the highest bid and lowest asked prices on all such
exchanges at the end of such day, or, if on any day such security is not so
listed, the average of the representative bid and asked prices quoted in the
NASDAQ System as of 4:00 P.M., New York time, or, if on any day such security
is not quoted in the NASDAQ System, the average of the highest bid and lowest
asked prices on such day in the domestic over-the-counter market as reported by
the National Quotation Bureau, Incorporated, or any similar successor
organization, in each such case (i) averaged over a period of 20 days
consisting of the day as of which “Market Price” is being determined and the 19
consecutive business days prior to such day, and (ii) averaged on a
volume-weighted basis based on the trading volume for each such business day.  If at any time such security is not listed
on any securities exchange or quoted in the NASDAQ System or the
over-the-counter market, the “Market Price” shall be the fair value thereof
determined by the Board of Directors in good faith; provided, that if the
holders of a majority of the outstanding shares of Class B Preferred Stock
disagree with such determination, such fair value shall be determined by a
nationally-recognized independent appraiser experienced in valuing such type of


 


15

















 


consideration jointly
selected by the Corporation and the holders of a majority of the outstanding
shares of Class B Preferred Stock.  The
determination of such appraiser shall be final and binding upon the Corporation
and the holders of the Class B Preferred Stock, and the fees and expenses of
such appraiser shall be borne by the Corporation.


 


(vi)                              “Options”
means any rights, warrants or options to subscribe for or purchase
Common Stock or Convertible Securities.


 


(vii)                           “Permitted
Issuance” means any sale or issuance or deemed sale or issuance
of Common Stock: (i) issued or issuable upon the exercise, conversion or
exchange of Options or Convertible Securities of the Corporation outstanding on
the date hereof; (ii) issued or issuable in respect of any management equity
plans heretofore or hereafter approved by the Board to purchase Common Stock (provided,
that such Common Stock together with all shares of Common Stock issued or
issuable pursuant to this clause (ii) as to grants made after the date hereof
do not exceed 396,241.5 shares (subject to adjustment to reflect any stock
split, stock dividend, reclassification, recapitalization or other transaction
having a similar effect); and (iii) issued or issuable in connection with a
restructuring, including a cancellation or modification of the terms of any, of
the debt of the Corporation or any of its subsidiaries in which lenders or
owners of debt securities of the Corporation or its subsidiaries receive equity
interests in consideration of or in connection with such restructuring.


 


(i)                                     Mandatory
Conversion.  All outstanding shares
of Class B Preferred Stock shall be automatically converted in accordance with
the provisions of this Section 4 upon the consummation of (i) an Initial Public
Offering, and (ii) an Organic Change (other than an Organic Change which is
also a Sale of the Corporation).  In the
case of any conversion required in connection with (A) an Initial Public
Offering where such Initial Public Offering does not constitute a Qualified
Public Offering or (B) an Organic Change, the Corporation shall not give effect
to such conversion, and any such purported conversion shall be null and void,
if the Corporation does not contemporaneously enter into an agreement providing
the holders of the shares of Class A Common Stock issuable upon conversion of
the Class B Preferred Stock with anti-dilution rights with respect to such
shares of Class A Common Stock that are identical to the anti-dilution
protection provided for in this Section 4.


 


(j)                                     Notices.


 


(i)                                     Immediately
upon any adjustment of the Conversion Price, the Corporation shall give written
notice thereof to all holders of Class B Preferred Stock, setting forth in
reasonable detail and certifying the calculation of such adjustment.


 


(ii)                                  The
Corporation shall give written notice to all holders of Class B Preferred Stock
at least twenty (20) days prior to the date on which the Corporation closes its
books or takes a record (a) with respect to any dividend or distribution upon
Common Stock, (b) with respect to any pro rata subscription offer to holders of
Common Stock, or (c) for determining rights to vote with respect to any Sale of
the Corporation, Organic Change or Liquidation Event.


 


16

















 


(iii)                               The
Corporation shall also give written notice to the holders of Class B Preferred
Stock at least twenty (20) days prior to the date on which any Initial Public
Offering, Organic Change or Sale of the Corporation shall take place.


 


(5)                                  Exchange
of Class B Preferred Stock.


 


(a)                                  Exchange.  At any time and from time to time the
Corporation may demand that the holders of Class B Shares surrender to the
Corporation all or any lesser portion of the outstanding Class B Preferred
Stock, and in exchange for each surrendered Class B Share, the Corporation
shall promptly issue to such holder the number of shares of Class C Preferred
Stock, Class D Preferred Stock and Class A Common Stock into which such Class B
Share is then convertible in accordance with Section 4 of this Section B of
Article Fourth (such number of shares of Class C Preferred Stock and Class A
Common Stock, the “Exchange Shares”). 
Any demand by the Corporation for the exchange of Class B Preferred
Stock pursuant to this Section 5 shall be made to the holders of the Class B
Preferred Stock pro rata based upon the number of Class B Shares held by
each such holder and the aggregate number of shares to be exchanged.  The Corporation shall not give effect to any
exchange pursuant to this Section 5, and any such purported exchange shall
be null and void, if the Corporation (i) does not have sufficient legally
available funds to redeem all of the Class C Preferred Stock issuable in
connection with such exchange in accordance with Section 6(b), or (ii) the
Corporation fails to redeem all of such shares of Class C Preferred Stock
in accordance with Section 6(b).


 


(b)                                 Exchange
Procedure.  Not more than 15 days
prior to any exchange of Class B Preferred Stock, the Corporation shall send
written notice (each such notice, an “Exchange Notice”) to each record
holder of Class B Shares, notifying such holder of (i) the exchange to be
effected, specifying the number of shares of Class B Preferred Stock to be
redeemed from each holder, (ii) the aggregate number of Exchange Shares to be
issued to such holder, (iii) the date on which such exchange shall be effected,
and (iv) the place at which the Exchange Shares to be issued to such holder may
be obtained and calling upon such holder to surrender to the Corporation, in
the manner and at the place designated, the certificate or certificates
representing such holder’s Class B Shares to be exchanged.  In case fewer than the total number of Class
B Shares represented by any certificate are exchanged, a new certificate
representing the number of unexchanged Class B Shares shall be issued to the
holder thereof without cost to such holder within three business days after
surrender of the certificate representing the exchanged Class B Shares.


 


(c)                                  Issuance
of Exchange Shares.  The issuance of
certificates for shares of Class C Preferred Stock, Class D Preferred Stock and
Class A Common Stock issuable upon the exchange of Class B Preferred Stock
shall be made without charge to the holders of the Class B Shares for any
issuance tax if issued in the name of such holder in respect thereof or other
cost incurred by the Corporation in connection with such exchange and the
related issuance of shares of Class C Preferred Stock, Class D Preferred Stock
and Class A Common Stock.  Upon the
exchange of each Class B Shares, the Corporation shall take all such actions as
are necessary in order to insure that the Exchange Shares issuable with respect
to such


 


17

















 


conversion shall be
validly issued, fully paid and nonassessable, free and clear of all taxes,
liens, charges and encumbrances with respect to the issuance thereof.


 


(d)                                 Closing
of Books.  The Corporation shall not
close its books against the transfer of Class B Preferred Stock or of any Class
C Preferred Stock, Class D Preferred Stock and Class A Common Stock issued or
issuable upon the exchange of Class B Preferred Stock in any manner which
interferes with the timely exchange of Class B Preferred Stock.  The Corporation shall assist and cooperate
with any holder of Class B Preferred Stock required to make any governmental
filings or obtain any governmental approval prior to or in connection with any
conversion of Shares hereunder (including, without limitation, making any
filings required to be made by the Corporation).


 


(e)                                  Reservation
of Shares.  The Corporation shall at
all times reserve and keep available out of its authorized but unissued shares
of Class C Preferred Stock, Class D Preferred Stock and Class A Common Stock,
solely for the purpose of issuance upon the exchange of the Class B Preferred
Stock such number of shares of Class C Preferred Stock, Class D Preferred Stock
and Class A Common Stock issuable upon the exchange of all outstanding shares
of Class B Preferred Stock.  All shares
of Class C Preferred Stock, Class D Preferred Stock and Class A Common Stock
which are so issuable shall, when issued, be duly and validly issued, fully
paid and nonassessable and free from all taxes, liens and charges.  The Corporation shall take all such actions
as may be necessary to assure that all such shares of Class C Preferred Stock,
Class D Preferred Stock and Class A Common Stock may be so issued without
violation of any applicable law or governmental regulation or any requirements
of any domestic securities exchange upon which shares of Class C Preferred
Stock, Class D Preferred Stock and Class A Common Stock may be listed (except
for official notice of issuance which shall be immediately delivered by the
Corporation upon each such issuance). 
The Corporation shall not take any action which would cause the number
of authorized but unissued shares of Class C Preferred Stock, Class D Preferred
Stock or Class A Common Stock to be less than the number of such shares
required to be reserved hereunder for issuance upon exchange of the Class B
Preferred Stock.


 


(f)                                    Surrendered
Shares.  Any Class B Shares which
are exchanged pursuant to this Section 5 shall be canceled and retired to
authorized but unissued shares and shall not be reissued, sold or transferred.


 


(g)                                 Rights
After Issuance of Exchange Shares. 
Each exchange of Class B Preferred Stock shall be deemed to have been
effected as of the close of business on the date on which the certificate
representing the Class B Shares to be exchanged have been surrendered to the
Corporation for exchange as set forth in the applicable Exchange Notice.  At the time any such exchange has been
effected, the rights of the holders of the Class B Shares as holders of Class B
Preferred Stock shall cease and such holders shall be deemed to have become the
holders of record of the Exchange Shares issued in exchange therefor.  For the avoidance of doubt, dividends shall
accrue on each Class B Share up to the date on which the Exchange Shares
issuable pursuant to this Section 5 are issued.


 


18

















 


(6)                                  Redemptions.


 


(a)                                  Optional
Redemption of Class C Preferred Stock. 
Subject to Section 6(b), at any time and from time to time the
Corporation may redeem all or any lesser portion of the outstanding Class C
Preferred Stock for a per share redemption price equal to the Class C
Liquidation Amount calculated as of the applicable Redemption Date (as defined
in Section 6(c) below).


 


(b)                                 Mandatory
Redemption of Class C Preferred Stock. 
Promptly (but in no event later than the following business day) after
the issuance of shares of Class C Preferred Stock in exchange for Class B
Shares surrendered to the Company in accordance with Section 5(a), the
Corporation shall redeem all of such shares of Class C Preferred Stock for a
per share redemption price equal to the Class C Liquidation Amount calculated
as of the applicable Redemption Date (as defined in Section 6(c) below).


 


(c)                                  Redemption
Procedure.  Not more than 15 days
prior to the date of any redemption of Series C Preferred Stock, the
Corporation shall send written notice to each record holder of shares of Series
C Preferred Stock notifying such holder of (i) the redemption to be effected,
specifying the number of shares of Series C Preferred Stock to be redeemed from
each holder (the “Redemption Shares”), (ii) the aggregate redemption
price required to be paid to such holder under Section 6(a) or 6(b), as
applicable (the “Redemption Price”), and (iii) the date on which such
redemption shall be effected (each such date, a “Redemption Date”),
and calling upon such holder to surrender to the Corporation, in the manner and
at the place designated, the certificate or certificates representing such
holder’s Redemption Shares.  In the case
of any redemption to be effected pursuant to Section 6(b) above, such notice
shall be delivered together with the Exchange Notice delivered to the holders
of Class B Preferred Stock pursuant to Section 5(b), and in such case the
holders of the Class B Preferred Stock to be exchanged shall be deemed,
for purposes of this Section 6(c) only, to be holders of the Class C Preferred
Stock issuable upon the surrender of such Class B Shares.  In case fewer than the total number of
Redemption Shares represented by any certificate are redeemed, a new
certificate representing the number of unredeemed Redemption Shares shall be
issued to the holder thereof without cost to such holder within three business
days after surrender of the certificate representing the redeemed Redemption Shares.


 


(d)                                 Rights
Upon Redemption.  After the payment
in full (in immediately available funds) of the Redemption Price with respect
to any Redemption Share (as the case may be), all rights of the holder of such
Redemption Share shall cease, and the Redemption Share shall not be deemed to
be outstanding.  For the avoidance of
doubt, dividends shall accrue on each share of Class C Preferred Stock up to
the date on which the Redemption Price of such share is paid in full in
immediately available funds.


 


(e)                                  Redeemed
or Otherwise Acquired Shares.  Any
shares of Series C Preferred Stock which are redeemed or otherwise acquired by
the Corporation shall be canceled and retired to authorized but unissued shares
and shall not be reissued, sold or transferred.


 


19

















 


(f)                                    Other
Redemptions or Acquisitions.  The
Corporation shall not be entitled to redeem or otherwise acquire any Class B
Preferred Stock or Class D Preferred Stock. 
Neither the Corporation nor any of its subsidiaries shall redeem or
otherwise acquire any Preferred Stock, except as expressly authorized herein or
pursuant to (i) Section 9.05 of the Stock Purchase Agreement dated as of
November 20, 2000, among the Corporation, Dr. Michael J. Hartnett, Hartnett Family
Investments, L.P. and Whitney Acquisition II, Inc., or (ii) Section 8.05 of the
Preferred Stock Purchase Agreement dated as of the original Date of Issuance of
the Class B Preferred Stock among the Corporation, Roller Bearing Company of
America, Inc., Dr. Michael J. Hartnett and Whitney V, L.P.


 


(7)                                  Voting
Rights.  Except to the extent
required by the General Corporation Law of the State of Delaware, the holders
of outstanding shares of Preferred Stock shall not be entitled to vote on any
matters to be voted on by the Corporation’s stockholders.


 


(8)                                  Protective
Provisions.


 


(a)                                  Without
the prior written consent of the holders of a majority of the then outstanding
Preferred Stock, the Corporation shall not: (i) authorize or issue any shares
of capital stock having liquidation, dividend or distribution rights senior to
or pari
passu with the Class A Preferred Stock; (ii) authorize or issue any
shares of capital stock having liquidation, dividend or distribution rights
senior to the Class B Preferred Stock, the Class C Preferred Stock or the Class
D Preferred Stock (except that the Corporation may issues shares of
Class A Preferred Stock to the extent permitted under the following clause
(iii)); (iii) issue any shares of Class A Preferred Stock other than pursuant
to (A) Section 9.04 of the Stock Purchase Agreement dated as of November 20,
2000, among the Corporation, Dr. Michael J. Hartnett, Hartnett Family
Investments, L.P. and Whitney Acquisition II, Inc., or (B) Section 8.04 of the
Preferred Stock and Warrant Purchase Agreement dated as of the original Date of
Issuance of the Class B Preferred Stock among the Corporation, Roller Bearing
Company of America, Inc., Dr. Michael J. Hartnett and Whitney V, L.P.; (iv)
issue any shares of Class C Preferred Stock or Class D Preferred Stock other
than pursuant to Section 4 or Section 5 of this Section B of Article
Fourth; or (iv) amend, modify or restate the provisions of this Section B of
this Article Fourth in any respect.


 


(b)                                 Prior
to or concurrently with the effectiveness of any Sale of the Corporation or
Liquidation Event, the Board of Directors shall declare and authorize the
payment of all accumulated and accrued and unpaid but not yet accumulated
dividends on the outstanding shares of Preferred Stock.


 


C.                                     Rights
and Privileges of Common Stock. 
Except as otherwise provided herein, all shares of Class A Common Stock
and Class B Common Stock will be identical and will entitle the holder thereof
to the same rights and privileges.


 


(1)                                  General.  The voting, dividend and liquidation rights
of the holders of the Common Stock are subject to and qualified by the rights
of the holders of the Preferred Stock set forth in Section B of Article Fourth.


 


20

















 


(2)                                  Voting
Rights.


 


(a)                                  The
holders of Class A Common Stock will be entitled to one vote per share on all
matters to be voted on by the Corporation’s stockholders.


 


(b)                                 Until
one of the events described in subsections (i) through (iv) below (each, a “Voting
Event”) shall have occurred, the holders of Class B Common Stock
will be entitled to that number of votes per share on all matters to be voted
upon by the Corporation’s stockholders as is required to entitle the holders
thereof, in the aggregate, to fifty-one percent (51%) of the voting power of
the issued and outstanding Common Stock. 
Following the occurrence of a Voting Event, the holders of Class B
Common Stock will be entitled to one vote per share on all matters to be voted
on by the Corporation’s stockholders.


 


(i)                                     The
Corporation (A) shall commence any proceeding under any bankruptcy,
reorganization, arrangement, readjustment of debt, dissolution or liquidation
law or statute of any jurisdiction, whether now or hereafter in effect; or (B)
shall have had any such petition or application filed or any such proceeding
shall have been commenced, against it, in which an adjudication or appointment
is made or order for relief is entered, or which petition, application or
proceeding remains undismissed for a period of 60 days or more;


 


(ii)                                  (A)
Michael J. Hartnett shall (1) die, (2) be discharged from employment
with the Corporation for Cause (as defined in any Employment Agreement between
the Corporation and Michael J. Hartnett (the “Employment Agreement”))
or (3) terminate his Employment Agreement during the stated term thereof
for other than Good Reason (as defined in the Employment Agreement) or (B)
ninety (90) days shall have passed after there shall have occurred a Permanent
Disability with respect to Michael J. Hartnett.  For the purposes hereof, a “Permanent Disability” shall mean any
physical or mental disability that permanently prevents Michael J. Hartnett
from performing the essential functions, taken as a whole, of his position as
Chief Executive Officer of the Corporation and/or of its wholly owned
subsidiaries;


 


(iii)                               At
such time that Michael J. Hartnett and his Permitted Transferees shall have the
power to vote with respect to, or the power to dispose of, less than 50% of the
shares of the Common Stock, on a fully diluted basis (i.e., assuming full
exercise of all such holders’ warrants, options and other rights to purchase
shares of Common Stock), owned by Michael J. Hartnett and Hartnett Family
Investments, L.P. on December 18, 2000 (subject to adjustment to reflect
any stock split, stock dividend, reclassification, recapitalization or other
transaction having a similar effect); and


 


(iv)                              the
first underwritten public offering of equity securities of the Corporation
pursuant to an effective registration statement under the Securities Act of
1933, as amended (the “Act”), for which the Corporation shall
have received not less than $50 million in net proceeds and following which
there is a public market for the securities so offered.


 


21

















 


For the purposes of
subsection (iii), “Permitted Transferee” shall mean, with
respect to any Person, (a) if such Person is an individual, (i) a member of the
Immediate Family of such Person, (ii) a trust or other similar legal entity for
the primary benefit of such Person and/or one or more members of his Immediate
Family, or (iii) a partnership, limited partnership, limited liability company,
corporation or other entity in which such Person alone or together with members
of his Immediate Family possess 100% of the outstanding voting securities, (b)
a Person to whom Securities are Transferred in compliance with Rule 144 under
the Act, so long as Holdings is furnished with evidence reasonably satisfactory
to it that such Transfer complied with such rule, and (c) if such Person is not
a natural person, (i) any Affiliate of such Person or (ii) any of such Person’s
or its Affiliates’ stockholders, general partners, limited partners, members,
directors, officers, or employees or their respective Affiliates to whom
Securities are Transferred.  For the
purposes of this definition, “Immediate Family”, with respect to an
individual, shall mean his brothers, sisters, spouse, children (including
adopted children), parents, parents-in-law, grandchildren, great grandchildren
and other lineal descendants and spouses of any of the foregoing, and “Affiliate”
shall mean a person controlled by, in control of, or under common control with,
another person.


 


(3)                                  Dividends.  Subject to the preferential rights of the
holders of Preferred Stock, when, as and if dividends are declared, whether
payable in cash, property or securities of the Corporation, the holders of both
Class A Common Stock and Class B Common Stock will be entitled to receive such
dividends, ratably according to the number of shares of Common Stock held by
them.


 


(4)                                  Rights
Upon Liquidation or Sale of the Corporation. In the event of any
liquidation, dissolution or winding up of the Corporation, the assets of the
Corporation shall be distributed in accordance with Section B(3)(a) of
this Article Fourth, and the rights of the holders of Common Stock to
participate in any such distribution shall be subject to the rights and
preferences of the holders of the Preferred Stock set forth therein.  In connection with a Sale of the
Corporation, the rights of the holder of Common Stock to receive consideration
to be paid in connection with such transaction shall be subject to
Section B(3)(b) of this Article FOURTH.


 


(5)                                  Conversion
of Class B Common Stock.


 


(a)                                  At
any time and from time to time, each record holder of Class B Common Stock will
be entitled to convert any and all of the shares of such holder’s Class B
Common Stock into shares of Class A Common Stock on a one to one basis at such
holder’s election.


 


(b)                                 At
any time and from time to time that Michael J. Hartnett or any Permitted
Transferee of Michael J. Hartnett shall transfer any shares of Class B Common
Stock other than to a Permitted Transferee such shares of Class B Common Stock
so transferred will automatically and without any further action be deemed to
have been converted into shares of Class A Common Stock on a one-to-one
basis.  Upon any such transfer, such
holder of shares of Class B Common Stock shall be obligated to effect the
procedures described in paragraphs (c)


 


22

















 


through (f) below; provided,
however,
that such conversion shall be deemed to have occurred regardless of such
holder’s compliance therewith.


 


(c)                                  Each
conversion of shares of Class B Common Stock into shares of Class A Common
Stock will be effected by the surrender of the certificate or certificates
representing the shares to be converted at the principal office of the
Corporation (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holder or holders of the
Class B Common Stock) at any time during normal business hours, together with a
written notice by the Holder of such Class B Common Stock stating that such
holder desires to convert the shares, or a stated number of the shares, of
Class B Common Stock represented by such certificate or certificates into Class
A Common Stock.  Such conversion will be
deemed to have been effected as of the close of business on the date on which
certificate or certificates have been surrendered and such notice has been
received, and at such time the rights of the holder of the converted Class B
Common Stock as such will cease and the person or persons in whose name or
names the certificate or certificates for shares of Class A Common Stock are to
be issued upon such conversion will be deemed to have become the holder or
holders of record of the shares of Class A Common Stock represented thereby.


 


(d)                                 Promptly
after such surrender and the receipt of such written notice, the Corporation
will issue and deliver in accordance with the surrendering holder’s
instructions (i) the certificate or certificates for the Class A Common Stock
issuable upon such conversion and (ii) a certificate representing any Class B
Common Stock which was represented by the certificate or certificates delivered
to the Corporation in connection with such conversion but which was not
converted.


 


(e)                                  The
Corporation will at all times reserve and keep available out of its authorized
but unissued shares of Class A Common Stock or its treasury shares, solely for
the purpose of issue upon the conversion of the Class B Common Stock as
provided in this Section (C)(3), such number of shares of Class A Common Stock
as shall then be issuable upon the conversion of all then outstanding shares of
Class B Common Stock.


 


(f)                                    The
issuance of certificates for Class A Common Stock upon the conversion of Class
B Common Stock will be made without charge to the holders of such shares for
any issuance tax in respect thereof or other cost incurred by the Corporation
in connection with such conversion and the related issuance of Class A Common
Stock.  The Corporation will not close
its books against the transfer of Class B Common Stock or of Class A Common
Stock issued or issuable upon the conversion of Class B Common Stock in any
manner which would interfere with the timely conversion of Class B Common
Stock.


 


(6)                                  Preemptive
Rights.  No holder of shares of
Common Stock shall be entitled to the preemptive right to subscribe to any or
all additional issues of stock of the Corporation of any or all classes or
series thereof, or to any securities of the Corporation convertible into, or
exchangeable or exercisable for, such stock, except to the extent set forth in
the Amended and Restated Stockholders’ Agreement, dated as of the date hereof
(the


 


23

















 


“Stockholders’ Agreement”), by and
among the Corporation and certain of its stockholders, as the same may be
amended from time to time.


 


(7)                                  Business
Combinations With Interested Stockholders. 
The Corporation shall not be governed by the provisions of Section 203
of the Delaware General Corporation Law.


 


FIFTH: 
Amendment of Bylaws.


 


In furtherance and not in limitation of the powers
conferred by statute, the Board of Directors is expressly authorized to make,
repeal, alter, amend and rescind the bylaws of the Corporation, subject to the
receipt of the requisite vote of the stockholders, if any, pursuant to Article
Fourth above.


 


SIXTH: 
Election of Directors.


 


Elections of directors need not be by written ballot
unless the bylaws of the Corporation shall so provide.


 


SEVENTH: 
Amendment of Certificate of Incorporation.


 


Subject to the receipt of the requisite vote of the
stockholders, if any, pursuant to Article Fourth above, the Corporation
reserves the right to amend, alter, change or repeal any provision contained in
this Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred on stockholders herein are granted subject to
this reservation.


 


EIGHTH: 
Liability and Indemnification.


 


A.                                   The
Corporation shall indemnify, in the manner and to the full extent permitted by
law, any person (or the estate of any person) who was or is a party to, or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding, whether or not by or in the right of the Corporation, and
whether civil, criminal, administrative, investigative or otherwise, by reason
of the fact that such person is or was a director, officer, employee or agent
of the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee, agent or fiduciary of another corporation,
partnership, joint venture, trust or other enterprise.  The Corporation may, to the full extent
permitted by law, purchase and maintain insurance on behalf of any such person
against any liability which may be asserted against him.  To the full extent permitted by law, the
indemnification provided herein shall include expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement, and, in the manner
provided by law, any such expenses shall be paid by the Corporation in advance
of the final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of the person seeking indemnification to pay such
amounts if it is ultimately determined that he is not entitled to be
indemnified.  The indemnification
provided herein shall not be deemed to limit the right of the Corporation to
indemnify any other person for any such expenses to the full extent permitted
by law, nor shall it be deemed exclusive of any other rights


 


24

















 


to which any person
seeking indemnification from the Corporation may be entitled under any
agreement, vote of stockholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding such office.


 


B.                                     A
director of the Corporation shall not be liable to the Corporation or its
stockholders for monetary damages for breach of fiduciary duty as a director,
except to the extent such exemption from liability or limitation thereof is not
permitted under the Delaware General Corporation Law as the same exits or may
hereafter be amended.


 


C.                                     Any
repeal or modification of Section B of this Article EIGHTH shall not adversely
affect any right or protection of a director of the Corporation existing hereunder
with respect to any act or omission occurring prior to such repeal or
modification.


 


IN WITNESS WHEREOF, the undersigned has executed this
Amended and Restated Certificate of incorporation on behalf of the Corporation
and does hereby verify and affirm, under penalty of perjury, that this Amended
and Restated Certificate of Incorporation is the act and deed of the
Corporation and that the facts stated herein are true as of March   ,
2003.


 


	
   

  	
   

  	
  ROLLER BEARING HOLDING
  COMPANY, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ Michael J. Hartnett

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Michael J.
  Hartnett

  
	
   

  	
   

  	
   

  	
  Title: President

  



 


25