**Exhibit 3.1**

 

**SECOND AMENDED AND RESTATED CERTIFICATE**

 

**OF INCORPORATION**

 

**OF**

 

**DELCO REMY INTERNATIONAL, INC.**

 

1. Name. The name of the corporation is Delco Remy International, Inc. (the “Corporation”). 

 

2. Registered Office and Agent. The address of the Corporation’s registered office in the State of Delaware is 1209 Orange Street, in the Cityof Wilmington, County of New Castle. The name of the Corporation’s registered agent at such address is The Corporation Trust Company. 

 

3. Purpose. The purposes for which the Corporation is formed are to engage in any lawful act or activity for which corporations may be organizedunder the General Corporation Law of the State of Delaware (“DGCL”) and to possess and exercise all of the powers and privileges granted by such law and any other law of Delaware. 

 

4. Authorized Capital. The aggregate number of shares of stock whichthe Corporation shall have authority to issue is 15,501,000 shares, divided into four (4) classes consisting of 3,500,000 shares of 12% Series A Accreting Preferred Stock, par value $.01 per share (“Series A Preferred Stock”); 1,000 sharesof Class A Common Stock, par value $.001 per share (“Class A Common Stock”); 6,000,000 shares of Class B Common Stock, par value $.001 per share (“Class B Common Stock”); and 6,000,000 shares of Class C Common Stock, par value$.001 per share (“Class C Common Stock”). Class A Common Stock, Class B Common Stock and Class C Common Stock are hereinafter sometimes collectively referred to as “Common Stock”. 

 

The following is a statement of the designations, preferences,qualifications, limitations, restrictions and the special or relative rights granted to or imposed upon the shares of each such class. 

 

a. SERIES A PREFERRED STOCK 

 

(1) Payment of Dividends

 

(a) The holders of Series A Preferred Stock shall be entitled to receive ratably on a per share basis such dividends as may be declared by the Board of

Directors; provided that the aggregate amount of dividends per share of Series A Preferred Stock declared by theBoard of Directors or paid by the Corporation from time to time shall not exceed an amount equal to the amount accreting at the rate of 12% per annum on the Series A Issue Price (as defined below), compounded annually from the date of originalissuance of such share of Series A Preferred Stock to the date of payment of the dividend in question (the “Maximum Dividend Amount”). “Series A Issue Price” shall mean $100.00 per share, which shall be proportionately increasedin the event of a combination of shares of Series A Preferred Stock and proportionately decreased in the event of a subdivision or stock split of shares of Series A Preferred Stock. 

 

(b) If at any time dividends equal to the Maximum Dividend Amount on all shares of Series A Preferred Stock thenoutstanding to the end of the annual dividend period next preceding such time shall not have been paid, the amount of the deficiency shall be paid before any sum shall be set aside for or applied by the Corporation to the purchase, redemption orother acquisition for value of any shares of Junior Stock (either pursuant to any applicable sinking fund requirement or otherwise) or any dividend or other distribution shall be paid or declared and set apart for payment on any Junior Stock (otherthan a dividend payable in Junior Stock); provided, however, that the foregoing shall not prohibit the Corporation from repurchasing shares of Junior Stock from a former employee or director of the Corporation (or a subsidiary of theCorporation). 

 

(2) Preference on Liquidation

 

(a) In the event that the Corporation shall be liquidated, dissolved orwound up, whether voluntarily or involuntarily, after all creditors of the Corporation shall have been paid in full, the holders of the Series A Preferred Stock shall be entitled to receive, out of the assets of the Corporation legally available fordistribution to its stockholders, whether from capital, surplus or earnings, before any amount shall be paid to the holders of any shares of Junior Stock, an amount in cash per share equal to (i) the Series A Issue Price, plus (ii) the AccretingAmount (as defined below) to the date of final distribution, less (iii) (A) any dividends declared and paid on such shares of Series A Preferred Stock, plus (B) 12% of any dividends declared and paid thereon, compounded annually from the date ofpayment to the date of final distribution, and no more. “Accreting Amount” shall mean an amount equal to the amount accreting at the rate of 12% per annum on the Series A Issue Price, compounded annually from the date of original issuanceof such share of Series A Preferred Stock to the specified date of calculation of such Accreting Amount. If upon any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, the net assets of the Corporation shall beinsufficient to pay the holders of all outstanding shares of Series A Preferred Stock the full amounts to which they respectively shall be entitled, such assets, or the proceeds thereof, shall be distributed ratably among the holders of the Series APreferred Stock in accordance with the amounts which would be payable on such distribution if the amount to which the holders of the Series A Preferred Stock are entitled were paid in full. Holders of Series A Preferred Stock shall not be entitled,upon the voluntary or involuntary liquidation, dissolution or winding up of the 

 

2 

Corporation, to receive any amounts with respect to such stock other than the amounts referred to in this paragraph(2)(a). 

 

(b) Neither the purchase nor redemption by theCorporation of shares of any class of stock in any manner permitted by the Certificate of Incorporation or any amendment thereof, nor the merger or consolidation of the Corporation with or into any other corporation or corporations, nor a sale,exchange, conveyance, transfer or lease of all or substantially all of the Corporation’s assets shall be deemed to be a liquidation, dissolution or winding up of the Corporation for the purposes of this paragraph (2); provided,however, that any consolidation or merger of the Corporation in which the Corporation is not the surviving entity shall be deemed to be a liquidation, dissolution or winding up of the affairs of the Corporation within the meaning of thisparagraph (2) if, (i) in connection therewith, the holders of Common Stock of the Corporation receive as consideration, whether in whole or in part, for such Common Stock (1) cash, (2) notes, debentures or other evidences of indebtedness orobligations to pay cash or (3) preferred stock of the surviving entity which ranks on a parity with or senior to the preferred stock received by holders of the Series A Preferred Stock with respect to liquidation, accreting amounts payable ordividends or (ii) the holders of the Series A Preferred Stock do not receive preferred stock of the surviving entity with rights, powers and preferences equal to (or more favorable to the holders than) the rights, powers and preferences of theSeries A Preferred Stock. 

 

(3) Repurchase Rights

 

(a) Each holder of Series A Preferred Stock may elect, atsuch holder’s option by notice delivered pursuant to paragraph 3(b) below, to have such holder’s Series A Preferred Stock repurchased by the Corporation, in whole or in part, at any time after December 16, 2023 at a price per share equalto (i) the Series A Issue Price, plus (ii) the Accreting Amount to the Repurchase Date (as defined below), less (iii) (A) any dividends declared and paid on such shares of Series A Preferred Stock, plus (B) 12% of any dividends declared and paidthereon, compounded annually from the date of payment to the Repurchase Date (the “Repurchase Price”). The date specified for any repurchase pursuant to this paragraph (3)(a) is each referred to herein individually as a “RepurchaseDate.” 

 

(b) If a holder of Series A Preferred Stockelects to have the Corporation repurchase such holder’s shares of Series A Preferred Stock, such holder shall give notice (a “Repurchase Notice”) to the Corporation of such holder’s election to have the Corporation repurchasesuch holder’s Series A Preferred Stock not less than ten (10) days and not more than sixty (60) days prior to the applicable Repurchase Date. Each notice by an electing holder shall state whether all or less than all the outstanding shares ofthe Series A Preferred Stock held by such holder are to be repurchased and the total number of shares of such Series A Preferred Stock subject to such repurchase. 

 

(c) The holder of the shares of Series A Preferred Stock to be repurchased shall surrender the certificate or certificatesrepresenting such shares at the office of the Corporation on or prior to the Repurchase Date. The Corporation shall deliver to 

 

3 

such holder, or on the holder’s written instruction to the holder’s designee, the applicable Repurchase Priceon the later to occur of (i) the Repurchase Date, and (ii) the date on which such holder surrenders to the Corporation (or its designee) the certificate(s) for the shares of Series A Preferred Stock to be repurchased as specified in the applicableRepurchase Notice. If less than all the shares represented by one share certificate are to be repurchased, the Corporation shall issue a new share certificate for the shares not repurchased. The repurchase shall be deemed to have been effectedimmediately prior to the close of business on the applicable Repurchase Date. Whether or not the share certificates representing shares of Series A Preferred Stock with respect to which a Repurchase Notice have been delivered are surrendered on orprior to the Repurchase Date, such shares shall no longer be deemed to be outstanding and all rights of a holder with respect to such shares surrendered for repurchase shall terminate effective as of the Repurchase Date except the right to receivethe applicable Repurchase Price upon the surrender of such shares to the Corporation. 

 

(4) Redemption

 

(a) Theoutstanding shares of the Series A Preferred Stock may be redeemed from funds legally available therefor, in whole or in part, at the election of the Corporation, expressed by resolution of the Board of Directors, on or after December 16, 2023, at aprice per share equal to (i) the Series A Issue Price, plus (ii) the Accreting Amount to the Redemption Date (as defined below), less (iii) (A) any dividends declared and paid on such shares of Series A Preferred Stock, plus (B) 12% of any dividendsdeclared and paid thereon, compounded annually from the date of payment to the Redemption Date (the “Redemption Price”). The date of any redemption pursuant to this paragraph (4)(a) is referred to herein as a “Redemption Date.”

 

(b) The Corporation shall deliver notice of every redemptionpursuant to this paragraph (4) by first class mail to each holder of record on the record date for such redemption at such holder’s address as the same appears on the stock register of the Corporation not less than ten (10) days and not morethan sixty (60) days prior to the Redemption Date. Each such notice shall state (i) the Redemption Date, (ii) the place or places where such shares are to be surrendered, (iii) that the holder is to surrender the shares at the place of redemptionand (iv) that the Accreting Amount on the Series A Preferred Stock shall cease to accrete on the Redemption Date. If less than all the outstanding Series A Preferred Stock is to be redeemed, the selection of shares for redemption shall be made prorata and the notice of redemption to a holder shall state the number of shares of Series A Preferred Stock of such holder to be redeemed. The amount of the applicable Redemption Price shall be deposited on or before the applicable Redemption Date intrust for the account of the holders of Series A Preferred Stock entitled thereto with a bank or trust company in good standing doing business in the State of New York and having capital and surplus of at least $100,000,000 (the date of such depositbeing hereinafter in this paragraph (4) referred to as the “date of deposit”). 

 

(c) Notice of the date on which, and the name and address of the bank or trust company with which, the deposit has been or will be made shall be 

 

4 

included in the notice of redemption. On and after the applicable Redemption Date (unless default shall be made by theCorporation in providing money for the payment of the Redemption Price pursuant to the notice of redemption), or if the Corporation shall make such deposit on or before the date specified therefor in the notice of redemption, then on and after thedate of deposit (provided notice of redemption has been duly given), all accreting amounts on the Series A Preferred Stock so called for redemption shall cease to accrete, and the notice of redemption shall so state, and, notwithstanding that anycertificate for shares of Series A Preferred Stock is not surrendered for cancellation, the shares represented thereby shall no longer be deemed outstanding and all rights of the holders thereof as stockholders of the Corporation shall cease andterminate, except the right to receive the Redemption Price (without interest) as hereinafter provided. 

 

(d) At any time on or after the Redemption Date, the holders of record of the Series A Preferred Stock shall be entitled to receive the Redemption Priceupon actual delivery to the bank or trust company with which such deposit shall be made of certificates for the shares to be redeemed, such certificates, if required, to be duly endorsed in blank or accompanied by proper instruments of assignmentand transfer duly endorsed in blank. The making of such deposit with any such bank or trust company shall not relieve the Corporation of liability for payment of the Redemption Price. 

 

(e) Any money so deposited which shall remain unclaimed by the holders of such Series A Preferred Stock at the end of two(2) years after the Redemption Date shall be paid by such bank or trust company to the Corporation, which shall thereafter, to the extent of the money so repaid, be liable for the payment of the Redemption Price. Any interest accrued on money sodeposited shall be paid to the Corporation from time to time. 

 

(5) Conversion

 

(a) Subject to the provisionsof this paragraph (5), the Corporation shall have the right, upon or concurrently with the Corporation’s first Qualified Public Offering (as defined below), to convert all outstanding shares (and fractional shares) of Series A Preferred Stock,in whole or in part, into fully paid and non-assessable shares of Class B Common Stock. The number of shares of Common Stock deliverable upon conversion of a share of Series A Preferred Stock, adjusted as hereinafter provided, is referred to hereinas the “Conversion Ratio.” The Conversion Ratio is (i) the Series A Issue Price, plus (ii) the Accreting Amount to the date fixed for conversion, less (iii) (A) any dividends declared and paid on such shares of Series A Preferred Stock,plus (B) 12% of any dividends declared and paid thereon, compounded annually from the date of payment to the date fixed for conversion, *divided by*the net proceeds per share of Common Stock received, after giving effect to underwritingdiscounts, by the Corporation in its Qualified Public Offering. 

 

(b) In the event of the conversion of shares of Series A Preferred Stock, the Corporation shall send via first class mail, postage prepaid, a notice of conversion to each holder of record of shares of Series A Preferred Stock addressed tothe holder 

 

5 

at the address of such holder appearing on the books of the Corporation or given by the holder to the Corporation for thepurpose of notice (a “Conversion Notice”), or, if no such address appears or is given, then at the place where the principal executive office of the Corporation is located, not later than ten (10) days before such conversion is to occur,as set forth above. The Conversion Notice shall state: 

 

(i) inthe case of any conversion, whether all or less than all the outstanding shares of the Series A Preferred Stock are to be converted and the total number of shares of such Series A Preferred Stock being converted; 

 

(ii) the number of shares of Series A Preferred Stock held by the holderthat the Corporation will convert; 

 

(iii) the date fixed forconversion and the procedure pursuant to which the price will be determined, at which such price the shares of Series A Preferred Stock will be converted; 

 

(iv) that the holder is to surrender to the Corporation, in the manner and at the place designated, its certificates representing the shares of Series APreferred Stock to be converted; and 

 

(v) that the AccretingAmount on shares to be converted will cease to accrete on the date fixed for conversion. 

 

(c) The holder of the shares of Series A Preferred Stock to be converted shall surrender the certificate representing such shares at the office of the Corporation. Unless the shares issuable on conversion are to beissued in the same name as the name in which such shares of Series A Preferred Stock are registered, each share surrendered for conversion shall be accompanied by instruments of transfer, in form satisfactory to the Corporation, duly executed by theholder or the holder’s duly authorized attorney and an amount sufficient to pay any transfer or similar tax. 

 

(d) As promptly as practicable after the surrender by the holder of the certificates for shares of Series A Preferred Stock as aforesaid, the Corporationshall issue and shall deliver to such holder, or on the holder’s written order to the holder’s transferee, a certificate or certificates for the whole number of shares of Common Stock issuable upon the conversion of such shares inaccordance with the provisions of this paragraph (5). If less than all the shares represented by one share certificate are to be converted, the Corporation shall issue a new share certificate for the shares not converted. 

 

(e) The conversion shall be deemed to have been effected immediately priorto the close of business on the date specified in the Conversion Notice, and the person in whose name or names any certificate or certificates for shares of Common Stock shall be issuable upon such conversion shall be deemed to have become theholder of record of the shares of Common Stock represented thereby at such time on such date 

 

6 

and such conversion shall be into a number of shares of Common Stock equal to the product of the number of shares ofSeries A Preferred Stock surrendered times the Conversion Ratio in effect at such time on such date. All shares of Common Stock delivered upon conversion of the Series A Preferred Stock will upon delivery be duly and validly issued and fully paidand non-assessable, free of all liens and charges and not subject to any preemptive rights. Whether or not the share certificates representing shares of Series A Preferred Stock are surrendered, such shares shall no longer be deemed to beoutstanding and all rights of a holder with respect to such shares surrendered for conversion, including any rights to the Accreting Amount or unpaid dividends, shall immediately terminate except the right to receive the Common Stock. 

 

(f) The Corporation covenants that it will at all times reserve and keepavailable, free from preemptive rights, such number of its authorized but unissued shares of Common Stock as shall be required for the purpose of effecting conversions of the Series A Preferred Stock. Prior to the delivery of any securities whichthe Corporation shall be obligated to deliver upon conversion of the Series A Preferred Stock, the Corporation shall comply with all applicable federal and state laws and regulations which require action to be taken by the Corporation. 

 

(g) The Corporation will pay any and all documentary, stamp or similarissue or transfer taxes payable in respect of the issue or delivery of shares of Common Stock on conversion of the Series A Preferred Stock pursuant hereto; provided that the Corporation shall not be required to pay any tax which may bepayable in respect of any transfer involved in the issue or delivery of shares of Common Stock in a name other than that of the holder of the Series A Preferred Stock to be converted and no such issue or delivery shall be made unless and until theperson requesting such issue or delivery has paid to the Corporation the amount of any such tax or has established, to the satisfaction of the Corporation, that such tax has been paid. 

 

(h) No fractional shares of Common Stock shall be issued upon conversion of Series A Preferred Stock, provided that whetheror not fractional shares result from a conversion shall be determined on the basis of the total number of shares of Series A Preferred Stock the holder is at the time converting into Common Stock and the number of shares of Common Stock issuableupon such aggregate conversion. In lieu of any fractional shares to which the holder would otherwise be entitled, the Corporation shall round the number of shares of Common Stock issuable to such holder to the nearest whole share. 

 

(6) Voting. Except as required by law and except for any voting by theholders of the Series A Preferred Stock as part of a separate class or series pursuant to paragraph (7) hereunder or any other provision of the Corporation’s Certificate of Incorporation, no holder of Series A Preferred Stock, as such holder,shall be entitled to vote on any matter submitted to a vote of stockholders. On any matters on which the holders of the Series A Preferred Stock shall be entitled to vote, they shall be entitled to one vote for each share held. 

 

7 

(7) Other Rights. Without the written consent of the holders of a majority of the outstandingshares of Series A Preferred Stock or the vote of the holders of a majority of the outstanding shares of Series A Preferred Stock at a meeting of the holders of Series A Preferred Stock called for such purpose, the Corporation shall not (a) create,authorize or issue any other class or series of stock entitled to a preference prior to Series A Preferred Stock upon any dividend, distribution or accreting amount or any liquidation, distribution of assets, dissolution or winding up of theCorporation, or increase the authorized amount of any such other class or series, or (b) amend, alter or repeal any provision of the Corporation’s Certificate of Incorporation so as to adversely affect the relative rights and preferences of theSeries A Preferred Stock; provided, however, that any such amendment that changes the Maximum Dividend Amount or Accreting Amount payable on the Series A Preferred Stock, or the provisions of Section 4.a.(1)(b) above, shall require theaffirmative vote of the holders of not less than 75% of the then outstanding shares of Series A Preferred Stock at a meeting of such holders called for such purpose or the written consent of the holder of each share of Series A Preferred Stock.

 

(8) Acknowledgement. Each holder of Series A PreferredStock, by acceptance thereof, acknowledges and agrees that payments of dividends, interest, premium and principal on, and redemption and repurchase of, such securities by the Corporation are subject to restrictions contained in certain credit andfinancing agreements of the Corporation. 

 

(9)Definitions. 

 

The following terms, whenused herein, shall have the meanings set forth below: 

 

(a)“corporation” shall mean a corporation, partnership, business trust, unincorporated organization, association or joint stock company. 

 

(b) “Junior Stock” shall mean any series or class of the capital stock of the Corporation now or hereafter authorized or issued by theCorporation ranking junior to the Series A Preferred Stock with respect to dividends, distributions or accreting amounts or upon the liquidation, distribution of assets, dissolution or winding-up of the Corporation, including without limitation theClass A Common Stock, the Class B Common Stock and the Class C Common Stock. 

 

(c) “person” shall mean an individual, a corporation, partnership, trust, organization, association, government or any department or agency thereof, or any other individual or entity. 

 

(d) “Qualified Public Offering” shall mean an underwritten publicoffering of securities of the Corporation pursuant to an effective registration statement under the Securities Act in respect of the offer and sale of shares of Common Stock for the account of the Corporation resulting in aggregate net proceeds tothe Corporation and any 

 

8 

stockholder selling shares of Common Stock in such offering of not less than $20,000,000, net of underwriting discountsand commissions. 

 

b. CLASS A COMMON STOCK, CLASS B COMMON STOCKAND CLASS C COMMON STOCK 

 

Except as otherwiseprovided herein, all shares of Class A Common Stock, Class B Common Stock and Class C Common Stock shall be identical and shall entitle the holders thereof to the same rights and privileges. 

 

(1) Voting Rights. The holders of shares of Common Stock shall havethe following voting rights: 

 

(a) The holders of Class ACommon Stock shall have the general right to vote for all purposes, including the election of directors, as provided by law. Except as provided in this paragraph (1), the Original Holders (as defined below) of Class A Common Stock shall be entitledto that number of votes equal to, in the aggregate, 51% of the total number of votes entitled to be cast by the holders collectively owning all of the outstanding shares of Class A Common Stock and Class B Common Stock. The number of votes to becast by the holder of Class A Common Stock may vary and shall be determined, in each instance, prior to a vote of Corporation stockholders. The number of votes granted to the Class A Common Stock shall be determined by multiplying the number ofshares of Class B Common Stock outstanding immediately prior to a stockholder vote by 0.51 divided by 0.49 (the “Class A Vote”); provided, however, that, if at any time hereafter, the aggregate principal amount ofindebtedness outstanding under the Corporation’s (i) Indenture dated August 1, 1996 among the Corporation, certain subsidiaries defined therein and National City Bank of Indiana; and (ii) Indenture dated December 22, 1997 among the Corporation,certain subsidiary guarantors and United States Trust Company of New York is less than $50,000,000, the holder of Class A Common Stock shall thereafter be entitled to one vote for each share of Class A Common Stock held. The “OriginalHolders” shall be Court Square Capital Limited (“Court Square”), Citicorp or Citibank, N.A. or any direct or indirect subsidiary of Citicorp or Citibank, N.A., in each case, to the extent that such entity is the owner of Class ACommon Stock. 

 

(b) In the event that the Original Holder ofClass A Common Stock enters into any agreement, arrangement or understanding for the purpose of vesting in another person the right to vote the Class A Common Stock, including, without limitation, any voting trust, voting agreement or proxy, exceptfor any agreement, arrangement or understanding to vote such shares of Class A Common Stock which arises solely from a revocable proxy or consent given to a person in response to a proxy or consent solicitation made pursuant to, and in accordancewith, if applicable, the rules or regulations of the Securities Exchange Act of 1934, as amended, the Original Holder of Class A Common Stock shall thereafter be entitled to one vote for each share of Class A Common Stock held. 

 

9 

(c) So long as Class A Common Stock is entitled to more than one vote per share, in any election ofdirectors of the Corporation, 21% (rounded up to the nearest whole director) of the directors to be elected shall be elected by a majority of the votes cast by the holders of shares of outstanding Class B Common Stock other than Court Square or anyperson that is or is deemed to be in the consolidated tax group of which Court Square is a member. 

 

(d) The holders of Class B Common Stock shall have the general right to vote for all purposes, including the election of directors, as provided by law.Each holder of Class B Common Stock shall be entitled to one vote for each share thereof held. Except as otherwise required by law, the holders of Class C Common Stock shall have no voting rights. 

 

(2) Fundamental Changes. The Corporation may not amend its Certificateof Incorporation, enter into any plan of liquidation, recapitalization, reorganization, reclassification, consolidation or merger, sell all or substantially all of the Corporation’s assets or stock, in one transaction or a series oftransactions, or enter into any other business combination without the approval of a majority of the holders of Class B Common Stock. 

 

(3) Dividends. Holders of Common Stock shall be entitled to receive ratably on a per share basis such dividends as may be declared by the Board ofDirectors; provided that if dividends are declared which are payable in shares of Class A Common Stock, Class B Common Stock or Class C Common Stock, dividends shall be declared which are payable at the same rate on each class of Common Stockand the dividends payable in shares of Class A Common Stock shall be payable to holders of Class A Common Stock, the dividends payable in shares of Class B Common Stock shall be payable to holders of Class B Common Stock and the dividends payable inshares of Class C Common Stock shall be payable to holders of Class C Common Stock. 

 

(4) Conversion. 

 

(a)The Original Holder of Class A Common Stock shall be entitled to convert all of its Class A Common Stock into the same number of shares of Class B Common Stock; provided that upon any sale of Class A Common Stock to any person other thanCiticorp, Citibank, N.A. or one or more of their direct or indirect subsidiaries, the Class A Common Stock shall automatically convert into the same number of shares of Class B Common Stock. 

 

(b) Each record holder of Class B Common Stock shall be entitled to convertany or all of such holder’s Class B Common Stock into the same number of shares of Class C Common Stock and each record holder of Class C Common Stock shall be entitled to convert any or all of such holder’s Class C Common Stock into thesame number of shares of Class B Common Stock; provided, however, that upon any conversion, all persons, including Court Square, that are or are deemed to be included in the consolidated tax group of 

 

10 

which Court Square is a member may not cast more than 79% of the total votes entitled to be cast by all holders of CommonStock. 

 

(c) Automatic Conversion. Notwithstanding theprovisions of paragraph (4)(b), each share of Class C Common Stock shall automatically convert into the same number of shares of Class B Common Stock (i) immediately prior to its sale in a Qualified Public Offering; or (ii) at such time as suchshare of Class C Common Stock has been sold or transferred to any person other than a person that is or is deemed to be included in the consolidated tax group of which Court Square Capital Limited is a member. On the date of such automaticconversion, all rights with respect to the Class C Common Stock so converted shall terminate, except for the rights of the holders thereof, upon surrender of their certificate or certificates therefor, to receive certificates for an equal number ofshares of Class B Common Stock. As soon as practicable after the date of such automatic conversion, the holders of shares of Class C Common Stock so converted shall surrender to the Corporation the certificate or certificates representing the sharesso converted, and thereafter the Corporation shall cause to be issued and delivered to such holder a certificate for the number of shares of Class B Common Stock issuable upon such conversion in accordance with the provisions hereof. Allcertificates evidencing shares of Class C Common Stock which are automatically converted into Class B Common Stock in accordance with the provisions hereof shall, from and after the dates such certificates are so converted, be deemed to have beenretired and cancelled and the shares of Class C Common Stock represented thereby converted into Class B Common Stock for all purposes, notwithstanding the failure of the holder or holders thereof to surrender such certificates to the Corporation.

 

(d) Voluntary Conversion. Each voluntary conversion ofshares of one class of Common Stock into shares of another class of Common Stock shall be effected by the surrender of the certificate or certificates representing the shares to be converted at the principal office of the Corporation at any timeduring normal business hours, together with a written notice by the holder of such shares stating the number of shares that any such holder desires to convert into the other class of Common Stock. Such voluntary conversion shall be deemed to havebeen effected as of the close of business on the date on which such certificate or certificates have been surrendered and such notice has been received by the Corporation, and at such time the rights of any such holder with respect to the convertedclass of Common Stock shall cease and the person or persons in whose name or names the certificate or certificates for shares of the other class of Common Stock are to be issued upon such conversion shall be deemed to have become the holder orholders of record of the shares of such other class of Common Stock represented thereby. 

 

(e) Promptly after such surrender and the receipt by the Corporation of the written notice from the holder hereinbefore referred to, the Corporation shall issue and deliver in accordance with the surrenderingholder’s instructions the certificate or certificates for the other class of Common Stock issuable upon such conversion and a certificate representing any shares of Common Stock which were represented by the certificate or certificatesdelivered to the Corporation in connection with such conversion but which were not 

 

11 

converted. The issuance of certificates for the other class of Common Stock upon conversion shall be made without chargeto the holder or holders of such shares for any issuance tax (except stock transfer taxes) in respect thereof or other cost incurred by the Corporation in connection with such conversion. 

 

(5) Transfers. The Corporation shall not close its books against the transfer of any share of Common Stock, or of anyshare of Common Stock issued or issuable upon conversion of shares of the other class of Common Stock, in any manner that would interfere with the timely conversion of such shares of Common Stock. 

 

(6) Subdivision and Combinations of Shares. If the Corporation in anymanner subdivides or combines the outstanding shares of the other classes of Common Stock, the outstanding shares of the other class of Common Stock shall be proportionately subdivided or combined. 

 

(7) Reservation of Shares for Conversion. So long as any shares of anyclass of Common Stock are outstanding, the Corporation shall at all times reserve and keep available out of its authorized but unissued shares of Class B Common Stock and Class C Common Stock (or any shares of Class B Common Stock or Class C CommonStock which are held as treasury shares), the number of shares sufficient for issuance upon conversion of the outstanding shares of common stock. 

 

(8) Distribution of Assets. In the event of the voluntary or involuntary liquidation, dissolution or winding up of the Corporation, holders ofCommon Stock shall be entitled to receive a pro rata portion of all of the remaining assets of the Corporation available for distribution to its stockholders based on the number of shares of Class A Common Stock, Class B Common Stock and Class CCommon Stock outstanding after all amounts to which the holders of Series A Preferred Stock are entitled have been paid or set aside in cash for payment. 

 

(9) Merger, etc. In connection with any merger, consolidation, or recapitalization in which holders of Class B Common Stock generally receive, orare given the opportunity to receive, consideration for their shares, all holders of Class A Common Stock or Class C Common Stock shall receive or be given the opportunity to receive, as the case may be, the same form of consideration for theirshares in the same amount per share as is received by holders of Class B Common Stock. 

 

5. Bylaws. In furtherance and not in limitation of the powers conferred by law, the board of directors of the Corporation is authorized to adopt, amend or repeal the bylaws of the Corporation, except asotherwise specifically provided therein, subject to the powers of the stockholders of the Corporation to amend or repeal any bylaws adopted by the board of directors. 

 

6. Elections of Directors. Elections of directors need not be by written ballot unless and except to the extent thebylaws of the Corporation shall so provide. 

 

12 

7. Business Combinations with Interested Stockholders. The Corporation elects not to be governedby section 203 of the Delaware General Corporation Law (“DGCL”) immediately upon filing of this certificate pursuant to DGCL section 203(b)(3). 

 

8. Right to Amend. The Corporation reserves the right to amend or repeal any provision contained in this Certificate as the same may from time totime be in effect in the manner now or hereafter prescribed by law, and all rights, preferences and privileges conferred on stockholders, directors or others hereunder are subject to such reservation. 

 

9. Limitation on Liability. The directors of the Corporation shall beentitled to the benefits of all limitations on the liability of directors generally that are now or hereafter become available under the DGCL. Without limiting the generality of the foregoing, to the fullest extent permitted by the DGCL, as itexists on the date hereof or as it may hereafter be amended, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (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 the DGCL, or(iv) for any transaction from which the director derived an improper personal benefit. Any repeal or modification of this Section 9 or any adoption of any provision of this Certificate of Incorporation inconsistent with this Section 9 shall beprospective only, and shall not affect, to the detriment of any director, any limitation on the personal liability of a director of the Corporation existing at the time of such repeal, modification or adoption. 

 

13