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AMENDED
AND RESTATED
CERTIFICATE
OF INCORPORATION
OF
BERLINER
COMMUNICATIONS, INC.
[February]
[__], 2010
Berliner
Communications, Inc. (the “Corporation”), a
corporation organized and existing under the General Corporation Law of the
State of Delaware (the “DGCL”), does hereby
certify as follows:
A. The
Corporation’s original Certificate of Incorporation was filed under the name
Adina, Inc. with the Secretary of State of the State of Delaware on the 19th day
of November, 1987.
B. This
Amended and Restated Certificate of Incorporation (this “Amended and Restated
Certificate of Incorporation”), which amends and restates the present
Amended and Restated Certificate of Incorporation of the Corporation, was duly
adopted in accordance with the provisions of Sections 141, 228, 242 and 245 of
the DGCL.
C. This
Amended and Restated Certification of Incorporation shall become effective
immediately upon its filing with the Secretary of State of the State of
Delaware.
D. The
text of the Corporation’s Amended and Restated Certificate of Incorporation is
hereby amended and restated in its entirety to read as set forth as
follows:
ARTICLE
I
The name
of the Corporation is UniTek Global Services, Inc.
ARTICLE
II
The
address of the Corporation’s registered office in the State of Delaware is 874
Walker Road, Suite C, Dover, Kent County, Delaware 19904. The name of
the registered agent in the State of Delaware at such address is United
Corporate Services, Inc.
ARTICLE
III
The
nature of the business or purposes to be conducted or promoted is to engage in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of the State of Delaware (the “DGCL”).
ARTICLE
IV
A. Authorized Capital
Stock.
1. The
aggregate number of shares which the Corporation shall have the authority to
issue is 220,000,000 shares, consisting of (a) 200,000,000 shares of Common
Stock, par value
$0.00002 per share (the “Common Stock”), and
(b) 20,000,000 shares of preferred stock, par value $0.00002 per share (the
“Preferred
Stock”).
2. The
Board of Directors of the Corporation (the “Board”) is expressly
authorized at any time, and from time to time, subject to the limitations
prescribed by the DGCL, to issue shares of Preferred Stock in one or more
series, and for such consideration as the board of directors may determine, with
such voting powers, full or limited, or without voting powers, and with such
designations, preferences and relative participating, optional or other special
rights and qualifications, limitations or restrictions thereof, as shall be
stated in the resolution or resolutions providing for the issuance thereof, and
as are not stated in this Amended and Restated Certificate of Incorporation or
any amendment hereto. All shares of any one designated series of
Preferred Stock shall be of equal rank and identical in all
respects.
B. Common
Stock.
1. Each
share of Common Stock shall have identical rights and privileges in every
respect. The holders of shares of Common Stock shall be entitled to vote upon
all matters submitted to a vote of the stockholders of the Corporation and shall
be entitled to one vote for each share of Common Stock held.
2. Subject
to the prior rights and preferences, if any, applicable to shares of the
Preferred Stock or any series thereof, the holders of shares of the Common Stock
shall be entitled to receive such dividends (payable in cash, stock, or
otherwise) when, if and as may be declared thereon by the Board at any time and
from time to time out of any funds of the Corporation legally advisable
therefor.
C. Preferred
Stock.
1. The
Preferred Stock may be issued from time to time in one or more series. The Board
is hereby authorized to provide by resolution for the issuance of shares of
Preferred Stock in one or more series and, by filing a certificate pursuant to
the applicable law of the State of Delaware (hereinafter referred to as “Preferred Stock
Designation”), setting forth such resolution, to establish by resolution
from time to time the number of shares to be included in each such series, and
to fix by resolution the designation, powers, preferences and relative,
participating, optional or other rights, if any, of the shares of each such
series and the qualifications, limitations and restrictions
thereof. The number of authorized shares of Preferred Stock may be
increased or decreased (but not below the number of shares thereof outstanding)
by the affirmative vote of the holders of a majority of the voting power of all
the then-outstanding shares of capital stock of the Corporation entitled to vote
thereon, without a vote of the holders of the Preferred Stock, or any series
thereof, unless a vote of any such holders is required pursuant to the terms of
any Preferred Stock designation.
2. The
authority of the Board with respect to each series shall include, but not be
limited to, determination of the following:
(a) The
designation of the series, which may be by distinguishing number, letter or
title;
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(b) The
amounts or rates at which dividends will be payable on, and the preferences, if
any, of shares of the series in respect of dividends, and whether such
dividends, if any, shall be cumulative or noncumulative;
(c) Dates
at which dividends, if any, shall be payable;
(d) The
redemption rights and price or prices, if any, for shares of the
series;
(e) The
terms and amount of any sinking fund, if any, provided for the purchase or
redemption of shares of the series;
(f) The
amounts payable on, and the preferences, if any, of shares of the series in the
event of any voluntary or involuntary liquidation, dissolution or winding up of
the affairs of the Corporation;
(g) Whether
the shares of the series shall be convertible into, or exchangeable, or
redeemable for, shares of any other class or series, or any other security, of
the Corporation or any other corporation, and, if so, the specification of such
other class or series or such other security, the conversion or exchange price
or prices or rate or rates, any adjustments thereof, the date or dates at which
such shares shall be convertible or exchangeable and all other terms and
conditions upon which such conversion or exchange may be made;
(h) The
voting rights, if any, of the holders of shares of the series generally or upon
specified events; and
(i) Any
other rights, powers, preferences, privileges, qualifications, limitations or
restrictions of such shares, all as the Board of Directors may deem advisable
and are permitted by law.
Pursuant
to the authority conferred by this Article IV, the
following series of Preferred Stock have previously been designated, each such
series consisting of such number of shares, with such voting powers and with
such designations, preferences and relative, participating, optional or other
special rights, and qualifications, limitations or restrictions therefor as are
stated and expressed in the exhibit with respect to such series attached hereto
as specified below and incorporated herein by reference:
Exhibit A: Series A
Convertible Preferred Stock (the “Series A Preferred
Stock”)
Exhibit B: Series B
Convertible Preferred Stock (the “Series B Preferred
Stock”)
ARTICLE
V
The
Corporation is to have perpetual existence.
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ARTICLE
VI
1. Number of
Directors. The authorized number of directors that shall
constitute the full Board shall be fixed from time to time by resolution of the
Board.
2. Classified
Board. The Board shall be divided into three classes, as
nearly equal in number as the then-authorized number of directors constituting
the Board permits, with the term of office of one class expiring each
year. Each director shall serve for a term ending at the third annual
meeting of stockholders of the Corporation following the annual meeting at which
such director was elected. Members of each class shall hold office
until their successors are elected and qualified. At each succeeding
annual meeting of the stockholders of the Corporation, the successors of the
class of directors whose term expires at that meeting shall be elected by a
plurality vote of all votes cast at such meeting to hold office for a term
expiring at the annual meeting of stockholders held in the third year following
the year of their election.
3. Vacancies. Newly
created directorships resulting from any increase in the authorized number of
directors and any vacancies on the Board resulting from death, resignation,
disqualification, removal or other cause shall be filled only by the affirmative
vote of a majority of the remaining directors then in office, even though less
than a quorum of the Board. Any director elected in accordance with the
preceding sentence shall hold office for the remainder of the full term of the
class of directors in which the new directorship was created or in which the
vacancy occurred and until such director’s successor shall have been duly
elected and qualified. If the authorized number of directors is
changed, any increase or decrease shall be apportioned among the classes in such
a manner as the Board shall determine so as to maintain the number of directors
in each class as nearly equal as possible; provided, that no
decrease in the number of directors constituting the Board shall shorten the
term of any incumbent director.
4. Removal of
Directors. Subject to the terms of any one or more series or
classes of Preferred Stock and subject to the terms of this Amended and Restated
Certificate of Incorporation, any director or the entire Board may be removed
from office at any time, but only for cause and only by the affirmative vote of
the holders of at least a majority of the voting power of the Corporation’s
outstanding shares of stock entitled to vote generally in the election of
directors, voting together as a single class. For purposes hereof and
Section B.3 of
this Article VI
below, “cause” shall mean, with respect to any director, (i) the willful failure
by such director to perform, or the gross negligence of such director in
performing, the duties of a director, (ii) the engaging by such director in
willful or serious misconduct that is injurious to the Corporation or (iii) the
conviction of such director of, or the entering by such director of a plea of
nolo contendere to, a
crime that constitutes a felony.
B. Designation of Special
Committee.
1. Special
Committee. A special committee (the “Special Committee”)
of the Board is hereby authorized. The composition, duties,
procedures, and other matters of or relating to the Special Committee shall be
as established by this Section B of this
Article VI
of this
Amended and Restated Certificate of Incorporation. The Special
Committee shall automatically dissolve on January 27, 2013.
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2. Number of Members; Initial
Appointments; Tenure. The Special Committee shall consist of
three members of the Board. The initial members of the Special
Committee shall be Rich Berliner, Mark Dailey (together, the “Parent Designees”)
and Richard Siber (the “Company
Designee”). Each member of the Special Committee shall hold
office for at least three years following such member’s designation and until
his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal.
3. Vacancies. In
the event that (i) a Parent Designee ceases to serve as a member of the
Board or the Special Committee, the resulting vacancy on the Special Committee
shall be filled with a member of the Board to be chosen by the other Parent
Designee, or in the absence thereof by the Parent Representative (as such term
is defined in that certain Agreement and Plan of Merger, dated as of January 27,
2010 (the “Merger
Agreement”), by and among the Corporation, BCI East, Inc., a Delaware
corporation, Unitek Holdings, Inc., a Delaware corporation, and the other
parties signatory thereto), or (ii) the Company Designee ceases to serve as
a member of the Board or the Special Committee, the resulting vacancy on the
Special Committee shall be filled with an Independent Director (as such term is
defined in the Merger Agreement) to be chosen by a majority-in-interest of the
Board, and the Corporation will take all such actions as are necessary to cause
such replacements to be made in accordance with this Section B.3 of
this Article
VI.
C. Resignation and
Removal. Any member of the Special Committee may be removed
from the Special Committee at any time with cause upon the affirmative vote of
the remaining members of the Special Committee. Any member of the
Special Committee may resign from the Special Committee at any time by giving
written notice to the remaining members of the Special
Committee. Unless otherwise specified, such resignation shall take
effect upon its receipt; the acceptance of such resignation shall not be
necessary to make it effective.
1. Powers of the Special
Committee.
(a) For
so long as the Special Committee exists, the Board and the Corporation shall not
take any of the following actions without the prior approval of a majority of
the members of the Special Committee:
(i) amend
or in any way modify this Amended and Restated Certification of Incorporation,
any Preferred Stock Designation, the Corporation’s bylaws or any other agreement
of the Corporation or any of its subsidiaries, in each case, in a way that would
(A) amend or modify the rights, privileges or preferences of the Series A
Preferred Stock or the Series B Preferred Stock, or (B) amend or modify the
provisions regarding the rights of the Special Committee;
(ii) issue
any additional shares of the Series A Preferred Stock or the Series B Preferred
Stock to any Affiliated Party (as such term is defined in the
Merger Agreement), other than pursuant to that certain Credit Support Agreement,
dated as of January 27, 2010, by and among Unitek Holdings, Inc., Sector
Performance Fund, LP and SPF SBS, LP (the “Credit Support
Agreement”);
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(iii) amend
or in any way modify, or waive any right with respect to, any term or provision
of the BMO Loan Documents (as such term is defined in the Merger Agreement),
except as set forth in the Credit Support Agreement;
(iv) refinance
or otherwise restructure the BMO Loan (as such term is defined in the Merger
Agreement), except as set forth in the Credit Support Agreement;
(v) for
so long as the Controlling Stockholders (as such term is defined in the Merger
Agreement) collectively own beneficially or of record or otherwise have the
right to vote or consent with respect to at least thirty-five percent (35%) of
the total number of the then-outstanding shares of Common Stock (including
Preferred Stock calculated on an as-if-converted basis), enter into, amend,
modify or supplement, or permit any of the Corporation’s subsidiaries to enter
into, amend, modify or supplement, any agreement, transaction, commitment or
arrangement with any Affiliated Party (including any securities issuance),
except for employment arrangements and benefit programs (including equity
incentive plans) as approved by the Board or the compensation committee of the
Board and except as otherwise expressly contemplated by the Merger
Agreement;
(vi) amend,
modify or supplement any provision of, or agree to the buyout of, the HM
Monitoring and Oversight Agreement (as such term is defined in the Merger
Agreement) other than as permitted therein; or
(vii) make
any determination as to the form of payment of any fees or interest payments
owed pursuant to the Credit Support Agreement; provided, that if any
of the Unitek Credit Agreements (as such term is defined in the Merger
Agreement) do not permit the borrowers thereunder to make dividends to the
Obligors (as such term is defined in the Credit Support Agreement) to pay such
fees or interest payments in cash, then such fees and interest payments shall be
paid in shares of Series B Preferred Stock; provided, further, that if the
Special Committee has not made a determination as to such payment before it is
due, then such payment shall be paid in shares of Series B Preferred
Stock.
(b) The
Special Committee shall have the right at any time to cause the Board to discuss
and take such actions as are reasonably necessary to determine if the BMO Loan
could be refinanced on terms more favorable to the Corporation and its
subsidiaries (or otherwise repaid or eliminated), and in such case the Board
shall have the obligation to review with the Corporation’s management and third
party advisors any alternative financing options and the Board shall have the
obligation to consider in good faith
taking such action as is reasonably necessary to refinance the BMO Loan on more
favorable terms to the Corporation and its subsidiaries than those in place at
such time; provided, however, that such
right may only be exercised two times by members of the Special Committee in the
aggregate during any twelve-month period.
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(c) The
Special Committee shall have the right, power, and authority to specifically
enforce the right to approve certain actions requiring the consent of the
Special Committee or to specifically enforce the rights of Parent and its
Subsidiaries with respect to any covenants, in each case as and only to the
extent set forth in the Merger Agreement and in any of the agreements included
as exhibits thereto in which the Special Committee is expressly granted third
party beneficiary rights.
2. Professional
Advisors. The Special Committee shall have the authority to
retain any independent counsel, experts or advisors (accounting, financial or
otherwise) that it reasonably believes to be necessary or appropriate to carry
out its duties. The Special Committee may also use the services of
the Corporation’s regular legal counsel or other advisors to the
Corporation. The Corporation shall provide appropriate funding, as
determined by the Special Committee, for the payment to any advisors or legal
counsel retained by the Special Committee and for ordinary administrative
expenses of the Special Committee that are necessary or appropriate in carrying
out its duties.
3. Meetings and Procedures of
the Special Committee.
(a) Regular Meetings; Special
Meetings; Notices. There will be no regular meetings of the
Special Committee. Special meetings of the Special Committee may be
called by any member of the Special Committee upon not less than two days notice
stating the place, date, and hour of the meeting, which notice may be written or
oral. Any special meeting of the Special Committee may be held by
telephone or video conference call in which each member participating therein
can be heard by each other member so participating. Any member of the
Special Committee may waive notice of any meeting and no notice of any meeting
need be given to any member thereof who attends such meeting in
person. The notice of a meeting of the Special Committee need not
state the business proposed to be transacted at the meeting.
(b) Quorum. A
majority of the members of the Special Committee shall constitute a quorum for
the transaction of business at any meeting thereof, and action of the Special
Committee must be authorized by the affirmative vote of a majority of the
members present at a meeting at which a quorum is present.
(c) Action Without a
Meeting. Any action required or permitted to be taken by the
Special Committee at a meeting may be taken without a meeting if a consent in
writing, setting forth the action so taken, shall be signed by all of the
members of the Special Committee.
(d) Procedures. The
Special Committee may fix its own rules of procedure, provided that such rules
of procedure are not inconsistent with this Amended and Restated Certificate of
Incorporation. The Special Committee shall keep regular minutes
of its proceedings and report the same to the Board for its information at the
meeting held next after the proceedings shall have occurred. The
chairman of the Special Committee shall be a Parent Designee.
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ARTICLE
VII
Advance notice of stockholder
nominations for election of directors and other business to be brought by
stockholders before a meeting of stockholders shall be given in the manner
provided in the bylaws of the Corporation.
ARTICLE
VIII
The Board
may make, alter or repeal the bylaws of the Corporation.
ARTICLE
IX
Special
meetings of stockholders, for any purpose or purposes, unless otherwise
prescribed by statute, may be called by the Chairman of the Board or by the
Board pursuant to a resolution adopted by a majority of the total number of
directors which the Corporation would have if there were no vacancies, and such
special meeting may not be called by any other person or persons.
ARTICLE
X
1. Mandatory
Indemnification. The Corporation shall indemnify its directors
and officers to the fullest extent authorized or permitted by law, as now or
hereafter in effect, and such right to indemnification shall continue as to a
person who has ceased to be a director or officer of the Corporation and shall
inure to the benefit of his or her heirs, executors and personal and legal
representatives.
2. Right to Advancement of
Expenses. The right to indemnification conferred by this Article X shall
include the right to be paid by the Corporation the expenses incurred in
defending or otherwise participating in any proceeding in advance of its final
disposition upon receipt by the Corporation of an undertaking by or on behalf of
the director or officer receiving advancement to repay the amount advanced if it
shall ultimately be determined that such person is not entitled to be
indemnified by the Corporation under this Article
X.
3. Non-Exclusivity of
Rights. The rights to indemnification and to the advancement
of expenses conferred in this Article X shall not
be exclusive of any other right which any person may have or hereafter acquire
under any statute, this Amended and Restated Certificate of Incorporation
(including any certificate of designations relating to any series or class of
Preferred Stock), the Corporation’s bylaws, any agreement, vote of stockholders
or disinterested directors or otherwise.
4. Insurance. The
Corporation shall have the power to purchase and maintain insurance, at its
expense, to protect itself and any director, officer, employee or agent of
the
Corporation or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against such expense,
liability or loss under the DGCL.
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5. Indemnification of Employees
and Agents of the Corporation. The Corporation may, to the
extent authorized from time to time by the Board, grant rights to
indemnification and to the advancement of expenses to any employee or agent of
the Corporation to the fullest extent of the provisions of this Article X with
respect to the indemnification and advancement of expenses of directors and
officers of the Corporation.
6. Exception to Right of
Indemnification. Notwithstanding any provision in this Article X, the
Corporation shall not be obligated by this Article X to make any
indemnity in connection with any claim made against a current or former director
or officer of the Corporation (an “Indemnitee”):
(a) for
which payment has actually been made to or on behalf of such Indemnitee under
any insurance policy or other indemnity provision, except with respect to any
excess beyond the amount paid under any insurance policy or other indemnity
provision; or
(b) for
an accounting of profits made from the purchase and sale (or sale and purchase)
by such Indemnitee of securities of the Corporation within the meaning of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar
provisions of state statutory law or common law; or
(c) in
connection with any proceeding (or any part of any proceeding) initiated by such
Indemnitee, including any proceeding (or any part of any proceeding) initiated
by such Indemnitee against the Corporation or its directors, officers, employees
or other indemnitees, unless (i) the Corporation has joined in or the Board
authorized the proceeding (or any part of any proceeding) prior to its
initiation, (ii) the Corporation provides the indemnification, in its sole
discretion, pursuant to the powers vested in the Corporation under applicable
law, or (iii) the proceeding is one to enforce such Indemnitee’s rights to
indemnification or the advancement of expenses.
7. Nature of Rights and
Amendments to Article X. The rights conferred upon Indemnitees
in this Article
X shall be contract rights and such rights shall continue as to an
Indemnitee who has ceased to be a director, officer or trustee and shall inure
to the benefit of the Indemnitee’s heirs, executors and
administrators. No alteration, amendment, addition to or repeal of
this Article X,
nor the adoption of any provision of this Amended and Restated Certificate of
Incorporation (including any certificate of designations relating to any series
or class of Preferred Stock) inconsistent with this Article X, shall
adversely affect any rights to indemnification and to the advancement of
expenses of a director or officer of the Corporation existing at the time of
such alteration, amendment, addition to, repeal or adoption with respect to any
acts or omissions occurring prior to such alteration, amendment, addition to,
repeal or adoption.
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ARTICLE
XI
To the
fullest extent permitted by the DGCL, as the same may be amended from time to
time, a director or former director of the Corporation shall not be personally
liable to the Corporation or its stockholders for monetary damages for breach of
fiduciary duty as a director. If the DGCL is amended hereafter to
permit the further elimination or limitation of the liability of directors, then
the liability of a director of the Corporation shall be eliminated or limited to
the fullest extent permitted by the DGCL, as so amended. Any
alteration, amendment, addition to or repeal of this Article XI, or
adoption of any provision of this Amended and Restated Certificate of
Incorporation (including any certificate of designations relating to any series
or class of Preferred Stock) inconsistent with this Article XI, shall not
adversely affect any right or protection of a director of the Corporation
existing at the time of such alteration, amendment, addition to, repeal or
adoption with respect to acts or omissions occurring prior to such alteration,
amendment, addition to, repeal or adoption.
ARTICLE
XII
To the
fullest extent permitted by Section 122(17) of the DGCL and except as may
be otherwise expressly agreed in writing by the Corporation and HM Capital
Partners, LLC, the Corporation, on behalf of itself and its subsidiaries,
renounces any interest or expectancy of the Corporation and its subsidiaries in,
or in being offered an opportunity to participate in, business opportunities,
which are from time to time presented to HM Capital Partners, LLC or any of its
managers, officers, directors, agents, stockholders, members, partners,
affiliates and subsidiaries (other than the Corporation and its subsidiaries),
even if the opportunity is one that the Corporation or its subsidiaries might
reasonably be deemed to have pursued or had the ability or desire to pursue if
granted the opportunity to do so, and no such person or entity shall be liable
to the Corporation or any of its subsidiaries for breach of any fiduciary or
other duty, as a director or officer or otherwise, by reason of the fact that
such person or entity pursues or acquires such business opportunity, directs
such business opportunity to another person or entity or fails to present such
business opportunity, or information regarding such business opportunity, to the
Corporation or its subsidiaries unless, in the case of any such person who is a
director or officer of the Corporation, such business opportunity is expressly
offered to such director or officer in writing solely in his or her capacity as
a director or officer of the Corporation. Any person or entity
purchasing or otherwise acquiring any interest in any shares of stock of the
Corporation shall be deemed to have notice of and consented to the provisions of
this Article XII. Neither
the alteration, amendment, addition to or repeal of this Article XII, nor
the adoption of any provision of this Amended and Restated Certificate of
Incorporation (including any certificate of designations relating to any series
or class of Preferred Stock) inconsistent with this Article XII,
shall eliminate or reduce the effect of this Article XII in
respect of any business opportunity first identified or any other matter
occurring, or any cause of action, suit or claim that, but for this Article XII,
would accrue or arise, prior to such alteration, amendment, addition, repeal or
adoption.
ARTICLE
XIII
The
Corporation reserves the right to amend, alter, change or repeal any provision
contained in this Amended and Restated Certificate of Incorporation, in the
manner now or hereafter
prescribed by statute, and all rights conferred upon stockholders herein are
granted subject to this reservation; provided, that
neither Section B of
Article VI
hereof nor this Article XIII
shall be amended, altered, changed or repealed (and no other provision herein
shall be amended, altered, changed or repealed in a manner inconsistent with the
provisions of Section B
of
Article VI hereof) until such time as the Special Committee ceases
to exist in accordance with the terms hereof without the prior unanimous
approval of the Special Committee (which approval shall include the approval of
at least one Parent Designee).
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IN WITNESS WHEREOF, the
Corporation has caused this Amended and Restated Certificate of Incorporation as
of the date first written above.
By:
Ronald Lejman
Its:
Chief Financial Officer & Treasurer
Signature
Page to
Amended
And Restated
Certificate
Of Incorporation