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EXHIBIT 3.18
CERTIFICATE OF INCORPORATION
OF
ERO CANADA, INC.
The undersigned, a natural person, for the purposes of organizing a
corporation for conducting the business and promoting the purposes hereinafter
stated, under the provisions and subject to the requirements of the laws of the
State of Delaware (particularly Chapter 1, Title 8 of the Delaware Code and the
acts amendatory thereof and supplemental thereto, and known, identified and
referred to as the "Delaware General Corporation Law"), hereby certifies that:
FIRST: The name of the corporation (hereinafter called the
"Corporation") is:
ERO Canada, Inc.
SECOND: The address, including street, number, city and county of the
registered office of the Corporation in the State of Delaware is 32 Loockerman
Square - Suite L-100, Dover, Delaware 19904, Kent County and the name of the
registered agent of the Corporation in the State of Delaware at such address in
The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business and of the purposes to be conducted
and promoted by the Corporation shall be to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the Corporation shall
have the authority to issue is 1,000 shares, $0.01 par value. Any and all such
shares issued, and for which the full consideration has been paid or delivered,
shall be deemed fully paid stock and the holder of such shares shall not be
liable for any further call or assessment or any other payment thereon.
FIFTH: The name and the mailing address of the sole incorporator is as
follows:
Name Mailing Address
Dianne Chiappetti 30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
SIXTH: The books of the Corporation may be kept (subject to any
provision contained in the statutes) outside the State of Delaware at such
place or places as may be designated from time
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to time by the Board of Directors or in the By-Laws of the Corporation.
SEVENTH: Whenever a compromise or arrangement is proposed between this
Corporation and its creditors or any class of them and/or between this
Corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this Corporation or of any creditor or stockholder thereof or on the
application of any receiver or receivers appointed for this Corporation under
the provisions of Section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this Corporation under the provisions of Section 292 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this Corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
Corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this Corporation as a consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or class, of creditors, and/or of the
stockholders or class of stockholders of this Corporation as the case may be,
and also on this Corporation.
EIGHTH: For the management of the business and for the conduct of the
affairs of the Corporation and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided:
1. The number of directors of the Corporation shall be as specified in the
By-Laws of the Corporation but such number may from time to time be
increased or decreased in such manner as may be prescribed by the
By-Laws. In no event shall the number of directors be less than the
minimum prescribed by law. The election of directors need not be by
ballot. Directors need not be stockholders.
2. In furtherance and not in limitation of the powers conferred by the
laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered to make, alter, amend, and repeal By-Laws,
subject to the power of the stockholders to alter or repeal By-Laws
made by the Board of Directors.
3. Any director of any officer elected or appointed by the stockholders or
by the Board of Directors may be removed at
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any time in such manner as shall be provided in the By-Laws of the
Corporation.
4. In the absence of fraud, no contract or other transaction between the
Corporation and any other corporation and no act of the Corporation,
shall in any way be affected or invalidated by the fact that any of the
directors of the Corporation are pecuniarily or otherwise interested
in, or are directors or officers of, such other corporation; and in
the absence of fraud, any director, individually, or any firm of which
any director may be a member, may be a party to, or may be pecuniarily
or otherwise interested in, any contract or transaction of the
Corporation; provided, in any case, that the fact that he or such firm
is so interested shall be disclosed or shall have been known to the
Board of Directors or the majority thereof; and any director of the
Corporation, who is also a director or officer of any such other
corporation, or who is also interested, may be counted in determining
the existence of a quorum at any meeting of the Board of Directors of
the Corporation which shall authorize any such contract, act or
transaction, and may vote thereat to authorize any such contract, act
or transaction, with like force and effect as if he were not such
director or officer of such other corporation, or not so interested.
5. To the fullest extent permitted by the Delaware General Corporation
Law as it now exists or may hereafter be amended, no director of this
Corporation shall be liable to this Corporation or any of its
stockholders for monetary damages for breach of fiduciary duty as a
director.
NINTH: (a) Any person who was or is a party or is threatened to be
made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal administrative or investigative
(hereinafter a "proceeding"), by reason of the fact that he or she, or a person
of whom he or she is the legal representative, 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 or agent of another corporation or
of a partnership, joint venture, trust or other enterprise, including service
with respect to employee benefit plans, whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or
agent or in any other capacity while serving as a director, officer, employee
or agent, may be indemnified and held harmless by the Corporation to the
fullest extent authorized by and in the manner set forth in the Delaware
General Corporation Law against all expense, liability and loss (including
attorneys'
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fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in
connection therewith and such indemnification shall continue as to a person who
has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators; provided, however,
that, except as provided in subsection (b) of this Article NINTH, the
Corporation may indemnify any such person seeking indemnification in connection
with a proceeding (or part thereof) initiated by such person only if such
proceeding (or part thereof) was authorized by the Board of Directors of the
Corporation. Any right to indemnification conferred by the Corporation pursuant
to this Article NINTH may include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition; provided, however, that, if the Delaware General Corporation Law
requires, the payment of such expenses incurred by a director or officer in his
or her capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such person while a director or officer,
including, without limitation, service to an employee benefit plan) in advance
of the final disposition of a proceeding, shall be made only upon delivery to
the Corporation of a undertaking, by or on behalf of such director or officer,
to repay all amounts so advanced if it shall ultimately be determined that such
director or officer is not entitled to be indemnified under this Article or
otherwise.
(b) If any claim arising from any right to indemnification conferred
by the Corporation pursuant to the authority granted under subsection (a) of
this Article NINTH is not paid in full by the Corporation within thirty days
after a written claim has been received by the Corporation, the claimant may at
any time thereafter bring suit against the Corporation to recover the unpaid
amount of the claim and, if successful in whole or in part, the claimant shall
be entitled to be paid also the expense of prosecuting such claim. It shall be
a defense to any such action (other than an action brought to enforce a claim
for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standards of
conduct which make it permissible under the Delaware General Corporation Law
for the Corporation to indemnify the claimant for the amount claimed. Neither
the failure of the Corporation (including its Board of Directors, independent
legal counsel, or its stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the Delaware General Corporation Law, nor an actual determination
by the Corporation (including its Board of Directors, independent legal
counsel, or its stockholders) that the claimant has not met such applicable
standard or conduct.
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shall be a defense to the action or create a presumption that the claimant has
not met the applicable standard of conduct.
(c) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition authorized by
this Article shall not be exclusive of any other right which any person may have
or hereafter acquire under any statute, provision of this Certificate of
Incorporation, by-law, agreement, vote of stockholders or disinterested
directors or otherwise.
(d) The Corporation may 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 such 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 Delaware General Corporation Law.
(e) For the purposes of this Article, references to "the Corporation"
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers and employees or agents, so that
any person who is or was serving at the request of such constituent corporation
as a director, officer, employee or agent of another corporation or is or was
serving at the request of such constituent corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise, shall stand in the same position under the provisions of this
Article with respect to the result or surviving corporation as he would have
with respect to such constituent corporation if its separate existence had
continued.
For the purposes of this Article, references to "other enterprises"
shall include employee benefit plans; references to "fines" shall include any
excise taxes assessed on a person with respect to any employee benefit plan;
and references to "serving at the request of the Corporation" shall include any
service as a director, officer, employee or agent of the Corporation which
imposes duties on, or involves services by, such director, officer employee, or
agent with respect to an employee benefit plan, its participants or
beneficiaries; and a person who acted in good faith and in a manner he
reasonably believed to be in the interest of the participants and beneficiaries
of an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Article.
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TENTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and
all rights at any time conferred upon the stockholders of the Corporation by
this Certificate are granted subject to the provisions of this Article TENTH.
Executed at Chicago, Illinois on the 2nd Day of August, 1994
/s/ DIANNE M. CHIAPPETTI
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Dianne M. Chiappetti
Incorporator