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EXHIBIT 3.20
CERTIFICATE OF INCORPORATION
OF
ERO NY ACQUISITION, 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 NY ACQUISITION, 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, Kent County, Delaware 19904, and the name of the
registered agent of the Corporation in the State of Delaware at such address is
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 one thousand (1,000) shares of common stock of
$0.01 par value per share. 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
---- ---------------
Jamie E. Jedras Sachnoff & Weaver, Ltd.
30 South Wacker Drive
Suite 2900
Chicago, Illinois 60606
SIXTH: Meetings of stockholders may be held within or without the
state of Delaware, as the By-Laws of the Corporation may so provide. 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 to time by the Board of Directors or in the By-Laws of the
Corporation.
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SEVENTH: 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 or any officer elected or appointed by the stockholders or
by the Board of Directors may be removed at 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. Any repeal or modification of this Article SEVENTH, Section 5
shall not adversely affect any right or protection of a director of the
Corporation existing at the time of such repeal or modification.
EIGHTH: (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,
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or a person of whom he or she is the legal representative, is or was a director
or officer 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 or officer, 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 attorney's 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 or officer 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 EIGHTH, 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 EIGHTH 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 an 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 EIGHTH 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, shall be a defense to the action or create a presumption
that the claimant has not met the applicable standard of conduct.
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(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.
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 or officer of the Corporation which
imposes duties on, or involves services by, such director or officer 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.
NINTH: The Corporation expressly elects not to be governed by Section
203 of the General Corporation Law of the State of Delaware.
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 11th day of October, 1995
/s/ JAMIE E. JEDRAS
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Jamie E. Jedras, Incorporator
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