STATE OF DELAWARE
OFFICE OF THE SECRETARY OF STATE
I, EDWARD J. FREEL, SECRETARY OF STATE OF THE STATE OF
DELAWARE, DO HEREBY CERTIFY THE ATTACHED IS k TRUE AND CORRECT COPY
OF THE CERTIFICATE OF INCORPORATION OF "EMI ACQUISITION SUB, INC.",
FILED. IN THIS OFFICE ON THE TWENTY-SEVENTH DAY OF APRIL, A.D. 1998, AT
4:30 O'CLOCK P.M.
A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE
COUNTY RECORDER OF DEEDS.
/s/ Edward J. Freel
Edward J. Freel, Secretary of State
CERTIFICATE OF INCORPORATION
OF
EMI ACQUISITION SUB, INC.
FIRST The name of the Corporation is EMI Acquisition Sub, Inc,
(the "Corporation").
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle, The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL")
FOURTH. The aggregate number of shares of all classes of stock
which the Corporation shall have authority to issue is 5,000, consisting of
shares of Common Stock, without par value (the "Common Stock").
Each share of Common Stock shall be entitled to one vote on
all matters submitted to a vote of the stockholders of the Corporation.
FIFTH: The name and mailing address of the Incorporator is as
follows:
John W. Kaufmann
c/o Winston & Strawn
200 Park Avenue
New York, New York 10166-4193
SIXTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(i) The business and affairs of the Corporation shall
be managed by or under the direction of the Board of
Directors.
(ii) The directors shall have concurrent power with
the stockholders to make, alter, amend, change or add to or
repeal the By laws of the Corporation.
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(iii) The number of directors of the Corporation
shall be as from time to time fixed by, or in the manner
provided in, the By-laws of the Corporation. Election of
directors need not be by written ballot unless the By-laws so
provide.
(iv) In addition to the powers and authority
hereinbefore or by statute expressly conferred upon them, the
directors are hereby empowered to exercise all such powers and
do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the
GCL, this Certificate of Incorporation, and any By-laws
adopted by the stockholders; provided, however, that no
By-laws hereafter adopted by the stockholders shall invalidate
any prior act of the directors which would have been valid if
such By-laws had not been adopted.
SEVENTH. Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) 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.
EIGHTH. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
NINTH. A. A 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, 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 the law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any transaction
from which the director derived an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize 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 General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of the provisions of this Article NINTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
B. The Corporation shall indemnify any person who was or is a
party or witness, or is threatened to be made a party or witness, to any
threatened, pending or completed action, suit or proceeding by or in the right
of the Corporation, whether civil, criminal, administrative or investigative
(including a grand jury proceeding) by reason of the fact that he or she is or
was a director or officer of the Corporation, is or was serving at the request
of the
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CERTIFICATE OF INCORPORATION
OF
EMI ACQUISITION SUB, INC.
FIRST The name of the Corporation is EMI Acquisition Sub, Inc,
(the "Corporation").
SECOND: The address of the Corporation's registered office in
the State of Delaware is Corporation Trust Center, 1209 Orange Street, in the
City of Wilmington, County of New Castle, The name of its registered agent at
that address is The Corporation Trust Company.
THIRD: The purpose of the Corporation is to engage in any
lawful act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware as set forth in Title 8 of the Delaware
Code (the "GCL")
FOURTH. The aggregate number of shares of all classes of stock
which the Corporation shall have authority to issue is 5,000, consisting of
shares of Common Stock, without par value (the "Common Stock").
Each share of Common Stock shall be entitled to one vote on
all matters submitted to a vote of the stockholders of the Corporation.
FIFTH: The name and mailing address of the Incorporator is as
follows:
John W. Kaufmann
c/o Winston & Strawn
200 Park Avenue
New York, New York 10166-4193
SIXTH: The following provisions are inserted for the
management of the business and the conduct of the affairs of the Corporation,
and for further definition, limitation and regulation of the powers of the
Corporation and of its directors and stockholders:
(i) The business and affairs of the Corporation shall
be managed by or under the direction of the Board of
Directors.
(ii) The directors shall have concurrent power with
the stockholders to make, alter, amend, change or add to or
repeal the By laws of the Corporation.
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(iii) The number of directors of the Corporation
shall be as from time to time fixed by, or in the manner
provided in, the By-laws of the Corporation. Election of
directors need not be by written ballot unless the By-laws so
provide.
(iv) In addition to the powers and authority
hereinbefore or by statute expressly conferred upon them, the
directors are hereby empowered to exercise all such powers and
do all such acts and things as may be exercised or done by the
Corporation, subject, nevertheless, to the provisions of the
GCL, this Certificate of Incorporation, and any By-laws
adopted by the stockholders; provided, however, that no
By-laws hereafter adopted by the stockholders shall invalidate
any prior act of the directors which would have been valid if
such By-laws had not been adopted.
SEVENTH. Meetings of stockholders may be held within or
without the State of Delaware, as the By-laws may provide. The books of the
Corporation may be kept (subject to any provision contained in the GCL) 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.
EIGHTH. The Corporation reserves the right to amend, alter,
change or repeal any provision contained in this Certificate of Incorporation,
in the manner now or hereafter prescribed by statute, and all rights conferred
upon stockholders herein are granted subject to this reservation.
NINTH. A. A 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, 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 the law, (iii) under Section 174 of the
General Corporation Law of the State of Delaware, or (iv) for any transaction
from which the director derived an improper personal benefit. If the General
Corporation Law of the State of Delaware is amended to authorize 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 General Corporation Law of the State of Delaware, as so
amended. Any repeal or modification of the provisions of this Article NINTH by
the stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation existing at the time of such repeal
or modification.
B. The Corporation shall indemnify any person who was or is a
party or witness, or is threatened to be made a party or witness, to any
threatened, pending or completed action, suit or proceeding by or in the right
of the Corporation, whether civil, criminal, administrative or investigative
(including a grand jury proceeding) by reason of the fact that he or she is or
was a director or officer of the Corporation, is or was serving at the request
of the
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Corporation as a director, officer, employee, agent, partner or trustee (or in
any similar position) of another corporation, partnership, joint venture, trust
, employee benefit plan or other enterprise, to the fullest extent authorized or
permitted by the General Corporation Law of the State of Delaware and any other
applicable law, as the same exists or may hereafter be amended (but, in the case
of any such amendment, only to the extent that such amendment permits the
Corporation to provide broader indemnification rights than said law permitted
the Corporation to provide prior to such amendment), against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by him or her in connection with such action, suit or
proceeding, or in connection with any appeal thereof, provided however, that,
except as provided in Section C of this Article NINTH with respect to
proceedings to enforce rights to indemnification, the Corporation shall
indemnify any such person in connection with an action, suit or proceeding (or
part thereof) initiated by such person only if the initiation of such action,
suit or proceeding (or part thereof) was authorized by the Board of Directors.
Such right to indemnification shall include the right to payment by the
Corporation of expenses incurred in connection with any such action, suit or
proceeding in advance of its final disposition; provided, however that the
payment of such expenses incurred by a director or officer in advance of the
final disposition of such action, suit or 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 should be determined
ultimately that such director or officer is not entitled to be indemnified under
this Article or otherwise.
C. Any indemnification or advancement of expenses required
under this Article shall be made promptly, and in any event within sixty (60)
days, upon the written request of the person entitled thereto. If a
determination by the Corporation that the person is entitled to indemnification
pursuant to this Article is required, and the Corporation fails to respond
within sixty (60) days to a written request for indemnity or advancement of
expenses, in whole or in part, or if payment in full pursuant to such request is
not made within sixty (60) days, the rights to indemnification and advancement
of expenses shall be enforceable by such person in any court of competent
jurisdiction. Such person's costs and expenses incurred in connection with
successfully establishing his or her right to indemnification, in whole or in
part, in any such action or proceeding shall also be indemnified by the
Corporation. It shall be a defense to any such action other than an action
brought to enforce a claim for advancement of expenses pursuant to this Article
where the required undertaking has been received by the Corporation) that the
claimant has not met the standard of conduct set forth in the General
Corporation Law of the State of Delaware, but the burden of proving such defense
shall be on the Corporation. Neither the failure, of the Corporation (including
the Board of Directors, independent legal counsel or the stockholders) to have
made a determination of the claimant is proper in the circumstances because he
or she has met the applicable standard of conduct set forth in the General
Corporation Law of the State of Delaware, nor the fact that there has been an
actual determination by the Corporation (including the Board of Directors,
independent legal counsel or the stockholders) that the claimant has not met
such applicable standard of 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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D. The indemnification and advancement of expenses provided
by, or granted pursuant to, this Article shall not be deemed exclusive of any
other rights to which those seeking indemnification or advancement of expenses
may be entitled under by-law, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding such office, and shall continue as
to a person who has ceased to be a director, officer, employee or agent, and
shall inure to the benefit of the heirs, executors and administrators of such a
person. Any repeal or modification of the provisions of this Article NINTH shall
not affect any obligations of the Corporation or any rights regarding
indemnification and advancement of expenses of a director, officer, employee or
agent with respect to any threatened, pending or completed action, suit or
proceeding for which indemnification or the advancement of expenses is
requested, in which the alleged cause of action accrued at any time prior to
such repeal or modification.
E. The Corporation may purchase and maintain insurance, at its
expense. to protect itself and any person who 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,
partnership, joint venture, trust, employee benefit plan or other enterprise
against liability asserted against him or her in any such capacity, or arising
out of his or her status as such, whether or not the Corporation would have the
power to indemnify him or her against such liability under the provisions of
this Article, the General Corporation Law of the State of Delaware or otherwise.
F. If this Article NINTH or any portion thereof shall be
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each director and officer of the
Corporation as to expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement with respect to any action, suit or proceeding,
whether civil, criminal, administrative or investigative, including, without
limitation, a grand jury proceeding and an action, suit or proceeding by or in
the right of the Corporation, to the fullest extent permitted by any applicable
portion of this Article that shall not have been invalidated, by the General
Corporation Law of the State of Delaware or by any other applicable law.
I, THE UNDERSIGNED, being the Incorporator hereinbefore named,
for the purpose of forming a corporation pursuant to the GCL, do make this
Certificate, hereby declaring and certifying that this is my act and deed and
the facts herein stated are true, and accordingly, have hereunto set my hand
this 27th day of April, 1998.
/s/ John W. Kaufmann
John W. Kaufmann
Incorporator
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