EXHIBIT 3.17
RESTATED ARTICLES OF INCORPORATION
OF
SC ACQUISITION CORP.
SC ACQUISITION CORP. (hereinafter referred to as the "Corporation"),
having duly elected to be governed by IC 23-1-18 through IC 23-1-54 (except for
IC 23-1-18-3, IC 23-1-21 and IC 23-1-53-3) effective July 29, 1987, and desiring
to amend and restate its Articles of Incorporation effective August 19, 1987,
pursuant to the provisions of the Indiana Business Corporation Law (hereinafter
referred to as the "Corporation Law"), submits the following Restated Articles
of Incorporation:
ARTICLE I
Name
The name of the Corporation is SC ACQUISITION CORP.
ARTICLE II
Purposes
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Section 2.1. Purposes of the Corporation. The purposes for which the
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Corporation is formed are:
(a) To engage in the business of manufacturing, compounding, and/or
constructing such articles, products, and equipment, either from wood, metal,
glass, plastics, or any other substance whatsoever, and any combination of same
which the Board of Directors of the Corporation may from time to time determine,
and to that end to buy the necessary materials incident to such manufacturing,
compounding, and/or constructing, and to sell the articles, products, and/or
equipment so manufactured, compounded and/or constructed.
(b) To advance, loan and lend money; buy, purchase, acquire, sell, deal
in and otherwise dispose of notes, bonds, mortgages, debentures, stocks,
conditional sales contracts, accounts receivable and all other forms of
securities or obligations issued by any person, firm or corporation.
(c) To apply for, obtain, lease, register or otherwise acquire, and to take
hold, use, develop, sell, assign or otherwise dispose of, trade processes,
methods, copyrights, formulae, designs, brands, and labels of the United States
or any other country or government and to use, exercise, accept licenses for and
grant licenses on or in respect to any of said trade marks, trade names, letters
patent, patent rights, improvements, processes, methods, copyrights, formulae,
designs, brands, and labels of the United States or any other country or
government.
(d) To purchase or otherwise acquire, and to hold, own, maintain, work,
develop, sell, lease, convey, mortgage, or otherwise dispose of lands and
leaseholds and any interest, estate and rights in real property which may be
required, convenient or appropriate for carrying on any of the businesses or
corporate objects herein set out.
(e) To acquire by purchase, subscription or otherwise, and to own, hold,
sell, assign, deal in, exchange, transfer, mortgage, pledge, or otherwise
dispose of any shares of the capital stock, bonds, mortgages, securities or
evidences of indebtedness, issued or created by any other domestic or foreign
corporation and to issue in payment or exchange therefor shares of the capital
stock, bonds, securities, or other obligations of the Corporation.
(f) To guarantee the payment of and to pay the dividends, debts,
liabilities or obligations of any corporation, domestic or foreign, in which the
Corporation may own any of the shares of the capital stock, bonds, securities or
evidences of indebtedness.
(g) To borrow money and to make, accept, endorse, transfer, assign, execute
and issue bonds, promissory notes, debentures and all other evidences of
indebtedness, for the purpose of securing any of its obligations or contracts,
upon such terms and conditions as the Board of Directors shall authorize and as
may be permitted by law.
(h) To acquire, hold, deal in, sell, transfer, cancel or otherwise dispose
of any shares of its own capital stock, provided, however, that the use of the
funds of the Corporation for any of said purposes shall not impair its capital.
(i) To do all and everything necessary, suitable and proper for the
accomplishment of any of the purposes of the attainment of any of the objects or
the furtherance of any of the powers hereinbefore set forth, either alone or in
association with other firms, individuals or corporations, and to
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do every other thing or things, act or acts, incidental or appurtenant to or
growing out of or connected with the aforesaid business or powers or any part or
parts thereof, provided the same be not inconsistent with, or in violation of,
the laws under which the Corporation is organized.
(j) To engage in the transaction of any or all lawful business for which
corporations may now or hereafter be incorporated under the Corporation Law.
Section 2.2. Powers of the Corporation. The Corporation shall have (a)
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all powers now or hereafter authorized by or vested in corporations pursuant to
the provisions of the Corporation Law, (b) all powers now or hereafter vested in
corporations by common law or any other statute or act, and (c) all powers
authorized by or vested in the Corporation by the provisions of these Restated
Articles of Incorporation or by the provisions of its By-Laws as from time to
time in effect.
ARTICLE III
Term of Existence
The period during which the Corporation shall continue is perpetual.
ARTICLE IV
Registered Office and Agent
The street address of the Corporation's registered office at the time
of adoption of these Restated Articles of Incorporation is Circle Tower,
Indianapolis, Indiana 46204 and the name of its Resident Agent at such office at
the time of adoption of these Restated Articles of Incorporation is Prentice
Hall Corporation System, Inc.
ARTICLE V
Shares
Section 5.1. Authorized Class and Number of Shares. The capital stock
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of the Corporation shall be of one class and kind, which may be referred to as
common shares. The total number of shares which the Corporation has authority to
issue shall be One Thousand (1,000) shares. The Corporation's shares do not
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have any par or stated value, except that, solely for the purpose of any statute
or regulation of any jurisdiction imposing any tax or fee based upon the
capitalization of the Corporation, each of the Corporation's shares shall be
deemed to have a par value of $1.00 per share.
Section 5.2. Voting Rights of Shares. Except as otherwise provided by
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the Corporation Law and subject to such shareholder disclosure and recognition
procedures (which may include voting prohibition sanctions) as the Corporation
may by action of its Board of Directors establish, the Corporation's shares have
unlimited voting rights and each outstanding share shall, when validly issued by
the Corporation, entitle the record holder thereof to one vote at all
shareholders' meetings on all matters submitted to a vote of the shareholders of
the Corporation.
Section 5.3. Other Terms of Shares. The Corporation's shares shall be
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equal in every respect insofar as their relationship to the Corporation is
concerned (but such equality of rights shall not imply equality of treatment as
to redemption or other acquisition of shares by the Corporation). The holders of
shares shall be entitled to share ratably in such dividends or other
distributions (other than purchases, redemptions or other acquisitions of shares
by the Corporation), if any, as are declared and paid from time to time on the
shares at the discretion of the Board of Directors. In the event of any
liquidation, dissolution or winding up of the Corporation, either voluntary or
involuntary, the holders of shares shall be entitled to share, ratably according
to the number of shares held by them, in all remaining assets of the Corporation
available for distribution to its shareholders.
The Corporation shall have the power to declare and pay dividends or
other distributions upon the issued and outstanding shares of the Corporation,
subject to the limitation that a dividend or other distribution may not be made
if, after giving it effect, the Corporation would not be able to pay its debts
as they become due in the usual course of business or the Corporation's total
assets would be less than its total liabilities. The Corporation shall have the
power to issue shares as a share dividend or other distribution in respect of
issued and outstanding shares.
The Board of Directors of the Corporation has authority to authorize
and direct the acquisition by the Corporation of the issued and outstanding
shares of the Corporation at such times, in such amounts, from such
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persons, for such considerations, from such sources and upon such terms and
conditions as it may, from time to time, determine upon, subject only to the
restrictions, limitations, conditions and requirements imposed by the
Corporation Law, other applicable laws and these Restated Articles of
Incorporation, as the same may, from time to time, be amended. Shares of the
Corporation purchased, redeemed or otherwise acquired by it shall constitute
authorized but unissued shares, unless prior to any such purchase, redemption or
other acquisition, or within thirty (30) days thereafter, the Board of Directors
adopts a resolution providing that such shares constitute authorized and issued
but not outstanding shares.
The Board of Directors of the Corporation has authority to authorize
and direct the issuance by the Corporation of shares at such times, in such
amounts, to such persons, for such considerations and upon such terms and
conditions as it may, from to time, determine upon, subject only to the
restrictions, limitations, conditions and requirements imposed by the
Corporation Law, other applicable laws and these Restated Articles of
Incorporation, as the same may, from time to time, be amended. Shares may be
disposed of, issued and sold to such persons, firms or corporations as the Board
of Directors may determine, without any preemptive or other right on the part of
the owners or holders of other shares of the Corporation to acquire such shares
by reason of their ownership of such other shares.
ARTICLE VI
Directors
Section 6.1. Number. The number of Directors comprising the Board of
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Directors at the time of adoption of these Restated Articles of Incorporation is
three (3), and the number of Directors shall be fixed by the By-Laws and may be
changed from time to time by amendment to the By-Laws, but which number shall in
no event be greater than twelve (12).
Section 6.2. Qualifications. Directors need not be shareholders of the
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Corporation or residents of this or any other state in the United States.
Section 6.3. Vacancies. Vacancies occurring in the Board of Directors
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shall be filled in the manner provided in the By-Laws or, if the By-Laws do
not provide for the filling of vacancies, in the manner provided by the
Corporation Law. The By-Laws may also provide that in certain
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circumstances specified therein, vacancies occurring in the Board of Directors
may be filled by vote of the shareholders at a special meeting called for that
purpose or at the next annual meeting of shareholders.
Section 6.4. Liability of Directors. A Director's responsibility to the
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Corporation shall be limited to discharging his or her duties as a Director,
including his duties as a member of any committee of the Board of Directors upon
which he or she may serve, in good faith, with the care an ordinarily prudent
person in a like position would exercise under similar circumstances, and in a
manner the Director reasonably believes to be in the best interests of the
Corporation, all based on the facts then known to the Director.
In discharging his or her duties, a Director is entitled to rely on
information, opinions, reports, or statements, including financial statements
and other financial data, if prepared or presented by:
(a) One (1) or more officers or employees of the Corporation whom the
Director reasonably believes to be reliable and competent in the matters
presented;
(b) Legal counsel, public accountants, or other persons as to matters
the Director reasonably believes are within such person's professional or
expert competence; or
(c) A committee of the Board of which the Director is not a member if
the Director reasonably believes the committee merits confidence;
but a Director is not acting in good faith if the Director has knowledge
concerning the matter in question that makes reliance otherwise permitted by
this Section 6.4 unwarranted. A Director may, in considering the best interests
of the Corporation, consider the effects of any action on shareholders,
employees, suppliers and customers of the Corporation, and communities in which
offices or other facilities of the corporation are located, and any other
factors the Director considers pertinent.
A Director shall not be liable for any action taken as a Director, or
any failure to take any action, unless (a) the Director has breached or failed
to perform the duties of the Director's office in compliance with this Section
6.4, and (b) the breach or failure to perform constitutes willful misconduct or
recklessness.
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Section 6.5. Removal of Directors. Any one or more of the members of
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the Board of Directors may be removed only for good cause at a meeting of the
Board of Directors for which notice of the purpose of the meeting has been
given, by a vote of at least a majority of all persons then serving as
Directors. In addition, any one or more of the members of the Board of Directors
may be removed only for good cause at a meeting of the shareholders called
expressly for that purpose, by the affirmative vote of the holders of
outstanding shares representing at least sixty-six and two-thirds percent
(66-2/3%) of all the votes then entitled to be cast at an election of Directors.
No Director may be removed except as provided in this Section 6.5.
ARTICLE VII
Provisions for Regulation of Business
And Conduct of Affairs of Corporation
Section 7.1. By-Laws. The Board of Directors shall have the exclusive
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power to make, alter, amend or repeal, or to waive provisions of, the By-Laws of
the Corporation by the affirmative vote of a majority of the entire number of
Directors at the time, except as expressly provided by the Corporation Law.
Provisions for the regulation of the business and management of the affairs of
the Corporation not stated in these Restated Articles of Incorporation may be
stated in the By-Laws. The Board of Directors may adopt Emergency By-Laws of
the Corporation and shall have the exclusive power (except as may otherwise be
provided therein) to make, alter, amend or repeal, or to waive provisions of,
the Emergency By-Laws by the affirmative vote of a majority of the entire
number of Directors at such time.
Section 7.2. Interest of Directors. (a) A conflict of interest
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transaction is a transaction with the Corporation in which a Director of the
Corporation has a direct or indirect interest. A conflict of interest
transaction is not voidable by the Corporation solely because of the Director's
interest in the transaction if any one (1) of the following is true:
(1) The material facts of the transaction and the Director's interest
were disclosed or known to the Board of Directors or a committee of the
Board of Directors and the Board of Directors or committee authorized,
approved, or ratified the transaction.
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(2) The material facts of the transaction and the Director's interest
were disclosed or known to the shareholders entitled to vote and they
authorized, approved, or ratified the transaction.
(3) The transaction was fair to the Corporation.
(b) For purposes of this Section 7.2, a Director of the Corporation has an
indirect interest in a transaction if:
(1) Another entity in which the Director has a material financial
interest or in which the Director is a general partner is a party to the
transaction; or
(2) Another entity of which the Director is a director, officer, or
trustee is a party to the transaction and the transaction is, or is
required to be, considered by the Board of Directors of the Corporation.
(c) For purposes of Section 7.2(a)(l), a conflict of interest transaction
is authorized, approved, or ratified if it receives the affirmative vote of a
majority of the Directors on the Board of Directors (or on the committee) who
have no direct or indirect interest in the transaction, but a transaction may
not be authorized, approved, or ratified under this section by a single
Director. If a majority of the Directors who have no direct or indirect interest
in the transaction vote to authorize, approve, or ratify the transaction, a
quorum shall be deemed present for the purpose of taking action under this
Section 7.2. The presence of, or a vote cast by, a Director with a direct or
indirect interest in the transaction does not affect the validity of any action
taken under Section 7.2(a)(l), if the transaction is otherwise authorized,
approved, or ratified as provided in such subsection.
(d) For purposes of Section 7.2(a)(2), a conflict of interest transaction
is authorized, approved, or ratified if it receives the affirmative vote of the
holders of shares representing a majority of the votes entitled to be cast.
Shares owned by or voted under the control of a Director who has a direct or
indirect interest in the transaction, and shares owned by or voted under the
control of an entity described in Section 7.2(b), may be counted in such a vote
of shareholders.
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(e) This Section 7.2 shall not be construed to require authorization,
approval or ratification by the shareholders of any conflict of interest
transaction, or to invalidate any such transaction, that would otherwise be
valid under the common and statutory law applicable thereto.
Section 7.3. Indemnification of Officers, Directors and Other
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Eligible Persons.
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(a) To the extent not inconsistent with applicable law, every Eligible
Person shall be indemnified by the Corporation against all Liability and
reasonable Expense that may be incurred by him or her in connection with or
resulting from any Claim, (i) if such Eligible Person is Wholly Successful with
respect to the Claim, or (ii) if not Wholly Successful, then if such Eligible
Person is determined, as provided in either Section 7.3(f) or 7.3(g), to have
acted in good faith, in what he or she reasonably believed to be the best
interests of the Corporation or at least not opposed to its best interests and,
in addition, with respect to any criminal claim is determined to have had
reasonable cause to believe that his or her conduct was lawful or had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any Claim, by judgment, order, settlement (whether with or
without court approval), or conviction or upon a plea of guilty or of nolo
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contendere, or its equivalent, shall not create a presumption that an Eligible
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Person did not meet the standards of conduct set forth in clause (ii) of this
subsection (a). The actions of an Eligible Person with respect to an employee
benefit plan subject to the Employee Retirement Income Security Act of 1974
shall be deemed to have been taken in what the Eligible Person reasonably
believed to be the best interests of the Corporation or at least not opposed to
its best interests if the Eligible Person reasonably believed he or she was
acting in conformity with the requirements of such Act or he or she reasonably
believed his or her actions to be in the interests of the participants in
or beneficiaries of the plan.
(b) The term "Claim" as used in this Section 7.3 shall include every
pending, threatened or completed claim, action, suit or proceeding and all
appeals thereof (whether brought by or in the right of this Corporation or any
other corporation or otherwise), civil, criminal, administrative or
investigative, formal or informal, in which an Eligible Person may become
involved, as a party or otherwise:
(i) by reason of his or her being or having been an Eligible Person,
or
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(ii) by reason of any action taken or not taken by him or her in his or
her capacity as an Eligible Person, whether or not he or she continued in
such capacity at the time such Liability or Expense shall have been
incurred.
(c) The term "Eligible Person" as used in this Section 7.3 shall mean every
person (and the estate, heirs and personal representatives of such 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,
agent or fiduciary of another foreign or domestic corporation, partnership,
joint venture, trust, employee benefit plan or other organization or entity,
whether for profit or not. An Eligible Person shall also be considered to have
been serving an employee benefit plan at the request of the Corporation if his
or her duties to the Corporation also imposed duties on, or otherwise involved
services by, him or her to the plan or to participants in or beneficiaries of
the plan.
(d) The terms "Liability" and "Expense" as used in this Section 7.3 shall
include, but shall not be limited to, counsel fees and disbursements and amounts
of judgments, fines or penalties against (including excise taxes assessed with
respect to an employee benefit plan), and amounts paid in settlement by or on
behalf of, an Eligible Person.
(e) The term "Wholly Successful" as used in this Section 7.3 shall mean (i)
termination of any Claim against the Eligible Person in question without any
finding of liability or guilt against him or her, (ii) approval by a court or
agency, with knowledge of the indemnity herein provided, of a settlement of any
Claim, or (iii) the expiration of a reasonable period of time after the
threatened making of any Claim without commencement of an action, suit or
proceeding and without any payment or promise made to induce a settlement.
(f) Every Eligible Person claiming indemnification hereunder (other than
one who has been Wholly Successful with respect to any Claim) shall be entitled
to indemnification (i) if special independent legal counsel, which may be
regular counsel of the Corporation or other disinterested person or persons, in
either case selected by the Board of Directors, whether or not a disinterested
quorum exists (such counsel or person or persons being hereinafter called the
"Referee"), shall deliver to the Corporation a written finding that such
Eligible Person has met the standards of conduct set forth in Section
7.3(a)(ii), and (ii) if the Board of Directors, acting upon such written
finding, so determines. The Board of
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Directors shall, if an Eligible Person is found to be entitled to
indemnification pursuant to the preceding sentence, also determine the
reasonableness of the Eligible Person's Expenses. The Eligible Person claiming
indemnification shall, if requested, appear before the Referee, answer questions
that the Referee deems relevant and shall be given ample opportunity to present
to the Referee evidence upon which he or she relies for indemnification. The
Corporation shall, at the request of the Referee, make available facts, opinions
or other evidence in any way relevant to the Referee's finding that are within
the possession or control of the Corporation.
(g) If an Eligible Person claiming indemnification pursuant to Section
7.3(f) is found not to be entitled thereto, or if the Board of Directors fails
to select a Referee under Section 7.3(f) within a reasonable amount of time
following a written request of an Eligible Person for the selection of a
Referee, or if the Referee or the Board of Directors fails to make a
determination under Section 7.3(f) within a reasonable amount of time following
the selection of a Referee, the Eligible Person may apply for indemnification
with respect to a Claim to a court of competent jurisdiction, including a court
in which the Claim is pending against the Eligible Person. On receipt of an
application, the court, after giving notice to the Corporation and giving the
Corporation ample opportunity to present to the court any information or
evidence relating to the claim for indemnification that the Corporation deems
appropriate, may order indemnification if it determines that the Eligible Person
is entitled to indemnification with respect to the Claim because such Eligible
Person met the standards of conduct set forth in Section 7.3(a)(ii). If the
court determines that the Eligible Person is entitled to indemnification, the
court shall also determine the reasonableness of the Eligible Person's Expenses.
(h) The rights of indemnification provided in this Section 7.3 shall be in
addition to any rights to which any Eligible Person may otherwise be entitled.
Irrespective of the provisions of this Section 7.3, the Board of Directors may,
at any time and from time to time, (i) approve indemnification of any Eligible
Person to the full extent permitted by the provisions of applicable law at the
time in effect, whether on account of past or future transactions, and (ii)
authorize the Corporation to purchase and maintain insurance on behalf of any
Eligible Person against any Liability asserted against him or her and incurred
by 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.
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(i) Expenses incurred by an Eligible Person with respect to any Claim, may
be advanced by the Corporation (by action of the Board of Directors, whether or
not a disinterested quorum exists) prior to the final disposition thereof upon
receipt of an undertaking by or on behalf of the Eligible Person to repay such
amount unless he or she is determined to be entitled to indemnification.
(j) The provisions of this Section 7.3 shall be deemed to be a contract
between the Corporation and each Eligible Person, and an Eligible Person's
rights hereunder shall not be diminished or otherwise adversely affected by any
repeal, amendment or modification of this Section 7.3 that occurs subsequent to
such person becoming an Eligible Person.
(k) The provisions of this Section 7.3 shall be applicable to Claims made
or commenced after the adoption hereof, whether arising from acts or omissions
to act occurring before or after the adoption hereof.
ARTICLE VIII
Miscellaneous Provisions
Section 8.1. Amendment or Repeal. Except as otherwise expressly provided
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for in these Restated Articles of Incorporation, the Corporation shall be
deemed, for all purposes, to have reserved the right to amend, alter, change or
repeal any provision contained in these Restated Articles of Incorporation to
the extent and in the manner now or hereafter permitted or prescribed by
statute, and all rights herein conferred upon shareholders are granted subject
to such reservation.
Section 8.2. Redemption of Shares Acquired in Control Share Acquisitions.
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If and whenever the provisions of IC 23-1-42 apply to the Corporation, it is
authorized to redeem its securities pursuant to IC 23-1-42-10.
Section 8.3. Headings. The headings of the Articles and Sections of these
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Restated Articles of Incorporation have been inserted for convenience of
reference only and do not in any way define, limit, construe or describe the
scope or intent of any Article or Section hereof.
IN WITNESS WHEREOF, the undersigned officer of SC Acquisition Corp. has
executed these Restated Articles of Incorporation this 17th day of August, 1987.
/s/ WILLIAM J. BARRETT
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William J. Barrett, President
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IN WITNESS WHEREOF, the undersigned officer of Sc ACQUISITION CORP. has
executed these Articles of Restatement this 17th day of August, 1987.
/s/ WILLIAM J. BARRETT
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William J. Barrett, President
STATE OF INDIANA
State Form 28791
OFFICE OF THE SECRETARY OF STATE
To Whom These Presents Come, Greeting:
WHEREAS, there has been presented to me at this office, Articles of Merger,
merging,
SHELTER COMPONENTS, INC. 4275-134
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the non-survivor(s), into
SC ACQUISITION CORP. 8706-758
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an Indiana Corporation, the survivor, changing the corporate name to
SHELTER COMPONENTS OF INDIANA, INC.
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Said Articles of Merger have been prepared and signed in accordance with the
provisions of the Indiana Business Corporation Law;
WHEREAS, upon due examination, I find that it satisfies the requirements of
IC. 23-1-18-1:
NOW, THEREFORE, I, EVAN BAYH, Secretary of State of the State of Indiana hereby
certify that I have this day filed said Articles in this office.
Effective date the provisions will apply is February 5, 1988
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In Witness Whereof, I have hereunto set my hand
and affixed the seal of the State of Indiana, at
[SEAL APPEARS HERE] the City of Indianapolis,
this 5th day of
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February , 1988
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Evan Bayh, Secretary of State,
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By
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Deputy