Exhibit 3.13(i)
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ARTICLES OF INCORPORATION
OF
FALCONITE, INC.
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Pursuant to the provisions of The Illinois Business Corporation Act of
1983, the undersigned incorporator hereby adopts the following Articles of
Incorporation:
ARTICLE I
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The name of the Corporation is Falconite, Inc.
ARTICLE II
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The address, including street and number, of the Corporation's initial
registered office in this State is 208 S. LaSalle Street, Chicago, Illinois
60607, County of Cook, and the name of its initial registered agent at such
address is CT Corporation System.
ARTICLE III
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The Corporation is formed for the purpose of transacting any or all lawful
businesses which may be conducted by corporations incorporated under The
Illinois Business Corporation Act of 1983.
ARTICLE IV
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4.1 The Corporation shall have authority to issue the following shares:
(1) Fifty Million (50,000,000) shares of Common Stock having a par value of
One Cent ($0.01) per share; and
(2) One Million (1,000,000) shares of Preferred Stock having a par value of
One Cent ($0.01) per share ("Preferred Stock").
Dividends on outstanding shares of Preferred Stock shall be paid or
declared and set apart for payment before any dividends shall be paid or
declared and set apart for payment on the Common Stock with respect to the same
dividend period. Upon any voluntary or involuntary dissolution or liquidation
of the Corporation, the rights of the holders of the Common Stock shall be
junior and subordinate to the rights of the holders of the Preferred Stock.
(a) The Board of Directors, by adoption of an authorizing resolution,
may cause Preferred Stock to be issued from time to time in one or more series.
(b) The Board of Directors, by adoption of an authorizing resolution
with regard to the shares of any series of Preferred Stock, may:
(1) Fix the distinctive serial designation of the shares;
(2) Fix the dividend rate, if any;
(3) Fix the date from which dividends on shares issued before the
date for payment of the first dividend shall cumulate, if any:
(4) Fix the redemption price and terms of redemption, if any;
(5) Fix the amount payable per share in the event of dissolution
or liquidation of the Corporation, if any;
(6) Fix the terms and amounts of any sinking fund to be used for
the purchase or redemption of shares, if any;
(7) Fix the terms and conditions under which the shares may be
converted, if any;
(8) Provide whether such shares shall be nonvoting, or shall have
full or limited voting rights or voting rights contingent upon the
occurrence of specified events, and the rights, if any, of such shares
to vote as a class on some or all matters on which such shares may be
entitled to vote; and
(9) Establish any other preferences, qualifications, limitations,
restrictions and special or relative rights with respect to such
series not required by law.
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4.2 Except as otherwise required by The Illinois Business Corporation Act
of 1983, whenever the holders of shares of stock of the Corporation shall be
entitled to vote as a class with respect to any matter, the affirmative vote of
the holders of a majority of the outstanding shares of such class shall be
required to constitute the act of such class. There shall be no right to
cumulative voting in the election of directors.
ARTICLE V
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No holder of shares of any class of stock of the Corporation, either now or
hereafter authorized or issued, shall have any preemptive or preferential right
of subscription to any shares of any class of stock of the Corporation, either
now or hereafter authorized, or to any securities convertible into stock of any
class of the Corporation, issued or sold, nor any right of subscription to any
such security, other than such, if any, as the Board of Directors in its
discretion may from time to time determine and at such prices as the Board of
Directors may from time to time determine and at such prices as the Board of
Directors may from time to time fix, pursuant to the authority, conferred by
these Articles of Incorporation.
ARTICLE VI
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The class and number of shares which the Corporation proposes to issue
initially, and the consideration to be received by the Corporation therefor,
are:
Total consideration
to be received
Class Number of Shares therefor
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Common 100 $1,000
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ARTICLE VII
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7.1 The number of Directors to constitute the Board of Directors
shall be fixed, from time to time, at not less than three (3) nor more than ten
(10), by, or in the manner provided in, the By-Laws of the Corporation. The
Directors shall be divided into three classes: Class I, Class II and Class III.
The number of Directors in any such class shall not exceed the number of
Directors in any other class by more than one (1). The term of office of the
initial Class I Directors shall expire at the annual meeting of shareholders of
the Corporation in 1998; the term of office of the initial Class II Directors
shall expire at the annual meeting of shareholders of the Corporation in 1999;
and the term of office of the initial Class III Directors shall expire at the
annual meeting of shareholders of the Corporation in 2000; or in each case
thereafter until their respective successors are duly elected and qualified. At
each annual meeting beginning in 1998 the Directors elected to succeed those
whose terms then expire shall be identified as being of the same class as the
Directors they succeed and shall be elected for a term of three (3) years
expiring at the third succeeding annual shareholder meeting or thereafter until
their respective successors are duly elected and qualified. If the number of
Directors is changed, any increase or decease in the number of Directors shall
be apportioned among the classes so as to maintain the number of Directors in
each class as nearly as possible. Directors need not be residents of the State
of Illinois or shareholders of the Corporation.
7.2 Any vacancy of the Board (whether such vacancy is caused by
death, resignation, or removal for cause or is the result of a newly created
directorship) shall be filled by a majority of the Directors then in office.
Any Director elected to fill a vacancy in any class (whether such vacancy is
caused by death, resignation, or removal with cause, or is the result of an
increase in the number of Directors in such class) shall hold office for a term
which shall expire with the term of the Directors in such class.
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7.3 No Director may be removed without cause from office during such
Director's term of office. At a meeting called expressly for that purpose, any
Director may be removed by the shareholders for cause by the affirmative vote of
the holders of a majority of the shares entitled to vote at an election of
Directors.
ARTICLE VIII
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The duration of the Corporation is perpetual.
ARTICLE IX
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The Corporation reserves the right to amend, alter, change or repeal
any provision contained in these Articles of Incorporation. Amendments to the
Articles of Incorporation shall be made in the manner prescribed by The Illinois
Business Corporation Act of 1983, provided that any amendment to these Articles
of Incorporation which has not been approved by the Board of Directors of the
Corporation shall be effective only upon the affirmative vote of the holders of
at least two-thirds (2/3) of the outstanding shares of Common Stock, and two-
thirds (2/3) of the outstanding shares of each other class or series of stock
entitled to vote as a class or series (if any) with respect to such amendment.
The power to make, alter, amend, or repeal the By-Laws of the Corporation shall
be vested in the Board of Directors, unless otherwise provided in such By-Laws.
The Board of Directors shall have and exercise such further powers as are
provided it under present or future laws of the State of Illinois.
ARTICLE X
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A director shall have no personal liability to the Corporation or its
shareholders for monetary damages for breach of fiduciary duty as a director,
provided that the foregoing shall have no effect on a director's liability (i)
for any breach of the director's duty of loyalty to the Corporation or its
shareholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or
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a knowing violation of law, (iii) under Section 8.65 of the Illinois Business
Corporation Act of 1983, or (iv) for any transaction from which the director
derived an improper personal benefit.
ARTICLE XI
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11.1 The Corporation shall indemnify 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 (other than an action by or in the right of the Corporation) by
reason of the fact that he or she is or was a director, officer, employee or
agent of the Corporation, or who is or was serving at the request of the
Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such action,
suit or proceeding, if such person acted in good faith and in a manner he or she
reasonably believed to be in, or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction, or
upon a plea of nolo contenders or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interests of the
Corporation or, with respect to any criminal action or proceeding, that the
person had reasonable cause to believe that his or her conduct was unlawful.
11.2 The Corporation shall indemnify any person who was or is a
party, or is threatened to be made a party to any threatened, pending or
completed action or suit by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was a
director, officer, employee or agent of the Corporation, or is or was serving at
the request of the
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Corporation as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees) actually and reasonably incurred by such person in
connection with the defense or settlement of such action or suit, if such person
acted in good faith and in a manner he or she reasonably believed to be in, or
not opposed to the best interests of the Corporation, provided that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable for negligence or
misconduct in the performance of his or her duty to the Corporation, unless, and
only to the extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability, in view
of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses as the court shall deem proper.
11.3 To the extent that a director, officer, employee or agent of the
Corporation has been successful, on the merits or otherwise, in the defense of
any action, suit or proceeding referred to in Section 11.1 and 11.2, or in
defense of any claim, issue or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection therewith.
11.4 Any indemnification under Section 11.1 and 11.2 (unless ordered
by a court) shall be made by the Corporation only as authorized in the specific
case, upon a determination that indemnification of the director, officer,
employee or agent is proper in the circumstances because he or she has met the
applicable standard of conduct set forth in Section 11.1 or 11.2 Such
determination shall be made (1) by the Board of Directors by a majority vote of
a quorum consisting of directors who were not parties to such action, suit or
proceeding, or (2) if such a quorum is not obtainable, or even if obtainable, if
a quorum of disinterested directors so directs, by independent legal counsel in
a written opinion, or (3) by the shareholders.
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11.5 Expenses incurred in defending a civil or criminal action, suit
or proceeding may be paid by the Corporation in advance of the final disposition
of such action, suit or proceeding, as authorized by the Board of Directors in
the specific case, upon receipt of an undertaking by or on behalf of the
director, officer, employee or agent to repay such amount, unless it shall
ultimately be determined that he or she is entitled to be indemnified by the
Corporation as authorized in this Article.
11.6 This Article is intended to provide for indemnification to the
fullest extent permitted by law, as in effect on the date hereof or as hereafter
adopted or amended. The indemnification provided by this Article shall not be
deemed exclusive of any other rights to which those seeking indemnification may
be entitled under any other By-Law, agreement, vote of shareholders 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.
11.7 The Corporation may purchase and maintain insurance on behalf of
any person who is or was a director, officer, employee or agent of the
Corporation, or who is or was serving at the request of the Corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against any liability asserted against such
person and incurred by such person 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 such person against such liability under the provisions of this
Article.
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11.8 If the Corporation has paid indemnification or has advanced
expenses to a director, officer, employee or agent, the Corporation shall report
the indemnification or advance in writing to the shareholders with or before the
notice of the next shareholders meeting.
11.9 For purposes of this Article, references to "the Corporation"
shall include, in addition to the surviving corporation, any merging corporation
(including any corporation having merged with a merging corporation) absorbed in
a merger which, if its separate existence had continued, would have had the
power and authority to indemnify its directors, officers, and employees or
agents, so that any person who was a director, officer, employee or agent of
such merging corporation, or was serving at the request of such merging
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 surviving
corporation as such person would have with respect to such merging corporation
if its separate existence had continued.
11.10 For 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 an 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. A person who acted in good faith and in a manner he or she
reasonably believed to be in the best interests 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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The undersigned incorporator hereby declares, under penalties of
perjury, that the statements made in the foregoing Articles of Incorporation are
true.
Dated December 24, 1996
/s/ RONALD E. HAGLOF
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Ronald E. Haglof, Incorporator
One Mercantile Center
St. Louis, Missouri 63101
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