Exhibit 3.1
AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
PHOENIX CONCRETE CUTTING, INC.
PHOENIX CONCRETE CUTTING, INC., a corporation organized and existing
under the laws of the State of Arizona, hereby adopts the following Amended and
Restated Articles of Incorporation and certifies as follows:
1. The date of filing of Phoenix Concrete Cutting, Inc.'s original
Articles of Incorporation with the Arizona Corporation Commission was May
31,1989.
2. This Amended and Restated Articles of Incorporation restates and
amends the Articles of Incorporation of this Corporation in its entirety, such
that the text of the Articles of Incorporation shall now read as follows:
ARTICLE I
Name and Known Place of Business. The name of the Corporation
is Penhall International Corp. (the "Corporation"). The known place of business
of the Corporation is 3639 E. Superior, Phoenix, Arizona 85040.
ARTICLE II
Statutory Agent. The name and address of the statutory agent
of the Corporation is:
C. George Bush
3301 E. Wood Street
Phoenix, AZ 85040
ARTICLE III
Purpose. The purpose of this Corporation is to transact any or
all lawful business for which corporations may be incorporated under the laws of
the State of Arizona, as they may be amended from time to time.
Initial Business. The business that the Corporation initially
intends to conduct is the ownership and operation of an operated equipment
rental business, and the transaction of any or all lawful business for which
corporations may be incorporated under the laws of the State of Arizona, as they
may be amended from time to time.
ARTICLE IV
Authorized Capital. The aggregate number of shares which the
Corporation is authorized to issue is 5,250,000 shares, divided into two (2)
classes consisting of (i) 5,000,000 shares of Common Stock, par value $0.01 per
share ("Common Stock"), and (ii) 250,000 shares of Preferred Stock, par value
$0.01 per share ("Preferred Stock").
The following is a statement of the designations, preferences,
qualifications, limitations, restrictions and the special or relative rights
granted to or imposed upon the shares of each such class and upon the shares of
each series of Preferred Stock.
(A) COMMON STOCK
(1) Dividends. Holders of Common Stock will
be entitled to receive such dividends as may be declared by
the Board of Directors.
(2) Transfers. The Corporation will not
close its books against the transfer of any share of Common
Stock.
(3) Distribution of Assets. In the event of
the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, holders of Common Stock will be
entitled to receive all of the remaining assets of the
Corporation available for distribution to its stockholders
after all amounts to which the holders of Preferred Stock are
entitled have been paid or set aside in cash for payment.
(4) Voting Rights. The holders of Common
Stock shall have the general right to vote for all purposes,
including the election of directors, as provided by law. Each
holder of Common Stock shall be entitled to one vote for each
share thereof held.
(B) PREFERRED STOCK
(1) Issue in Series. Preferred Stock may be
issued from time to time in one or more series, each such
series to have the terms stated herein and in the resolution
of the Board of Directors of the Corporation providing for its
issue. All shares of any one series of Preferred Stock will be
identical, but shares of different series of Preferred Stock
need not be identical or rank equally except insofar as
provided by law or herein.
(2) Creation of Series. The Board of
Directors will have authority by resolution to cause to be
created one or more series of Preferred Stock, and to
determine and fix with respect to each series prior to the
issuance of any shares of the series to which such resolution
relates:
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(a) The distinctive designation of the
series and the number of shares which will constitute
the series, which number may be increased or
decreased (but not below the number of shares then
outstanding) from time to time by action of the Board
of Directors;
(b) The dividend rate and the times
of payment of dividends on the shares of the series,
whether dividends will be cumulative, and if so, from
what date or dates;
(c) The price or prices at which,
and the terms and conditions on which, the shares of
the series may be redeemed at the option of the
Corporation;
(d) Whether or not the shares of
the series will be entitled to the benefit of a
retirement or sinking fund to be applied to the
purchase or redemption of such shares and, if so
entitled, the amount of such fund and the terms and
provisions relative to the operation thereof;
(e) Whether or not the shares of
the series will be convertible into, or exchangeable
for, any other shares of stock of the Corporation or
other securities, and if so convertible or
exchangeable, the conversion price or prices, or the
rates of exchange, and any adjustments thereof, at
which such conversion or exchange may be made, and
any other terms and conditions of such conversion or
exchange;
(f) The rights of the shares of the
series in the event of voluntary or involuntary
liquidation, dissolution or winding up of the
Corporation;
(g) Whether or not the shares of
the series will have priority over or be on a parity
with or be junior to the shares of any other series
or class in any respect or will be entitled to the
benefit of limitations restricting the issuance of
shares of any other series or class having priority
over or being on a parity with the shares of such
series in any respect, or restricting the payment of
dividends on or the making of other distributions in
respect of shares of any other series or class
ranking junior to the shares of the series as to
dividends or assets, or restricting the purchase or
redemption of the shares of any such junior series or
class, and the terms of any such restriction;
(h) Whether the series will have
voting rights, in addition to any voting rights
provided by law, and, if so, the terms of such voting
rights; and
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(i) Any other preferences,
qualifications, privileges, options and other
relative or special rights and limitations of that
series.
(3) Dividends. Holders of Preferred Stock
shall be entitled to receive, when and as declared by the
Board of Directors, out of funds legally available for the
payment thereof, dividends at the rates fixed by the Board of
Directors for the respective series, and no more, before any
dividends shall be declared and paid, or set apart for
payment, on Common Stock with respect to the same dividend
period.
(4) Preference on Liquidation. In the event
of the voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, holders of each series of
Preferred Stock will be entitled to receive the amount fixed
for such series plus, in the case of any series on which
dividends will have been determined by the Board of Directors
to be cumulative, an amount equal to all dividends accumulated
and unpaid thereon to the date of final distribution whether
or not earned or declared before any distribution shall be
paid, or set aside for payment, to holders of Common Stock. If
the assets of the Corporation are not sufficient to pay such
amounts in full, holders of all shares of Preferred Stock will
participate in the distribution of assets ratably in
proportion to the full amounts to which they are entitled or
in such order or priority, if any, as will have been fixed in
the resolution or resolutions providing for the issue of the
series of Preferred Stock. Neither the merger nor
consolidation of the Corporation into or with any other
corporation, nor a sale, transfer or lease of all or part of
its assets, will be deemed a liquidation, dissolution or
winding up of the Corporation within the meaning of this
paragraph except to the extent specifically provided for
herein.
(5) Redemption. The Corporation, at the
option of the Board of Directors, may redeem all or part of
the shares of any series of Preferred Stock on the terms and
conditions fixed for such series.
(6) Voting Rights. Except as otherwise
required by law or as otherwise provided herein, the holders
of Preferred Stock shall have no voting rights and shall not
be entitled to any notice of meeting of stockholders.
ARTICLE V
Prohibitions and Restrictions Imposed by Indebtedness. To the
extent that any action required to be taken by the Corporation under this
Amended and Restated Articles of Incorporation shall be prohibited or restricted
by the terms of any contract or instrument to which the Corporation is a party
in respect of the incurrence of indebtedness, such Corporation's actions shall
be delayed until such time as such prohibition or restriction is no longer in
force.
ARTICLE VI
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Bylaws. In furtherance and not in limitation of the powers
conferred by statute, the By-Laws of the Corporation, except as otherwise
specifically provided therein, may be adopted, amended or repealed by the
affirmative vote of the majority of the Board of Directors of the Corporation or
by the vote of the holders of record of a majority of the outstanding voting
stock of the Corporation.
ARTICLE VII
Consent of Stockholders in Lieu of Meeting. Any action
required to be taken, or which may be taken, at any meeting of stockholders may
be taken without a meeting, without prior notice and without a vote, if a
consent or consents in writing, setting forth the action so taken, shall be
signed by the holders of shares of outstanding stock having not less than the
minimum number of votes that would be necessary to authorize or take such action
at a meeting at which all shares of stock entitled to vote thereon were present
and voted and shall be delivered to the Corporation by delivery to its statutory
place of business in the State of Arizona, its principal place of business, or
an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded; provided that prompt
notice of the taking of corporate action without a meeting by less than
unanimous written consent shall be given to those stockholders who have not
consented in writing.
ARTICLE VIIII
Number and Election of Directors. The affairs of this
Corporation shall be conducted by a Board of Directors of not less than three
and no more than seven persons, each of whom shall hold office for such terms
and be elected in such manner as shall be designated in the By-Laws of the
Corporation. The number of directors from time to time shall be fixed by, or in
the manner provided by, the By-Laws of the Corporation, the initial size of the
Board shall be three and the following persons shall be the directors until the
next annual meeting of shareholders, or until their successors are elected and
qualified:
Bruce C. Bruckmann
c/o Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
Harold O. Rosser II
c/o Bruckmann, Rosser, Sherrill & Co., Inc.
126 East 56th Street, 29th Floor
New York, New York 10022
John T. Sawyer
c/o Penhall Rental Corp.
1801 Penhall Way
Anaheim, California 92803
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ARTICLE IX
Right to Amend. The Corporation reserves the right to amend
any provision contained in this Amended and Restated Articles of Incorporation
and in any articles of amendment amendatory hereof as may from time to time be
in effect in the manner now or hereafter prescribed by law, and all rights
conferred on stockholders or others hereunder are granted subject to such
reservation.
ARTICLE X
Limitation on Liability. The Directors of the Corporation
shall be entitled to the benefits of all limitations on the liability of
directors generally that are now or hereafter become available under the Arizona
Business Corporation Act. Without limiting the generality of the foregoing, no
director of the Corporation shall be liable to the Corporation or its
stockholders for monetary damages for any action taken or any failure to take
any action as a director, except liability for any of the following:
(i) the amount of a financial benefit received by a director
to which the director is not entitled;
(ii) an intentional infliction to harm on the Corporation or
its stockholders;
(iii) a violation of Section 10-833 of the Arizona Business
Corporation Act; or
(iv) an intentional violation of criminal law.
Any repeal or modification of this Article X shall be
prospective only, and shall not affect, to the detriment of any Director, any
limitation on the personal liability of a director of the Corporation existing
at the time of such repeal or modification.
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IN WITNESS WHEREOF, said Corporation has caused this Amended
and Restated Articles of Incorporation to be signed by its President and
attested by its Secretary, and has caused its corporate seal to be affixed
hereto, this 4th day of August 1998.
PHOENIX CONCRETE CUTTING, INC.
By: /s/ C. George Bush
-------------------------------------
C. George Bush
President
(Corporate Seal)
ATTEST:
By: /s/ David Neal
--------------------------------
David Neal
Secretary
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