Exhibit 3.6
BYLAWS
OF
PENHALL COMPANY
ARTICLE I OFFICES
Section 1 Principal Offices........................... 1
Section 2 Other Offices............................... 1
ARTICLE II MEETINGS OF SHAREHOLDERS
Section 1 Place of Meetings........................... 1
Section 2 Annual Meeting.............................. 1
Section 3 Special Meetings............................ 2
Section 4 Notice of Meetings of Shareholders.......... 2
Section 5 Manner of Giving Notice; Affidavit of
Notice...................................... 3
Section 6 Quorum...................................... 4
Section 7 Adjourned Meeting; Notice................... 4
Section 8 Voting...................................... 4
Section 9 Waiver of Notice or Consent by Absent
Shareholders................................ 5
Section 10 Shareholder Action by Written Consent
Without a Meeting........................... 6
Section 11 Record Date for Shareholder Notice,
Voting and Giving Consents.................. 7
Section 12 Proxies..................................... 8
Section 13 Inspectors of Election...................... 8
ARTICLE III DIRECTORS
Section 1 Powers...................................... 9
Section 2 Number and Qualification of Directors....... 9
Section 3 Election and Term of Office of Directors.... 10
Section 4 Vacancies................................... 10
Section 5 Place of Meetings and Meetings by Telephone. 11
Section 6 Regular Meetings............................ 11
Section 7 Special Meetings............................ 11
Section 8 Quorum...................................... 12
Section 9 Waiver of Notice............................ 12
Section 10 Adjournment................................. 12
Section 11 Notice of Adjournment....................... 12
Section 12 Action Without Meeting...................... 13
Section 13 Fees and Compensation of Directors.......... 13
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ARTICLE IV COMMITTEES
Section 1 Committees of Directors..................... 13
Section 2 Meetings and Action of Committees........... 14
ARTICLES V OFFICERS
Section 1 Officers.................................... 14
Section 2 Election of Officers........................ 15
Section 3 Subordinate Officers........................ 15
Section 4 Removal and Resignation of Officers......... 15
Section 5 Vacancies in Offices........................ 15
Section 6 Chairman of the Board....................... 16
Section 7 President................................... 16
Section 8 Vice-Presidents............................. 16
Section 9 Secretary................................... 16
Section 10 Treasurer and Chief Financial Officer....... 17
ARTICLE VI INDEMNIFICATION OF DIRECTORS,
OFFICERS, EMPLOYEES AND OTHER AGENTS........ 18
ARTICLE VII RECORDS AND REPORTS
Section 1 Maintenance and Inspection of Share
Register.................................... 18
Section 2 Maintenance and Inspection of Bylaws........ 19
Section 3 Maintenance and Inspection of Other
Corporate Records........................... 19
Section 4 Inspection by Directors..................... 20
Section 5 Annual Report to Shareholders............... 20
Section 6 Financial Statements........................ 20
Section 7 Annual Statement of General Information..... 21
ARTICLE VIII GENERAL CORPORATE MATTERS
Section 1 Record Date for Purposes Other Than
Notice and Voting........................... 22
Section 2 Checks, Drafts, Evidence of Indebtedness.... 22
Section 3 Execution of Corporate Contracts and
Instruments................................. 22
Section 4 Certificates for Shares..................... 23
Section 5 Lost Certificates........................... 23
Section 6 Representation of Shares of Other
Corporations................................ 23
Section 7 Construction and Definitions................ 24
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ARTICLE IX AMENDMENTS
Section 1 Amendment by Shareholders................... 24
Section 2 Amendment by Directors...................... 24
CERTIFICATE OF SECRETARY.................................... 25
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BYLAWS
OF
PENHALL COMPANY
ARTICLE I
Section 1. Principal Offices
---------- -----------------
The Board of Directors shall fix the location of the principal executive
office of the Corporation at any place within or outside the State of
California. If the principal executive office is located outside the State of
California and the Corporation has one or more business offices in the State
of California, the Board of Directors shall fix and designate a principal
business office in the State of California.
Section 2. Other Offices
---------- -------------
The Board of Directors may at any time establish branch or subordinate
offices at any place or places it may choose from time to time.
ARTICLE II
MEETINGS OF SHAREHOLDERS
Section 1. Place of Meetings
---------- -----------------
Meetings of shareholders shall be held at any place within or outside
the State of California designated by the Board of Directors. In the absence
of any such designation, meetings of shareholders shall be held at the
principal executive office of the Corporation.
Section 2. Annual Meeting
---------- --------------
The annual meeting of shareholders shell be held on September 30 at
11:00 a.m., or at such other date and time as the Board of Directors may
determine. However, if this day falls on a legal holiday, the meeting shall
be held at the same time and place on the next succeeding full business day.
The annual meeting shall be held at the Corporation's
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principal offices or at any other location as may be determined
by the Board of Directors. At each annual meeting, directors shall
be elected and any other proper business may be transacted.
Section 3. Special Meetings
---------- ----------------
A special meeting of the shareholders may be called at any time by the
Board of Directors, the Chairman of the Board of Directors, the President, or
one or more shareholders holding shares in the aggregate entitled to cast not
less than 10% of the votes at such meeting.
If a special meeting is called by any person or persons other than the
Board of Directors, the request shall be in writing, specifying the time of
such meeting and the general nature of the business proposed to be
transacted, and shall be delivered personally or sent by registered mail or
by telegraphic or other facsimile transmission to the Chairman of the Board
of Directors, the President, any Vice-President or the Secretary of the
Corporation. The officer receiving the request shall promptly cause notice to
be given to the shareholders entitled to vote, in accordance with the
provisions of Section 4 and 5 of this Article II, that a meeting will be held
at the time requested by the person or persons calling the meeting, not fewer
than 35 days or more than 60 days after the receipt of the request, the
person or persons requesting the meeting may give the notice. Nothing
contained in this paragraph of this Section 3 shall be construed, fixing or
affecting the time when a meeting of shareholders called by action of the
Board of Directors may be held.
Section 4. Notice of Meetings of Shareholders
---------- ----------------------------------
All notices of meetings of shareholders shall be sent or otherwise
given in accordance with Section 5 of this Article II not less than 10 days
or more than 60 days before the date of the meeting. Such notice shall
specify the place, date, and hour of the meeting and (i) in the case of a
special meeting, the general nature of the business to be transacted, or (ii)
in the case of annual meeting, those matters that the Board of Directors, at
the time of giving the notice, intends to present for action by the
shareholders. The notice of any meeting at which directors are to be elected
shall include the name of any nominee or nominees whom, at the time of the
notice, management intends to present for election.
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If action is proposed to be taken at any meeting for approval of (i) a
contract or transaction in which a director has a direct or indirect
financial interest, pursuant to section 310 of the Corporation Code of
California, (ii) and amendment of the Articles of Incorporation, pursuant to
Section 902 of such Code, (iii) a reorganization, of the Corporation,
pursuant to section 1201 of such Code, (iv) an voluntary dissolution of the
Corporation, pursuant to section 1900 of such Code, or (v) a distribution in
dissolution other than in accordance with the rights of outstanding preferred
shares, pursuant to Section 2007 of such Code, the notice shall also state
the general nature of such proposal.
Section 5. Manner of Giving Notice;
---------- ------------------------
Affidavit of Notice
-------------------
Notice of any meeting of shareholders shall be given either personally
or by first-class mail or telegraphic or other written communication, charges
prepaid, addressed to each shareholder at the address of such shareholder
appearing on the books of the Corporation or given by the shareholder to the
Corporation for the purpose of notice. If no such address appears on the
books of the Corporation or is given, notice shall be deemed to have been
given if sent to a shareholder by first-class mail or telegraphic or other
written communication to the Corporation's principal executive office, or if
published at least once in a newspaper of general circulation in the county
where such office is located. Notice shall be deemed to have been given at
the time when delivered personally or deposited in the mail or sent by
telegram or other means of written communication.
If any notice addressed to a shareholder at the address of such
shareholder, appearing on the books of the Corporation is returned to the
Corporation by the United States Postal Service is unable to deliver such
notice to such shareholder at such address, each future notice and report
shall be deemed to have been duly given without further mailing if it shall
be available to the shareholder on written demand by the shareholder at the
principal executive office of the Corporation for a period of one year from
the date of the giving of such notice or report.
An affidavit of the mailing or other means of giving any notice of any
meeting of shareholders shall be executed by the Secretary, Assistant
Secretary or any transfer agent
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of the Corporation giving the notice and shall be filed and maintained in the
minutes book of the Corporation.
Section 6. Quorum
---------- ------
The presence in person or by proxy of the holders of a majority of the
shares entitled to vote at a meeting of shareholders shall constitute a
quorum for the transaction of business at such meeting. The shareholders in
attendance at a duly called or held meeting at which a quorum is present may
continue to do business until adjournment, notwithstanding the withdrawal of
enough shareholders to leave less that a quorum, of any action taken (other
that adjournment) is approved by at least a majority of the shares required
to constitute a quorum.
Section 7. Adjourned Meeting; Notice
---------- -------------------------
Any meeting of shareholders, annual or special, whether or not a quorum
is present, may be adjourned from time to time by the vote of the majority of
the shares represented at such meeting, either in person of by proxy; but in
the absence of a quorum, no other business may be transacted at such meeting,
except as provided in Section 6 of the Article II.
When any meeting of shareholders, annual or special, is adjourned to
another time or place, notice need not be given of the adjourned meeting if
the time and place are announced at a meeting at which the adjournment is
taken, unless a new record date for the adjourned meeting is fixed or unless
the adjournment is for more than 45 days from the date set for the original
meeting, in which case the Board of Directors shall set a new record date.
Notice of any such adjourned meeting shall be given to each shareholder of the
provisions of Section 4 and 5 of this Article II. At any adjourned meeting,
the Corporation may transact any business that might have been transacted at
the original meeting.
Section 8. Voting
---------- ------
The shareholders entitled to vote at any meeting of shareholders shall be
determined in accordance with the provisions of Section 11 of this Article
II, subject to the provisions of Section 702 to 704, inclusive, of the
Corporation Code of California (relating to voting shares held by a fiduciary
or in joint ownership). The shareholder's vote may be by voice vote or ballot;
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provided, however, that any election of directors must be by ballot if
demanded by any shareholder before the voting has begun. On any matter other
than the election of directors, any shareholder may vote part of the shares
in favor of the proposal and refrain from voting the remaining shares or vote
them against the proposal; but if a shareholder fails to specify the number
of shares such shareholder is voting affirmatively, it shall be presumed
conclusively that such shareholder's approving vote is with respect to all
shares that such shareholder is entitled to vote. Except as provided in
Section 6 of this Article II, the affirmative vote of a majority of the
shares represented and voting at a duly held meeting at which a quorum is
present (which shares required quorum) shall be the act of the shareholders,
unless the vote of a greater number or voting by classes is required by
California General Corporation Law or the Articles of Incorporation.
At a meeting of shareholders at which directors are to be elected, no
shareholder shall be entitled to cumulate votes (i.e., cast for any one or
more candidates a number of votes greater than the number of such
shareholder's shares) unless the candidates' names have been placed in
nomination prior to commencement of the voting and a shareholder has given
notice prior to commencement of the voting of such shareholder's intention to
cumulate votes. If any shareholder has given notice, every shareholder
entitled to vote may cumulate votes for candidates in the number of directors
to be elected multiplied by the number of votes to which such shareholder's
shares are entitled or distribute such shareholder's votes on the same
principle among any or all of the candidates as the shareholder thinks fit.
The candidates receiving the highest number of votes, up to the number of
directors to be elected, shall be elected.
Section 9. Waiver of Notice of Consent by Absent Shareholders
- ---------- --------------------------------------------------
the transactions of any meeting of shareholders, annual or special,
however called and noticed and whereever held, shall be as valid as though
they had occurred at a meeting duly held after regular call and notice, if a
quorum is present either in person or by proxy, and if, either before or
after such meeting, each person entitled to vote who was not present in
person or by proxy signs a written waiver of notice or a consent to a holding
of such meeting or an approval of the minutes thereof. Such waiver of notice
or consent need not specify either the business to be
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transacted or the purpose of any annual or special meeting of shareholders,
except that if action is taken or proposed to be taken for approval of any of
those matters specified in the second paragraph of Section 4 of this Article
II, the waiver of notice or consent shall state the general nature of the
proposal. All such waivers, consents or approvals shall be filed with the
corporate records or made a part of the minutes of the meeting.
Attendance by a person at a meeting shall also constitute a waiver of
notice of such meeting, except that when the person objects at the beginning
thereat because such meeting is not lawfully called or convened, and except
that attendance at a meeting is not a waiver of any right to object to the
consideration of matters not included in the notice of such meeting if an
objection is expressly made at such meeting.
Section 10. Shareholder Action by Written Consent Without A Meeting
- ----------- -------------------------------------------------------
Any action that may be taken at any annual or special meeting of
shareholders may be taken without a meeting and without prior notice if a
consent in writing, setting forth the action so taken, is signed by the
holders of outstanding shares 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 entitled to vote on such action were present and noted. In
the case of the election of directors, such a consent shall be effective only
if signed by the holders of a majority of the outstanding shares entitled to
vote for the election of directors; provided, however, that by the written
consent of the holders of a majority of the outstanding shares entitled to
vote for the election of directors, a director may be elected at any time to
fill a vacancy on the Board of Directors that has not been filled by the
directors. All such consents shall be filed with the Secretary of the
Corporation and shall be maintained in the corporate records. Any shareholder
giving a written consent or the shareholder's proxy holders or a transferee
of the shares or a personal representative of the shareholder or their
respective proxy holders may revoke the consent by a writing received by the
Secretary of the Corporation before written consents of the number of shares
required to authorize the proposed action have been filed with the Secretary.
If the consents of all shareholders entitled to vote have not been
solicited in writing, and if the unanimous written consent of all
shareholders has not been received,
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the Secretary shall give prompt notice of the corporate action approved by
the shareholders without a meeting. Such notice shall be given in the manner
specified in Section 5 of this Article II. In the case of approval of (i)
contracts or transaction in which a director has a direct or indirect
financial interest, pursuant to Section 310 of the Corporation Code of
California, (ii) indemnification of agents of the Corporation, pursuant to
Section 317 of such Code, (iii) a reorganization of the Corporation, pursuant
to Section 1201 of such Code, and (iv) a distribution in dissolution other
than in accordance with the rights of outstanding preferred shares, pursuant
to Section 2007 of such Code, such notice shall be given at least ten days
before the consummation of any action authorized by such approval.
Section 11. Record Date of Shareholder Notice, Voting and Giving Consents
- ----------- -------------------------------------------------------------
For purposes of determining the shareholders entitled to receive notice of
any meeting or to give consent to corporate action without a meeting, the
Board of Directors may fix in advance a record date, which shall not be more
than 60 days or less than 10 days before the date of any such meeting nor
more than 60 days before any such action without a meeting. In this event,
only shareholders of record on the date so fixed are entitled to receive
notice and to vote or to give consents, as the case may be, notwithstanding
any transfer of any shares on the books of the Corporation after the record
date, except as otherwise provided in the California General Corporation Law.
If the Board of Directors does not so fix a record date:
(a) The record date for determining shareholders entitled to receive
notice of or to vote at a meeting of shareholders shall be at the close of
business on the business day next preceding the day on which notice is given
or, if notice is waived, at the close of business on the business day next
preceding the date on which the meeting is held; or
(b) The record date for determining shareholders entitled to give consent
to corporate action in writing without a meeting, (i) when no prior action by
the Board of Directors has been taken, shall be the day on which the first
written consent is given, or (ii) when prior action of the Board has been
taken, shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to that action or at the close of
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business on the sixtieth day before the date of such other action, whichever
is later.
Section 12. Proxies
- ----------- -------
Every person entitled to vote for directors or on any other matter shall
have the right to do so either in person or by one or more agents authorized
by a written proxy signed by the person and filed with the Secretary of the
Corporation. A proxy shall be deemed signed if the shareholder's name is
placed on the proxy (whether by manual signature, typewriting, telegraphic
transmission or otherwise) by the shareholder or the shareholder's
attorney-in-fact. A validly executed proxy that does not state that it is
irrevocable shall continue in full force and effect unless (i) revoked by the
person executing it, before the vote pursuant to such proxy, by a writing
delivered to the Corporation stating that such proxy is revoked, or by a
subsequent proxy executed by, or attendance at the meeting and voting in
person by, the person executing such proxy; or (ii) written notice of the
death or incapacity of the maker of such proxy is received by the Corporation
before the vote pursuant to such proxy is counted; provided, however, that no
proxy shall be valid after the expiration of eleven months from the date of
the proxy unless otherwise provided in the proxy. The revocability of a proxy
that states on its face that is is irrevocable shall be governed by Section
705(e) and 705(f) of the Corporations Code of California.
Section 13. Inspectors of Election
- ----------- ----------------------
Before any meeting of shareholders, the Board of Directors may appoint any
persons other than nominees for office to act as inspectors of election at
the meeting or its adjournment. If no inspectors of election are so
appointed, the chairman of the meeting may, and on the request of any
shareholder or a shareholder's proxy shall, appoint inspectors of election at
the meeting. The number of such inspectors shall be either one or three. If
such inspectors are appointed at a meeting on the request of one or more
shareholders or proxies, the holders of a majority of shares or their proxies
present at the meeting shall determine whether one or three inspectors are to
be appointed. If any person appointed as inspector fails to appear or fails
or refuses to act, the chairman of the meeting may, and upon the request of
any shareholder or a shareholder's proxy shall, appoint a person to fill that
vacancy.
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Such inspectors shall:
(a) Determine the number of shares outstanding and the voting power of
each, the shares represented at the meeting, the existence of a quorum, and
the authenticity, validity, and effect of proxies;
(b) Receive votes, ballots or consents;
(c) Hear and determine all challenges and questions in any way arising
in connection with the right to vote;
(d) Count and tabulate all votes or consents;
(e) Determine when the polls shall close;
(f) Determine the results; and
(g) Do any other acts that may be proper to conduct the election or
vote with fairness to all shareholders.
ARTICLE III
DIRECTORS
Section 1. Powers
---------- ------
Subject to the provisions of the California General Corporation Law and
any limitations in the Articles of Incorporation and these Bylaws relating to
action required to be approved by the shareholders or by the outstanding
shares, the business and affairs of the Corporation shall be managed and all
corporate powers shall be exercised by or under the direction of the Board of
Directors.
Section 2. Number and qualification of Directors
---------- -------------------------------------
The authorized number of directors of the Corporation shall be three (3)
until changed by a duly adopted amendment to the Articles of Incorporation or
by an amendment to these Bylaws approved by the shareholders' provided,
however, that an amendment reducing the fixed number of directors to a number
less than three cannot be adopted if the votes cast against its adoption at a
meeting of the shareholder, or the shares not consenting in the case of
action by written consent, are equal to more than 16-2/3 percent of the
outstanding share entitled to vote.
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Section 3. Election and Term of Office of Directors
---------- ----------------------------------------
Directors shall be elected at each annual meeting of shareholders to
hold office until the next annual meeting. Each director, including a
director elected to fill a vacancy, shall hold office until the expiration of
the term for which elected and until a successor has been elected and
qualified.
Section 4. Vacancies
---------- ---------
Vacancies on the Board of Directors may be filled by approval of the
Board or, if the number of directors then in office is less than a quorum, by
(1) the unanimous written consent of directors then in office, (2) the
affirmative vote of a majority of the directors then in office at a meeting
held pursuant to notice or waivers of notice complying with Section 307 of
the Corporation Code, or (3) a sole remaining director; except that a vacancy
created by the removal a director by the vote or written consent of the
shareholders or by court order may be filled only by the vote of a majority of
the shares entitled to vote represented at a duly held meeting at which a
quorum is present, or by the written consent of holders of a majority of the
outstanding shares entitled to vote. Each director so elected shall hold
office until the next annual meeting of shareholders and until a successor
has been elected and qualified.
A vacancy or vacancies on the Board of Directors shall be deemed to
exist in the event of the death, resignation or removal of any director, or
if the Board of Directors by resolution declares vacant the office of a
director who has been declared of unsound mind by an order of court or
who has been convicted of a felony, or if the authorized number of directors
is increased, or if the shareholders fail, at any meeting of shareholders at
which any director or directors are elected, to elect the number of directors
to be elected at such meeting.
The shareholders may elect a director or directors at any time to fill
any vacancy or vacancies not filled by the directors, but any such election
by written consent shall require the consent of a majority of the outstanding
shares entitled to vote.
Any director may resign effective on giving written notice to the
Chairman of the Board of Directors, the President, the Secretary or the Board
of Directors, unless the notice specifies a later time for that resignation
to become effective. If the resignation of a director is effective at a later
time, the Board of Directors may elect a successor to take office when the
resignation becomes effective.
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No reduction of the authorized number of directors shall have the effect
of removing any director before the expiration of such director's term of
office.
Section 5. Place of Meetings and Meeting By Telephone
---------- ------------------------------------------
Regular meetings of the Board of Directors may be held at any place
within or outside the State of California that has been designated from time
to time by resolution of the Board. In the absence of such a designation,
regular meetings shall be held at the principal executive office of the
Corporation. Special meetings of the Board shall be held at any place within
or outside the State of California that has been designated in the notice of
the meeting or, if not stated in the notice or if there is no notice, at the
principal executive office of the Corporation. Any meeting, regular or
special, may be held by conference telephone or similar communication
equipment, so long as all directors participating in the meeting can hear one
another, and all such directors shall be deemed to be present in person at
the meeting.
Section 6. Regular Meetings
---------- ----------------
Regular meetings of the Board of Directors shall be held without call at
such time as shall from time to time be fixed by the Board of Directors. Such
regular meetings may be held without notice.
Section 7. Special Meetings
---------- ----------------
Special meetings of the Board of Directors for any purpose or purposes
may be called at any time by the Chairman of the Board of Directors, the
president, any Vice-President, the Secretary or any two directors.
Notice of the time and place of such special meetings shall be delivered
personally or by telephone to each director or sent by first-class mail or
telegram, charges prepaid, addressed to each director at such director's
address as is shown on the records of the Corporation. In case such notice is
mailed, it shall be deposited in the United States mail at least four days
before the time of the holding of such meeting. In case such notice is
delivered personally, or by telephone or telegram, it shall be delivered
personally or by telephone or to the telegraph company at least 48 hours
before the time of the holding of such meeting. Any oral notice given
personally or by
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telephone may be communicated either to the director or to a person at the
office of the director whom the person giving such notice has reason to
believe will promptly communicate it to such director. The notice need not
specify the purpose of the meeting or the place if the meeting is to be held
at the principal executive office of the Corporation.
Section 8. Quorum
---------- ------
A majority of the authorized number of directors shall constitute a
quorum for the transaction of business, except to adjourn as provided in
Section 10 of this Article III. Every act or decision done or made by a
majority of the directors present at a meeting duly held at which a quorum is
present shall be regarded as the act of the Board of Directors, subject to
the provisions of Section 310 of the Corporation Code of California (as to
approval of contracts or transactions in which a director has a direct or
indirect material financial interest), Section 311 of such Code (as to
appointment of committees) and Section 317(e) of such Code (as to
indemnification of directors). A meeting at which a quorum initially is
present may continue to transact business notwithstanding the withdrawal of
directors, provided any action taken is approved by at least a majority of
the required quorum for such meeting.
Section 9. Waiver of Notice
---------- ----------------
The transactions of any meeting of the Board of Directors, however
called and noticed, and wherever held, shall be as valid as though they had
occurred at a meeting duly held after regular call and notice if a quorum is
present and if, either before or after such meeting, each of the directors
not present signs a written waiver of notice, a consent to hold such meeting
or an approval of the minutes. The waiver of notice or consent need not
specify the purpose of such meeting. All such waivers, consent and approvals
shall also be deemed given to any director who attends the meeting without
protesting, before or at its commencement, the lack of notice to such
director.
Section 10. Adjournment
----------- -----------
A majority of the directors present, whether or not constituting a
quorum, may adjourn any meeting to another time and place.
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Section 11. Notice of Adjournment
----------- ---------------------
Notice of the time and place of holding an adjourned meeting need
not be given, unless the meeting is adjourned for more than 24 hours, in
which case notice of the time and place shall be given before the time of the
adjourned meeting in the manner specified in Section 7 of this Article III to
the directors who were not present at the time and the adjournment.
Section 12. Action Without Meeting
----------- ----------------------
Any action required or permitted to be taken by the Board of Directors
may be taken without a meeting if all members of the Board shall individually
or collectively consent in writing to such action. Such action by written
consent shall have the same force and effect as a unanimous vote of the Board
of Directors. Such written consent or consents shall be filled with the
minutes of the proceedings of the Board of Directors.
Section 13. Fees and Compensation of Directors
----------- ----------------------------------
Directors and members of committees may receive such compensation, if
any, for their services and such reimbursement of expenses as may be fixed or
determined by resolution of the Board of Directors. This Section 13 shall
not be construed to preclude any director from serving the Corporation in any
other capacity as an officer, agent, employee or otherwise, and receiving
compensation for such service.
ARTICLE IV
COMMITTEES
Section 1. Committees of Directors
---------- -----------------------
The Board of Directors may, by resolution adopted by a majority of the
authorized number of directors, designate one or more committees, each
consisting of two or more directors, to serve at the pleasure of the Board.
The Board may designate one or more directors as alternate members of any
such committee, who may replace any absent member at any meeting of such
committee. Any committee, to the extent provided in such a resolution of the
Board, shall have all the authority of the Board, except with respect to:
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(a) The approval of any action that, under the California General
Corporation law, also requires shareholders' approval or approval of the
outstanding shares;
(b) The filling of vacancies of the Board of Directors or in any
committee;
(c) The fixing of compensation of the directors for serving on the
Board of Directors or on any committee;
(d) The amendment or repeal of bylaws or the adoption of new bylaws;
(e) The amendment or repeal of any resolution of the Board of Directors
that by its express terms is not so amendable or repealable;
(f) A distribution to the shareholders of the Corporation, except at a
rate or in a periodic amount or within a price range determined by the Board
of Directors; and
(g) The appointment of any other committees of the Board of Directors
or the members of such committees.
Section 2. Meetings and Action of Committees
---------- ---------------------------------
Meetings and actions of committees shall be governed by, and held and
taken in accordance with, the provision of Sections 5 (place of meetings), 6
(regular meetings), 7 (special meetings), 8 (quorum), 9 (waiver of notice), 10
(adjournment), 11 (notice of adjournment), and 12 (action without meeting) of
Article III, with such changes in the context of such Bylaws as are necessary
to substitute the committee and its members for the Board of Directors and
its members, except that the time of regular meetings of committees may be
determined either by resolution of the Board of Directors or by resolution of
the committee; special meetings of committees also may be called by
resolution of the Board of Directors; and notice of special meetings of
committees also shall be given to all alternate members, who shall have the
right to attend all meetings of the committee. The Board of Directors may
adopt rules for the government of any committee not inconsistent with the
provisions of these Bylaws.
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ARTICLE V
OFFICERS
Section 1. Officers
---------- --------
The officers of the Corporation shall include a President, a Secretary,
and a Treasurer and Chief Financial Officer. The Corporation may also have,
at the discretion of the Board of Directors, a Chairman of the Board, one or
more Vice-Presidents, one or more Assistant Secretaries, one or more
Assistant Treasurers and such other officers as may be appointed in accordance
with the provisions of Section 3 of this Article V. Any number of offices
may be held by the same person.
Section 2. Election of Officers
---------- --------------------
The officers of the Corporation, except such officers as may be
appointed in accordance with the provisions of Section 3 or Section 5 of this
Article V, shall be chosen by the Board of Directors, and each shall serve at
the pleasure of the Board, subject to the rights, if any, of any officer
under contract of employment.
Section 3. Subordinate Officers
---------- --------------------
The Board of Directors may appoint, and may empower the President to
appoint, such other officers as the business of the Corporation may require,
each of whom shall hold office for such period, have such authority and
perform such duties as are provided in the Bylaws or as the Board of
Directors may from time to time determine.
Section 4. Removal and Resignation of Officers
---------- -----------------------------------
The Board of Directors may appoint, and may subject to the rights, if
any, of an officer under any contract of employment, any officer may be
removed, either with or without cause, by the Board of Directors at any
regular or special meeting of the Board of Directors, by any officer upon
whom such power of removal may be conferred by the Board of Directors.
Any officer may resign at any time by giving written notice to the
Corporation. Any resignation shall take effect at the date of the receipt of
such notice or at any later time specified in such notice, the acceptance of
such resignation shall not be necessary to make it effective. Any
resignation is without prejudice to the rights, if any,
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of the Corporation under any contract to which the resigning officer is a
party.
Section 5. Vacancies in Offices
---------- --------------------
A vacancy in any office because of death, resignation, removal,
disqualification or any other cause shall be filled in the manner prescribed
in these Bylaws for regular appointments to such office.
Section 6. Chairman of the Board
---------- --------------------
The Chairman of the Board of Directors, if such an officer be chosen,
shall, if present, preside at meetings of the Board of Directors and exercise
and perform such other powers and duties as from time to time may be assigned
to him by the Board of Directors or prescribed by these Bylaws. If there is
no President, the Chairman of the Board of Directors shall in addition be
the Chief Executive Officer of the Corporation and shall have the powers and
duties prescribed in Section 7 of this Article V.
Section 7. President
---------- ---------
Subject to such supervisor powers, if any, as may be given by the Board
of Directors to the Chairman of the Board of Directors, if there is such an
officer, the President shall be the Chief Executive Officer of the
Corporation and shall, subject to the control of the Board of Directors, have
general supervision, direction and control of the business and the officers
of the Corporation. He shall preside at all meetings of the shareholders
and, in the absence of the Chairmen of the Board or, if there is none, at all
meetings of the Board of Directors. He shall have the general powers and
duties of management usually vested in the office of President of a
Corporation and shall have such other powers and duties as may be prescribed
by the Board of Directors or these Bylaws.
Section 8. Vice-President
---------- --------------
In the absence or disability of the President, the Vice-Presidents, if
any, in order of their rank as fixed by the Board of Directors or, if not
ranked, a Vice-President designated by the Board of Directors, shall perform
all the duties of the President and, when so acting, shall have all the
powers of, and be subject to all the restrictions upon, the President. The
Vice-Presidents shall have such other powers and perform such other duties as
from time to time may be prescribed for them by the Board of Directors, the
Chairman of the Board, the President or these Bylaws.
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Section 9. Secretary
---------- ---------
The Secretary shall keep or cause to be kept, at the principal executive
office or such other place as the Board of Directors may direct, a book of
minutes of all meetings and actions or directors, committees of directors and
shareholders, with the time and place of holding, whether regular or special
and, if special, how authorized, the notice given, the names of those present
at Board meetings or committee meetings, the number of shares present or
represented at meetings of shareholders and the proceedings.
The Secretary shall keep, or cause to be kept, at the principal
executive office or at the office of the corporation's transfer agent or
registrar, as determined by resolution of the Board of Directors, a share
register or a duplicate share register showing the names of all shareholders
and their addresses, the number and classes of shares held by each, the
number and date of certificates issued for the same and the number and date
of cancellation of every certificate surrendered for cancellation.
The Secretary shall give, or cause to be given, notice of all meetings
of shareholders and of the Board of Directors required by these Bylaws or by
law to be given, and he shall keep in safe custody the seal of the
Corporation, if one is adopted, and shall have such other powers and perform
such other duties as may be prescribed by the Board of Directors of these
Bylaws.
Section 10. Treasurer and Chief Financial Officer
----------- -------------------------------------
The Treasurer and Chief Financial Officer shall keep and maintain, or
cause to be kept and maintained, adequate and correct books and records of
accounts of the properties and business transactions of the corporation,
including accounts of its assets, liabilities, receipts, disbursements,
gains, losses, capital, retained earnings and shares. The books of account
shall at all reasonable times be open to inspection by any director.
The Treasurer and Chief Financial Officer shall deposit all money and
other valuables in the name and to the credit of the Corporation with such
depositaries as may be designated by the Board of Directors. He shall
disburse the funds of the Corporation as may be ordered by the Board of
Directors, shall render to the President and Directors,
Page 17
whenever they request it, an account of all his transactions as Treasurer and
Chief Financial Officer and of the financial condition of the Corporation,
and shall have such other powers and perform such other duties as may be
prescribed by the Board of Directors or these Bylaws.
ARTICLE VI
INDEMNIFICATION OF DIRECTORS, OFFICERS,
EMPLOYEES AND OTHER AGENTS
The Corporation shall, to the maximum extent permitted by the California
General Corporation Law, indemnify each of its agents against expenses,
judgments, fines, settlements and other amounts actually and reasonably
incurred in connection with any proceeding arising by reason of the fact that
any such person is or was an agent of the Corporation. For purposes of this
Article VI, an "agent" of the Corporation includes any person who is or was a
director, officer, employee or other 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 or other
enterprise; or was a director, officer, employee or agent of a predecessor
corporation of the Corporation or of another enterprise at the request of
such predecessor corporation.
The indemnification provided by, or granted pursuant to, this Article VI
shall not be deemed exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may be entitled under any Bylaws,
agreement vote of shareholders or disinterested directors or otherwise, both
as to action in his official capacity and as to action in another capacity
while holding such office. No provision of these Bylaws shall limit or
prohibit indemnification by the Corporation to the fullest extent by
California law.
Page 18
ARTICLE VII
RECORDS AND REPORTS
Section 1. Maintenance and Inspection of Share Register
---------- --------------------------------------------
The Corporation shall keep at its principal executive office or at the
office of its transfer agent or registrar, if either be designated and as
determined by resolution of the Board of Directors, a record of its
shareholders, giving the names and addresses of all shareholders and the
number and class of shares held by each shareholder.
A shareholder or shareholders of the Corporation holding at least 5% in
the aggregate of the outstanding voting shares of the Corporation may (i)
inspect and copy the record of shareholders' names and addresses and
shareholdings during usual business hours, on five days' prior written demand
on the Corporation, and (ii) obtain from the transfer agent of the
Corporation, on written demand and on the tender of such transfer agent's
usual charges for such list, a list of the names and addresses of the
shareholders who are entitled to vote for the election of directors, and
their shareholdings, as of the most recent record date for which such list
has been compiled or as of a date specified by such shareholder or
shareholders after the date of demand. Such list shall be made available to
any such shareholder by the transfer agent on or before the later of five
days after the demand date as of which such list is to be compiled. The
record of shareholders shall also be open to inspection on the trust
certificate, at any time during usual business interests as a shareholder or
as the holder of a voting trust certificate. Any inspection and copying under
this Section 1 may be made in person or by an agent or attorney of the
shareholder or a holder of a voting trust certificate making the demand.
Section 2. Maintenance and Inspection of Bylaws
---------- ------------------------------------
The Corporation shall keep at its principal executive office or if its
principal executive office is not in the State of California, at its
principal business office in the State of California, the original or a copy
of these Bylaws as amended to date, which shall be open to inspection by the
shareholders at all reasonable times during office hours.
Page 19
If the principal executive office of the Corporation is outside the State of
California and the Corporation has no principal business office in the State
of California, the Secretary shall, upon the written request of any
shareholder, furnish to such shareholder a copy of these Bylaws as amended to
date.
Section 3. Maintenance and Inspection of Other Corporate Records
---------- -----------------------------------------------------
The accounting books and records and minutes of proceedings of the
shareholders and the Board of Directors and any committee or committees of the
Board of Directors shall be kept at such place or places as may be designated
by the Board of Directors or, in the absence of such designation, at the
principal executive office of the Corporation. The minutes shall be kept in
written form, and the accounting books and records shall be kept either in
written form or in any other form capable of being converted into written
form. The minutes and accounting books and records shall be open to
inspection upon the written demand of any shareholder or holder of a voting
trust certificate, at any reasonable time during usual business hours, for a
purpose reasonably related to the holder's interests as a shareholder or as a
holder of a voting trust certificate. The inspection may be made in person or
by an agent or attorney and shall include the right to copy and make
extracts. The rights of inspection set forth in this Section 3 shall extend
to the equivalent records of each subsidiary corporation of the Corporation.
Section 4. Inspection by Directors
---------- -----------------------
Every director shall have the absolute right at any reasonable time to
inspect all books, records and documents of every kind and the physical
properties of the Corporation and each of its subsidiary corporations. Such
inspection by a director may be made in person or by an agent or attorney,
and the right of inspection includes the right to copy and make extracts of
all documents.
Section 5. Annual Report to Shareholders
---------- -----------------------------
The annual report to shareholders referred to in Section 1501 of the
California General Corporation Law is expressly dispensed with, but nothing
herein shall be interpreted as prohibiting the Board of Directors from
issuing annual or other periodic reports to the shareholders of the
Corporation as they consider appropriate.
Page 20
Section 6. Financial Statements
---------- ---------------------
A copy of any annual financial statement and any income statement of the
Corporation for each quarterly period of each fiscal year, and any
accompanying balance sheet of the Corporation as of the end of each such
period, that has been prepared by the Corporation shall be kept on file in
the principal executive office of the Corporation for twelve months, and each
such statement shall be exhibited at all reasonable times to any shareholder
demanding an examination of any such statement or a copy shall be mailed to
any such shareholder.
If a shareholder or shareholders holding at least 5% of the outstanding
shares of any class of stock of the Corporation makes a written request to
the Corporation for an income statement of the Corporation for the
three-month, six-month or nine-month period of the then-current fiscal year
ending more than 30 days before the date of the request and the balance sheet
of the Corporation as of the end of such period, the Chief Financial Officer
shall cause such statement to be prepared, and shall deliver personally or
mail such statement to the person making such request within 30 days after
the receipt of such request. If the Corporation has not sent to the
shareholders its annual report for the last fiscal year, this report shall
likewise be delivered or mailed to the shareholder or shareholders within 30
days after such request.
The Corporation shall also, on the written request of any shareholder,
mail to the shareholder a copy of the last annual, semiannual or quarterly
income statement that it has prepared and a balance sheet as of the end of
that period.
The quarterly income statements and balance sheets referred to in this
Section 6 shall be accompanied by the report, if any, of any independent
accountants engaged by the Corporation or the certificate of an authorized
officer of the Corporation that the financial statements were prepared
without audit from the books and records of the Corporation.
Section 7. Annual Statement of General Information
---------- ---------------------------------------
The Corporation shall, within the statutorily required time period, file
with the Secretary of State of the State of California, on the prescribed
form, a statement setting forth the authorized number of directors, the names
and complete business or residence addresses of all incumbent directors, the
names and complete business or resident
Page 21
addresses of the Chief Executive Officer, Secretary and Chief Financial
Officer, the street address of its principal executive office or principal
business office in this state and the general type of business constituting
the principal business activity of the Corporation, and a designation of the
agent of the Corporation for the purpose of service of process, all in
compliance with Section 1502 of the Corporations Code of California.
ARTICLE VIII
GENERAL CORPORATE MATTERS
Section 1. Record Date for Purposes Other Than Notice and Voting
---------- -----------------------------------------------------
For purposes of determining the shareholders entitled to receive any
dividend or other distribution or allotment of any rights or entitled to
exercise any rights with respect to any other lawful action (other than
action by shareholders by written consent without a meeting), the Board of
Directors may fix, in advance, a record date, which shall not be more than 60
days before any such action, and in such case only shareholders of record on
the date so fixed are entitled to receive such dividend, distribution or
allotment of rights or to exercise the rights, as the case may be,
notwithstanding any transfer of any shares on the books of the Corporation
after the record date so fixed, except as otherwise provided in the
California General Corporation Law.
If the Board of Directors does not so fix a record date, the record date
for determining shareholders for any such purpose shall be at the close of
business on the day on which the Board adopts the applicable resolution or
the sixtieth day before the date of such action, whichever is later.
Section 2. Checks, Drafts, Evidence of Indebtedness
---------- ----------------------------------------
All checks, drafts or other orders for payment of money, notes or other
evidences of indebtedness issued in the name of or payable to the Corporation
shall be signed or endorsed by such person or persons and in such manner as,
from time to time, shall be determined by resolution of the Board of
Directors.
Page 22
Section 3. Execution of Corporate Contracts and Instruments
---------- ------------------------------------------------
The Board of Directors, except as other wise provided in these Bylaws,
may authorize any officer, officers, agent or agents to enter into any
contract or execute any instrument in the name of and for the Corporation;
such authority may be general or confined to specific instances; and, unless
so authorized or ratified by the Board of Directors or within the agency
power of an officer, no officer, agent or employee shall have any power or
authority to bind the Corporation by any contract or engagement or to pledge
its credit or to render it liable for any purpose or in any amount.
Section 4. Certificates for Shares
---------- -----------------------
A certificate or certificates for shares of the capital stock of the
Corporation shall be issued to each shareholder when any of such shares are
fully paid; the Board of Directors may authorize the issuance of certificates
or shares as partly paid, provided that such certificates shall state the
amounts of the consideration paid and owing. All certificates shall be signed
in the name of Corporation by the Chairman of the Board or Vice-Chairman of
the Board or the President or Vice-President and by the Chief Financial
Officer or an Assistant Treasurer or the Secretary or any Assistant
Secretary, certifying the number of shares and the class or series of shares
owned by the shareholder. Any or all of the signatures on the certificate may
be facsimile. In case any officer, transfer agent or registrar who has
signed, or whose facsimile signature has been placed on, a certificate shall
have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same
effect as if such person were an officer, transfer agent or registrar at the
date of issue.
Section 5. Lost Certificates
---------- -----------------
Except as provided in this Section 5, no new certificate for shares
shall be issued to replace an old certificate unless the latter is
surrendered to the Corporation and cancelled at the same time. The Board of
Directors may, in case any share certificate or certificate for any other
security is lost, stolen or destroyed, authorize the issuance of a
replacement certificate on such terms and conditions as the Board may
require, including a provision for indemnification of the Corporation secured
by a bond or other adequate security sufficient to protect the
Page 23
Corporation against any claim that may be made against it, including any
expense or liability, on account of the alleged loss, theft or destruction
of the certificate or the issuance of the replacement certificate.
Section 6. Representation of Shares of Other Corporations
---------- ----------------------------------------------
The Chairman of the Board, the President, any vice-President or any
person authorized either by the Board of Directors or by any of the foregoing
designated officers is authorized to vote on behalf of the Corporation any
and all shares of any other corporation or corporations standing in the name
of the Corporation. The authority granted to such officers to vote or
represent on behalf of the Corporation any and all shares held by the
Corporation in any other corporation or corporations may be exercised by any
of such officers in person or by any person authorized to do so by proxy duly
executed by such officers.
Section 7. Construction and Definitions
---------- ----------------------------
Unless the context requires otherwise, the general provisions, rules of
construction and definitions in the California General Corporation Law shall
govern the construction of these Bylaws. Without limiting the generality of
this provision, the singular number includes the plural, the plural number
includes the singular, any indication of gender includes both genders and the
term "person" includes a corporation, a natural person, an association and a
partnership.
ARTICLE IX
AMENDMENTS
Section 1. Amendment by Shareholders
---------- -------------------------
New bylaws may be adopted or these Bylaws may be amended or repealed by
the vote or written consent of holders of a majority of the outstanding
shares entitled to vote; provided, however, that if the Articles of
Incorporation set forth the number of authorized directors of the
Corporation, the authorized number of directors may be changed only by an
amendment of such Articles of Incorporation.
Page 24
Section 2. Amendment by Directors
---------- ----------------------
Subject to the rights of the shareholders as provided in Section 1 of
this Article IX, bylaws, other than a bylaw or an amendment of a bylaw
changing the authorized number of directors, may be adopted, amended or
repealed by the Board of Directors.
CERTIFICATE OF SECRETARY
I DO HEREBY CERTIFY AS FOLLOWS:
That I am the duly elected, qualified and acting Secretary of Penhall
Company, that the foregoing By-Laws were adopted as the By-Laws of said
corporation on the date set forth above ay the person named in the Articles
of Incorporation as the Incorporator of said Corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal this 27th day of April, 1989.
/s/ Tai Chen
------------
Secretary
Page 25