1
Exhibit 3.11
BY-LAWS
OF
MERITAGE HOMES OF ARIZONA, INC.
I. REFERENCES TO CERTAIN TERMS AND CONSTRUCTION
1.01 CERTAIN REFERENCES. Any reference herein made to law will be
deemed to refer to the law of the State of Arizona, including any applicable
provision of Chapters 1 through 17 of Title 10 of the Arizona Revised Statutes,
or any successor statute, as from time to time amended and in effect (sometimes
referred to herein as the "Arizona Business Corporation Act"). Any reference
herein made to the corporation's Articles will be deemed to refer to its
Articles of Incorporation and all amendments thereto as at any given time on
file with the Arizona Corporation Commission. Except as otherwise required by
law and subject to any procedures established by the corporation pursuant to
Arizona Revised Statutes Section 10- 723, the term "shareholder as used herein
shall mean one who is a holder of record of shares of the corporation.
References to specific sections of law herein made shall be deemed to refer to
such sections, or any comparable successor provisions, as from time to time
amended and in effect.
1.02 SENIORITY. The law and the Articles (in that order of precedence)
will in all respects be considered senior and superior to these Bylaws, with any
inconsistency to be resolved in favor of the law and such Articles (in that
order of precedence), and with these Bylaws to be deemed automatically amended
from time to time to eliminate any such inconsistency which may then exist.
1.03 COMPUTATION OF TIME. The time during which an act is required to
be done, including the time for the giving of any required notice herein, shall
be computed by excluding the first day or hour, as the case may be, and
including the last day or hour.
II. OFFICES
2.01 PRINCIPAL OFFICE. The principal office of the corporation shall be
located at any place either within or outside the State of Arizona as designed
in the corporation's most current Annual Report filed with the Arizona
Corporation Commission or in any other document executed and delivered to the
Arizona Corporation Commission for filing. If a principal office is not so
designated, the principal office of the corporation shall mean the known place
of business of the corporation. The corporation may have such other offices,
either within or without the State of Arizona, as the Board of Directors may
designate or as the business of the corporation may require from time to time.
2.02 KNOWN PLACE OF BUSINESS. A known place of business of the
corporation shall be located within the State of Arizona and may be, but need
not be, the address of the statutory agent of the corporation. The corporation
may change its known place of
2
business from time to time in accordance with the relevant provisions of the
Arizona Business Corporation Act.
III. SHAREHOLDERS
3.01 ANNUAL SHAREHOLDER MEETING. The annual meeting of the shareholders
shall be held on such date within the month of June (or at such other date
within each calendar year) as may be fixed from time to time by the Board of
Directors for the purpose of electing directors and for the transaction of such
other business as may properly come before the meeting.
3.02 SPECIAL SHAREHOLDER MEETINGS. Special meetings of the shareholders
may be held whenever and wherever, either within or without the State of
Arizona, called for by or at the direction of the Chairman of the Board, the
President or the Board of Directors.
3.03 NOTICE OF SHAREHOLDERS MEETINGS.
(a) REQUIRED NOTICE. Notice stating the place, day and hour of
any annual or special shareholders meeting shall be given not less than ten (10)
nor more than sixty (60) days before the date of the meeting by or at the
direction of the person or persons calling the meeting, to each shareholder
entitled to vote at such meeting and to any other shareholder entitled to
receive notice of the meeting by law or the Articles. Notices to shareholders
shall be given in accordance with, and shall be deemed to be effective at the
time and in the manner described in, Section 10-141 of the Arizona Revised
Statutes. If no designation is made of the place at which an annual or special
meeting will be held in the notice for such meeting, the place of the meeting
will be at the principal place of business of the corporation.
(b) ADJOURNED MEETING. If any shareholders meeting is
adjourned to a different date, time or place, notice need not be given of the
new date, time and place if the new date, time and place are announced at the
meeting before adjournment. But if a new record date for the adjourned meeting
is fixed or must be fixed in accordance with law or these Bylaws, then notice of
the adjourned meeting shall be given to those persons who are shareholders as of
the new record date and who are entitled to such notice pursuant to Section
3.03(a) above.
(c) WAIVER OF NOTICE. Any shareholder may waive notice of a
meeting (or any notice of any other action required to be given by the Arizona
Business Corporation Act, the corporation's Articles or these Bylaws) at any
time before, during or after the meeting or other action, by a writing signed by
the shareholder entitled to the notice. Each such waiver shall be delivered to
the corporation for inclusion in the minutes or filing with the corporate
records. Under certain circumstances, a shareholder's attendance at a
-2-
3
meeting may constitute a waiver of notice, unless the shareholder takes certain
actions to preserve his/her objections as described in the Arizona Business
Corporation Act.
(d) CONTENTS OF NOTICE. The notice of each special
shareholders meeting shall include a description of the purpose or purposes for
which the meeting is called. Except as required by law or the corporation's
Articles, the notice of an annual shareholders meeting need not include a
description of the purpose or purposes for which the meeting is called.
3.04 FIXING OF RECORD DATE. For the purpose of determining shareholders
of any voting group entitled to notice of or to vote at any meeting of
shareholders, or shareholders entitled to receive any distribution or dividend,
or in order to make a determination of shareholders for any other proper
purpose, the Board of Directors may fix in advance a date as the record date.
Such record date shall not be more than seventy (70) days prior to the date on
which the particular action requiring such determination of shareholders is to
be taken. If no record date is so fixed by the Board of Directors, the record
date for the determination of shareholders shall be as provided in the Arizona
Business Corporation Act.
When a determination of shareholders entitled to notice of or
to vote at any meeting of shareholders has been made as provided in this
Section, such determination shall apply to any adjournment thereof, unless the
Board of Directors fixes a new record date, which it must do if the meeting is
adjourned to a date more than one hundred twenty (120) days after the date fixed
for the original meeting.
3.05 SHAREHOLDER LIST. The corporation shall make a complete record of
the shareholders entitled to notice of each meeting of shareholders thereof,
arranged in alphabetical order, listing the address and the number of shares
held by each. The list shall be arranged by voting group and within each voting
group by class or series of shares. The shareholder list shall be available for
inspection by any shareholder, beginning two (2) business days after notice of
the meeting is given for which the list was prepared and continuing through the
meeting. The list shall be available at the corporation's principal office or at
another place identified in the meeting notice in the city where the meeting is
to be held. Failure to comply with this section shall not affect the validity of
any action taken at the meeting.
3.06 SHAREHOLDER QUORUM AND VOTING REQUIREMENTS.
(a) If the Articles or the Arizona Business Corporation Act
provide for voting by a single voting group on a matter, action on that matter
is taken when voted upon by that voting group.
-3-
4
(b) If the Articles or the Arizona Business Corporation Act
provide for voting by two (2) or more voting groups on a matter, action on that
matter is taken when voted upon by each of those voting groups counted
separately.
(c) Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Unless the Articles or the Arizona Business
Corporation Act provide otherwise, a majority of the votes entitled to be cast
on the matter by the voting group constitutes a quorum of that voting group for
action on that matter.
(d) Once a share is represented for any purpose at a meeting,
it is deemed present for quorum purposes for the remainder of the meeting and
for any adjournment of that meeting, unless a new record date is or must be set
for that adjourned meeting.
(e) If a quorum exists, action on a matter (other than the
election of directors) by a voting group is approved if the votes cast within
the voting group favoring the action exceed the votes cast opposing the action,
unless the Articles or the Arizona Business Corporation Act require a greater
number of affirmative votes.
(f) Voting will be by ballot on any question as to which a
ballot vote is demanded prior to the time the voting begins by any person
entitled to vote on such question; otherwise, a voice vote will suffice. No
ballot or change of vote will be accepted after the polls have been declared
closed following the ending of the announced time for voting.
3.07 PROXIES. At all meetings of shareholders, a shareholder may vote
in person or by proxy duly executed in writing by the shareholder or the
shareholder's duly authorized attorney-in-fact. Such proxy shall comply with law
and shall be filed with the Secretary of the corporation or other person
authorized to tabulate votes before or at the time of the meeting. No proxy
shall be valid after eleven (11) months from the date of its execution unless
otherwise provided in the proxy. The burden of proving the validity of any
undated, irrevocable or otherwise contested proxy at a meeting of the
shareholders will rest with the person seeking to exercise the same. A facsimile
appearing to have been transmitted by a shareholder or by such shareholder's
duly authorized attorney-in-fact may be accepted as a sufficiently written and
executed proxy.
3.08 VOTING OF SHARES. Unless otherwise provided in the Articles or the
Arizona Business Corporation Act, each outstanding share entitled to vote shall
be entitled to one (1) vote upon each matter submitted to a vote at a meeting of
shareholders.
3.09 CUMULATIVE VOTING. At all elections for directors, each
shareholder shall be entitled to as many votes as shall equal the number of its
shares of stock multiplied by the number of directors to be elected, and it may
cast all of such votes for a single director or
-4-
5
may distribute them among the number to be voted for, or any two or more of
them, as it may see fit.
3.10 ELECTION INSPECTORS. The Board of Directors, in advance of any
meeting of the shareholders, may appoint an election inspector or inspectors to
act at such meeting (and at any adjournment thereof). If an election inspector
or inspectors are not so appointed, the chairman of the meeting may, or upon
request of any person entitled to vote at the meeting will, make such
appointment. If any person appointed as an inspector fails to appear or to act,
a substitute may be appointed by the chairman of the meeting. If appointed, the
election inspector or inspectors (acting through a majority of them if there be
more than one) will determine the number of shares outstanding, the
authenticity, validity and effect of proxies and the number of shares
represented at the meeting in person and by proxy; will receive and count votes,
ballots and consents and announce the results thereof; will hear and determine
all challenges and questions pertaining to proxies and voting; and, in general,
will perform such acts as may be proper to conduct elections and voting with
complete fairness to all shareholders. No such election inspector need be a
shareholder of the corporation.
3.11 ORGANIZATION AND CONDUCT OF MEETINGS. Each meeting of the
shareholders will be called to order and thereafter chaired by the Chairman of
the Board of Directors if there is one, or, if not or if the Chairman of the
Board is absent or so requests, then by the President, or if both the Chairman
and the President are unavailable, then by such officer of the corporation or
such shareholder as may be appointed by the Board of Directors. The
corporation's Secretary or, in his or her absence, an Assistant Secretary will
act as secretary of each meeting of the shareholders. If neither the Secretary
nor an Assistant Secretary is in attendance, the chairman of the meeting may
appoint any person (whether a shareholder or not) to act as secretary for the
meeting. After calling a meeting to order, the chairman thereof may require the
registration of all shareholders intending to vote in person and the filing of
all proxies with the election inspector or inspectors, if one or more have been
appointed (or, if not, with the secretary of the meeting). After the announced
time for such filing of proxies has ended, no further proxies or changes,
substitutions or revocations of proxies will be accepted. If directors are to be
elected, a tabulation of the proxies so filed will, if any person entitled to
vote in such election so requests, be announced at the meeting (or adjournment
thereof) prior to the closing of the election polls. Absent a showing of bad
faith on his or her part, the chairman of a meeting will, among other things,
have absolute authority to fix the period of time allowed for the registration
of shareholders and the filing of proxies, to determine the order of business to
be conducted at such meeting and to establish reasonable rules for expediting
the business of the meeting and preserving the orderly conduct thereof
(including any informal or question and answer portions thereof).
3.12 SHAREHOLDER APPROVAL OR RATIFICATION. The Board of Directors may
submit any contract or act for approval or ratification of the shareholders at a
duly constituted meeting of the shareholders. Except as otherwise required by
law, if any contract or act so
-5-
6
submitted is approved or ratified by a majority of the votes cast thereon at
such meeting, the same will be valid and as binding upon the corporation and all
of its shareholders as it would be if it were the act of its shareholders.
3.13 INFORMALITIES AND IRREGULARITIES. All informalities or
irregularities in any call or notice of a meeting of the shareholders or in the
areas of credentials, proxies, quorums, voting and similar matters will be
deemed waived if no objection is made at the meeting.
3.14 SHAREHOLDER ACTION BY WRITTEN CONSENT. Any action required or
permitted to be taken at a meeting of the shareholders may be taken without a
meeting if one (1) or more consents in writing, setting forth the action so
taken shall be signed by all of the shareholders entitled to vote with respect
to the subject matter thereof. The consents shall be delivered to the
corporation for inclusion in the minutes or filing with the corporate record.
Action taken by consent is effective when the last shareholder signs the consent
unless the consent specifies a different effective date, except that if, by law,
the action to be taken requires that notice be given to shareholders who are not
entitled to vote on the matter, the effective date shall not be prior to ten
(10) days after which the corporation shall give such shareholders written
notice of the proposed action, which notice shall contain or be accompanied by
the same material that would have been required if a formal meeting had been
called to consider the action. A consent signed under this section has the
effect of a meeting vote and may be described as such in any document.
IV. BOARD OF DIRECTORS
4.01 GENERAL POWERS. All corporate powers shall be exercised by or
under the authority of, and the business and affairs of the corporation shall be
managed under the direction of, the Board of Directors.
4.02 NUMBER, TENURE AND QUALIFICATION OF DIRECTORS. Unless otherwise
provided in the Articles of Incorporation, the authorized number of directors
shall be not less than one (1) nor more than five (5). The number of directors
in office from time to time shall be within the limits specified above, as
prescribed from time to time by resolution adopted by either the shareholders or
the Board of Directors. The directors will regularly be elected at each annual
meeting of the shareholders, but directors may be elected at any other meeting
of the shareholders. Each director shall hold office until the annual meeting of
shareholders following his/her election, subject to his/her earlier resignation
or removal. However, if a director's term expires, he/she shall continue to
serve until his/her successor shall have been elected and qualified, until
his/her resignation or removal or until there is a decrease in the number of
directors. Unless required by the Articles, directors do not need to be
residents of the State of Arizona or shareholders of the corporation.
4.03 REGULAR MEETINGS OF THE BOARD OF DIRECTORS. A regular annual
meeting of the Board of Directors is to be held as soon as practicable after the
adjournment of each
-6-
7
annual meeting of the shareholders, either at the place of the shareholders
meeting or at such other place as the directors elected at the shareholders
meeting may have been informed of at or prior to the time of their election.
Additional regular meetings may be held at regular intervals at such places and
at such times as the Board of Directors may determine.
4.04 SPECIAL MEETINGS OF THE BOARD OF DIRECTORS. Special meetings of
the Board of Directors may be held whenever and wherever called for by the
Chairman of the Board, the President or the number of directors that would be
required to constitute a quorum.
4.05 NOTICE OF AND WAIVER OF NOTICE FOR DIRECTORS MEETINGS. No notice
need be given of regular meetings of the Board of Directors. Notice of the time
and place of any special directors meeting shall be given at least forty-eight
(48) hours prior thereto. Notice shall be given in accordance with and shall be
deemed to be effective at the time and in the manner described in Arizona
Revised Statutes Section 10-141. Any director may give notice of any meeting and
any adjournment thereof at any time before, during or after it is held.
Except as provided in the next sentence below, the waiver must be in writing,
signed by the director entitled to the notice and filed with the minutes or
corporate records. The attendance of a director at or participation of a
director in a meeting shall constitute a waiver of notice of such meeting,
unless the director at the beginning of the meeting (or promptly upon his/her
arrival) objects to holding the meeting or transacting business at the meeting
and does not thereafter vote for or assent to action taken at the meeting.
4.06 DIRECTOR QUORUM. A majority of the number of directors prescribed
according to Section 4.02 above or, if no number is so prescribed, the number in
office immediately before the meeting begins, shall constitute a quorum for the
transaction of business at any meeting of the Board of Directors unless the
Articles require a greater number.
4.07 DIRECTORS, MANNER OF ACTING.
(a) If a quorum is present when a vote is taken, the
affirmative vote of a majority of the directors present shall be the act of the
Board of Directors unless the Articles require a greater percentage.
(b) Unless the Articles provide otherwise, any or all
directors may participate in a regular or special meeting by, or conduct the
meeting through the use of, any means of communication by which all directors
participating may simultaneously hear each other during the meeting, in which
case, any required notice of the meeting may generally describe the arrangements
(rather than or in addition to the place) for the holding thereof. A director
participating in a meeting by this means is deemed to be present in person at
the meeting.
-7-
8
(c) A director who is present at a meeting of the Board of
Directors or a committee of the Board of Directors when corporate action is
taken is deemed to have assented to the action taken unless: (1) the director
objects at the beginning of the meeting (or promptly upon his/her arrival) to
holding it or transacting business at the meeting; or (2) his/her dissent or
abstention from the action taken is entered in the minutes of the meeting; or
(3) he/she delivers written notice of his/her dissent or abstention to the
presiding officer of the meeting before its adjournment or to the corporation
before 5:00 pm. on the next business day after the meeting. The right of dissent
or abstention is not available to a director who votes in favor of the action
taken.
4.08 DIRECTOR ACTION WITHOUT A MEETING. Unless the Articles provide
otherwise, any action required or permitted to be taken by the Board of
Directors at a meeting may be taken without a meeting if the action is taken by
unanimous written consent of the Board of Directors as evidenced by one (1) or
more written consents describing the action taken, signed by each director and
filed with the minutes or corporate records. Action taken by consent is
effective when the last director signs the consent, unless the consent specifies
a different effective date. A signed consent has the effect of a meeting vote
and may be described as such in any document.
4.09 REMOVAL OF DIRECTORS BY SHAREHOLDERS. The shareholders may remove
one (1) or more directors at a meeting called for that purpose if notice has
been given that a purpose of the meeting is such removal. The removal may be
with or without cause unless the Articles provide that directors may only be
removed with cause. If a director is elected by a voting group of shareholders,
only the shareholders of that voting group may participate in a shareholder vote
to remove him/her. If less than the entire Board of Directors is to be removed,
a director may not be removed if the number of votes sufficient to elect the
director under cumulative voting is voted against the director's removal.
4.10 BOARD OF DIRECTORS.
(a) Unless the Articles provide otherwise, if a vacancy occurs
on the Board of Directors, including a vacancy resulting from an increase in the
number of directors, either the shareholders or the Board of Directors may fill
the vacancy.
(b) If the vacant office was held by a director elected by a
voting group of shareholders, only the holders of that voting group are entitled
to vote to fill the vacancy if it is filled by the shareholders.
(c) A vacancy that will occur at a specific later date (by
reason of resignation effective at a later date) may be filled before the
vacancy occurs, but the new director may not take office until the vacancy
occurs.
-8-
9
(d) The term of a director elected to fill a vacancy expires
at the next shareholders meeting at which directors are elected.
4.11 DIRECTOR COMPENSATION. Unless otherwise provided in the Articles
by resolution of the Board of Directors, each director may be paid his/her
expenses, if any, of attendance at each meeting of the Board of Directors or any
committee thereof, and may be paid a stated salary as director or a fixed sum
for attendance at each meeting of the Board of Directors or any committee
thereof, or both. No such payment shall preclude any director from serving the
corporation in any capacity and receiving compensation therefor.
4.12 DIRECTOR COMMITTEES.
(a) CREATION OF COMMITTEES. Unless the Articles provide
otherwise, the Board of Directors may create one (1) or more committees and
appoint members of the Board of Directors to serve on them. Each committee shall
have one (1) or more members, who serve at the pleasure of the Board of
Directors.
(b) SELECTION OF MEMBERS. The creation of a committee and
appointment of members to it shall be approved by the greater of (1) a majority
of all the directors in office when the action is taken or (2) the number of
directors required by the Articles to take such action.
(c) REQUIRED PROCEDURES. Sections 4.03 through 4.08 of this
Article IV, which govern meetings, action without meetings, notice and waiver of
notice and quorum and voting requirements of the Board of Directors, apply to
committees and their members.
(d) AUTHORITY. Unless limited by the Articles, each committee
may exercise those aspects of the authority of the Board of Directors which the
Board of Directors confers upon such committee in the resolution creating the
committee; provided, however, that a committee may not: (1) authorize
distributions; (2) approve or propose to shareholders action that requires
shareholder approval under the Arizona Business Corporation Act; (3) fill
vacancies on the Board of Directors or on any of its committees; (4) amend the
Articles of Incorporation without shareholder action as provided by law; (5)
adopt, amend or repeal these Bylaws; (6) approve a plan of merger not requiring
shareholder approval; (7) authorize or approve reacquisition of shares, except
according to a formula or method prescribed by the Board of Directors; (8)
authorize or approve the issuance or sale or contract for sale of shares or
determine the designation and relative rights, preferences and limitations of a
class or series of shares except within limits specifically prescribed by the
Board of Directors; or (9) fix the compensation of directors for serving on the
Board of Directors or any committee of the Board of Directors.
4.13 DIRECTOR RESIGNATIONS. Any director or committee may resign from
his or her office at any time by written notice delivered to the Board of
Directors, the Chairman of the
-9-
10
Board or the corporation at its known place of business. Any such resignation
will be effective upon its receipt unless some later time is therein fixed, and
then from that time. The acceptance of a resignation will not be required to
make it effective.
V. OFFICERS
5.01 NUMBER OF OFFICERS. The officers of the corporation shall be a
President, a Secretary and a Treasurer, each of whom shall be appointed by the
Board of Directors. Such other officers and assistant officers as may be deemed
necessary, including any Vice Presidents, may be appointed by the Board of
Directors. If specifically authorized by the Board of Directors, an officer may
appoint one (1) or more other officers or assistant officers. The same
individual may simultaneously hold more than one (1) office in the corporation.
5.02 APPOINTMENT AND TERM OF OFFICE. The officers of the corporation
shall be appointed by the Board of Directors for a term as determined by the
Board of Directors. The designation of a specified term grants to the officer no
contract rights, and the Board of Directors can remove the officer at any time
prior to the termination of such term. If no term is specified, an officer of
the corporation shall hold office until her or she resigns or dies or until he
or she is removed in the manner provided by law or in Section 5.03 of this
Article V. The regular election or appointment of officers will take place at
each annual meeting of the Board of Directors, but elections of officers may be
held at any other meeting of the Board.
5.03 RESIGNATION AND REMOVAL OF OFFICERS. An officer may resign at any
time by delivering written notice to the corporation at its known place of
business. A resignation is effective when the notice is delivered unless the
notice specifies a later effective date or event. Any officer may be removed by
the Board of Directors at any time, with or without cause. Such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer shall not of itself create contract rights.
5.04 DUTIES OF OFFICERS. Officers of the corporation shall have
authority to perform such duties as may be prescribed from time to time by law,
in these Bylaws or by the Board of Directors, the President or the superior
officer of any such officer. Each officer of the corporation (in the order
designated herein or by the Board) will be vested with all of the powers and
charged with all of the duties of his or her superior officer in the event of
such superior officer's absence, death or disability.
5.05 BONDS AND OTHER REQUIREMENTS. The Board of Directors may require
any officer to give bond to the corporation (with sufficient surety and
conditioned for the faithful performance of the duties of his or her office) and
to comply with such other conditions as may from time to time be required of him
or her by the Board of Directors.
-10-
11
5.06 PRESIDENT. Unless otherwise specified by resolution of the Board
of Directors, the President shall be the principal executive officer of the
corporation and, subject to the control of the Board of Directors, shall
supervise and control all of the business and affairs of the corporation and the
performance by all of its other officers of their respective duties and in
general shall perform all duties incident to the office of President and such
other duties as may be prescribed by the Board of Directors from time to time.
The President shall, when present and in the absence of a Chairman of the Board,
preside at all meetings of shareholders and of the Board of Directors. The
President will be a proper officer to sign on behalf of the corporation any
deed, bill of sale, assignment, option, mortgage, pledge, note, bond, evidence
of indebtedness, application, consent (to service of process or otherwise),
agreement, indenture, contract or other instrument, except in each such case
where the signing and execution thereof shall be expressly delegated by the
Board of Directors or by these Bylaws to some other officer or agent of the
corporation, or shall be required by law to be otherwise signed or executed. The
President may represent the corporation at any meeting of the shareholders or
members of any other corporation, association, partnership, joint venture or
other entity in which the corporation then holds shares of capital stock or has
an interest and may vote such shares of capital stock or other interest in
person or by proxy appointed by him or her, provided that the Board of Directors
may from time to time confer the foregoing authority upon any other person or
persons.
5.07 VICE-PRESIDENT. If appointed, in the absence of the President or
in the event of his/her death or disability, the Vice-President (or in the event
there be more than one Vice- President, the Vice-Presidents in the order
designated at the time of their election, or in the absence of any such
designation, then in the order of their appointment) shall perform 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. If there is no Vice-President or in
the event of the death or disability of all Vice-Presidents, then the Treasurer
shall perform such duties of the President in the event of his or her absence,
death or disability. Each Vice-President will be a proper officer to sign on
behalf of the corporation any deed, bill of sale, assignment, option, mortgage,
pledge, note, bond, evidence of indebtedness, application, consent (to service
of process or otherwise), agreement, indenture, contract or other instrument,
except in each such case where the signing and execution thereof shall be
expressly delegated by the Board of Directors or by these Bylaws to some other
officer or agent of the corporation, or shall be required by law to be otherwise
signed or executed. Any Vice-President may represent the corporation at any
meeting of the shareholders or members of any other corporation, association,
partnership, joint venture or other entity in which the corporation then holds
shares of capital stock or has an interest and may vote such shares of capital
stock or other interest in person or by proxy appointed by him or her, provided
that the Board of Directors may from time to time confer the foregoing authority
upon any other person or persons. A Vice-President shall perform such other
duties as from time to time may be assigned to him/her by the President or the
Board of Directors.
-11-
12
5.08 SECRETARY. The Secretary shall: (a) keep the minutes of the
proceedings of the shareholders and of the Board of Directors and any committee
of the Board of Directors and all unanimous written consents of the
shareholders, Board of Directors and any committee of the Board of Directors in
one (1) or more books provided for that purpose; (b) see that all notices are
duly given in accordance with the provisions of these Bylaws or as required by
law; (c) be custodian of the corporate records and of any seal of the
corporation; (d) when requested or required, authenticate any records of the
corporation; (e) keep a register of the address of each shareholder which shall
be furnished to the Secretary by such shareholder; and (f) in general perform
all duties assigned to him/her by the President or by the Board of Directors.
Except as may otherwise be specifically provided in a resolution of the Board of
Directors, the Secretary will be a proper officer to take charge of the
corporation's stock transfer books and to compile the voting record pursuant to
Section 3.05 above, and to impress the corporation's seal, if any, on any
instrument signed by the President, any Vice- President or any other duly
authorized person, and to attest to the same. In the absence of the Secretary, a
secretary pro tempore may be chosen by the director or shareholders, as
appropriate, to perform the duties of the Secretary.
5.09 TREASURER. The Treasurer shall: (a) have charge and custody of and
be responsible for all funds and securities of the corporation; (b) receive and
give receipts for moneys due and payable to the corporation from any source
whatsoever, and deposit all such moneys in the name of the corporation in such
bank, trust companies or other depositories as shall be selected by the Board of
Directors or any proper officer; (c) keep full and accurate accounts of receipts
and disbursements in books and records of the corporation; and (d) in general
perform all of the duties incident to the office of Treasurer and such other
duties as from time to time may be assigned to him/her by the President or by
the Board of Directors. The Treasurer will render to the President, the
directors and the shareholders at proper times an account of all of his or her
transactions as Treasurer and of the financial condition of the corporation. The
Treasurer shall be responsible for preparing and filing such financial reports,
financial statements and returns as may be required by law.
5.10 ASSISTANT SECRETARIES AND ASSISTANT TREASURERS. The Assistant
Secretaries and the Assistant Treasurers, when authorized by the Board of
Directors, may sign with the President or a Vice-President certificates for
shares of the corporation, the issuance of which shall have been authorized by a
resolution of the Board of Directors. The Assistant Secretaries and Assistant
Treasurers, in general, shall perform such duties as shall be assigned to them
by the Secretary or the Treasurer, respectively, or by the President or the
Board of Directors.
5.11 CHAIRMAN OF THE BOARD. The Board of Directors may elect a Chairman
to serve as a general executive officer of the corporation and, if specifically
designated as such by the Board of Directors, as the chief executive officer of
the corporation. If elected, the
-12-
13
Chairman will preside at all meetings of the Board of Directors and be vested
with such other powers and duties as the Board of Directors may from time to
time delegate to him or her.
5.12 SALARIES. The salaries of the officers of the corporation may be
fixed from time to time by the Board of Directors or (except as to the
President's own) left to the discretion of the President. No officer will be
prevented from receiving a salary by reason of the fact that he or she is also a
director of the corporation.
5.13 ADDITIONAL APPOINTMENTS. In addition to the officers contemplated
in this Article V, the Board of Directors may appoint other agents of the
corporation with such authority to perform such duties as may be prescribed from
time to time by the Board of Directors.
VI. CERTIFICATES FOR SHARES AND THEIR TRANSFER
6.01 CERTIFICATES FOR SHARES.
(a) CONTENT. Certificates representing shares of the
corporation shall, at a minimum, state on their face the name of the issuing
corporation and that it is formed under the laws of the State of Arizona, the
name of the person to whom issued, and the number and class of shares and the
designation of the series, if any, the certificate represents. Such certificates
shall be signed (either manually or by facsimile to the extent allowable by law)
by one or more officers of the corporation as determined by the Board of
Directors or, if no such determination is made, by any of the Chairman of the
Board (if any), the President, any Vice- President, the Secretary or the
Treasurer of the corporation, and may be sealed with a corporate seal or a
facsimile thereof, if any. Each certificate for shares shall be consecutively
numbered or otherwise identified and will exhibit such information as may be
required by law. If a supply of unissued certificates bearing the facsimile
signature of a person remains when that person ceases to hold the office of the
corporation indicated on such certificates or ceases to be the transfer agent or
registrar of the corporation, they may still be issued by the corporation and
countersigned, registered, issued and delivered by the corporation's transfer
agent and/or registrar thereafter, as though such person had continued to hold
the office indicated on such certificate.
(b) LEGEND AS TO CLASS OR SERIES. If the corporation is
authorized to issue different classes of shares or different series within a
class, the designations, relative rights, preferences and limitations applicable
to each class and the variations in rights, preferences and limitations
determined for each series (and the authority of the Board of Directors to
determine variations for future series) shall be summarized on the front or back
of each certificate. Alternatively, each certificate may state conspicuously on
its front or back that the corporation will furnish a shareholder this
information upon request in writing and without charge.
-13-
14
(c) SHAREHOLDER LIST. The name and address of the person to
whom shares are issued, with the number of shares and date of issue, shall be
entered on the stock transfer books of the corporation.
(d) LOST CERTIFICATES. In the event of the loss, theft or
destruction of any certificate representing shares of the corporation or of any
predecessor corporation, the corporation may issue (or, in the case of any such
shares as to which a transfer agent and/or registrar have been appointed, may
direct such transfer agent and/or registrar to countersign, register and issue)
a new certificate, and cause the same to be delivered to the registered owner of
the shares represented thereby; provided that such owner shall have submitted
such evidence showing the circumstances of the alleged loss, theft or
destruction and his, her or its ownership of the certificate as the corporation
considers satisfactory, together with any other facts that the corporation
considers pertinent; and further provided that, if so required by the
corporation, the owner shall provide a bond or other indemnity in form and
amount satisfactory to the corporation (and to its transfer agent and/or
registrar, if applicable).
6.02 REGISTRATION OF THE TRANSFER OF SHARES. Registration of the
transfer of shares of the corporation shall be made only on the stock transfer
books of the corporation. In order to register a transfer, the record owner
shall surrender the shares to the corporation for cancellation, properly
endorsed by the appropriate person or persons with reasonable assurances that
the endorsements are genuine and effective. Unless the corporation has
established a procedure by which a beneficial owner of shares held by a nominee
is to be recognized by the corporation as the owner, the corporation will be
entitled to treat the registered owner of any share of the capital stock of the
corporation as the absolute owner thereof and, accordingly, will not be bound to
recognize any beneficial, equitable or other claim to, or interest in, such
share on the part of any other person, whether or not it has notice thereof,
except as may expressly be provided by applicable law.
6.03 SHARES WITHOUT CERTIFICATES. The Board of Directors may authorize
the issuance of uncertificated shares by the corporation and may prescribe
procedures for the issuance and registration of transfer thereof and with
respect to such other matters as the Board of Directors shall deem necessary or
appropriate.
VII. DISTRIBUTIONS
Subject to such restrictions or requirements as may be imposed by
applicable law or the corporation's Articles or as may otherwise be binding upon
the corporation, the Board of Directors may from time to time declare, and the
corporation may pay or make, dividends or other distributions to its
shareholders.
VIII. CORPORATE SEAL
-14-
15
The Board of Directors may provide for a corporate seal of the
corporation that will have inscribed thereon any designation, including the name
of the corporation, Arizona as the state of incorporation, the year of
incorporation and the words "Corporate Seal".
IX. AMENDMENTS
The corporation's Board of Directors may amend or repeal the
corporation's Bylaws unless:
(a) The Articles or the Arizona Business Corporation Act
reserve this power exclusively to the shareholders in
whole or part; or
(b) The shareholders, in adopting, amending or repealing
a particular bylaw, provide expressly that the Board
of Directors may not amend or repeal that bylaw.
The corporation's shareholders may amend or repeal the corporation's Bylaws even
though the Bylaws may also be amended or repealed by its Board of Directors.
* * * * *
CERTIFICATION
The undersigned Secretary of Meritage Homes of Arizona, Inc.
hereby certifies that the foregoing Bylaws of the Corporation were duly adopted
pursuant to the Action by Unanimous Consent of the Board of Directors in Lieu of
First Meeting dated _____, 2000.
____________________________________________
Larry W. Seay
-15-