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EXHIBIT 3.13
BYLAWS
OF
MTH-TEXAS GP, 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 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
designated 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 business from time to time in accordance with the
relevant provisions of the Arizona Business Corporation Act.
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III. SHAREHOLDERS
3.01 Annual Shareholder Meeting. The annual meeting of the
shareholders shall be held on a date and at a time and place designated by the
Board of Directors each year, beginning with the year 1998, either within or
without the State of Arizona, or, in the absence of action by the Board, as set
forth in the notice given or waiver signed with respect to such meeting pursuant
to Section 3.03 below, for the purpose of electing directors and for the
transaction of such other business as may properly come before the meeting. If
any annual meeting is for any reason not held on the date determined as
aforesaid, a deferred annual meeting may thereafter be called and held in lieu
thereof, at which the same proceedings may be conducted. If the day fixed for
the annual meeting shall be a legal holiday in the State of Arizona such meeting
shall be held on the next succeeding business day.
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, Arizona Revised Statutes
Section 10-141. 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
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.
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(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.
(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 only 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.
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(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 Voting for Directors. Unless otherwise provided in the
Articles, directors are elected by a plurality of the votes cast by the shares
entitled to vote in the election at a meeting at which a quorum is present at
the time of such vote. As provided by law, shareholders shall be entitled to
cumulative voting in the election of directors.
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, the credentials of persons
purporting to be shareholders or persons named or referred to in 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
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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
of the Board and the President are unavailable, then by such other 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 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 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
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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 nor more than ten. 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 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 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 waive 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.
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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.
(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 p.m. 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. 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 Director Vacancies.
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(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 shares 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.
(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
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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 member
may resign from his or her office at any time by written notice delivered to the
Board of Directors, the Chairman of the 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 he or she
resigns, 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.
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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.
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 the 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 The 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 by
the Board of Directors.
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5.08 The 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 incident to the office of Secretary and such other duties as from
time to time may be 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 directors or shareholders as
appropriate to perform the duties of the Secretary.
5.09 The 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 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 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
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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. 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 on request in writing and without charge.
(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
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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
7.01 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
8.01 Corporate Seal. 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
9.01 Amendments. The corporation's Board of Directors may
amend or repeal the corporation's Bylaws unless:
(1) the Articles or the Arizona Business
Corporation Act reserve this power
exclusively to the shareholders in whole or
part; or
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(2) 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.
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