EXHIBIT 3.44
BYLAWS
OF
MERITAGE HOMES OF COLORADO, 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
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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.
III. SHAREHOLDERS
3.01. Annual Shareholder Meeting. The annual meeting of the shareholders
shall be held on such date and at such time and place, either within or without
the State of Arizona, as shall be fixed by the Board of Directors 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 a Co-Chairman of the Board, a
Chief Executive Officer, 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,
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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.
(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.
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(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. 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
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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 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 a Co-Chairman of
the Board of Directors if there is one, or, if not, or if a Co-Chairman of the
Board is absent or so requests, then by a Chief Executive Officer, or if both a
Co-Chairman of the Board and a Chief Executive Officer 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
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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 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 two (2) nor more than five (5). The initial number of
directors of the corporation shall be two (2).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 a Co-Chairman
of the Board, a Chief Executive Officer, 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
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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.
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.
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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.
(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.
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(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 member may resign
from his or her office at any time by written notice delivered to the Board of
Directors, a Co-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 In General. The Board of Directors shall elect not more than two
Co-Chairmen, a Chief Executive Officer, a President, one or more Vice
Presidents, a Chief Financial Officer, a Secretary, and such Assistant
Secretaries and Assistant Treasurers as the Board may from time to time deem
appropriate. All officers shall hold office only during the pleasure of the
Board or until their successors are chosen and qualify. Any two of the above
offices, except those of President and Vice President, may be held by the same
person, but no officer shall execute, acknowledge or verify any instrument in
more than one capacity when such instrument is required to be executed,
acknowledged or verified by any two or more officers. The Board of Directors may
from time to time appoint such other agents and employees with such powers and
duties as the Board may deem proper. In its discretion, the Board of Directors
may leave unfilled any offices except those of Co-Chairman, Chief Executive
Officer, President, Chief Financial Officer and Secretary.
5.02 Co-Chairman of the Board. Each Co-Chairman shall have the
responsibility for the implementation of the policies determined by the Board of
Directors and for the administration of the business affairs of the Corporation.
Each Co-Chairman shall, if present, preside over the meetings of the Board and
of the stockholders on a rotating basis such that a Co-Chairman shall preside
over no more than one consecutive Board meeting or one consecutive stockholders
meeting.
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5.03 Chief Executive Officer. The Chief Executive Officer shall have the
responsibility for the active management of the business and general supervision
and direction of all of the affairs of the Corporation. The Chief Executive
Officer shall have the authority on the Corporation's behalf to endorse
securities owned by the Corporation and to execute any documents requiring the
signature of an executive officer. The Chief Executive Officer shall perform
such other duties as the Board of Directors may direct.
5.04 President. The President shall have the responsibility for the
active management of the day to day business of the Corporation. The President
shall perform such other duties as may be assigned by the Board of Directors or
the Chief Executive Officer
5.05 Vice Presidents. The Vice Presidents, in the order of priority
designated by the Board of Directors, shall be vested with all the power and may
perform all the duties of the Chief Executive Officer in the latter's absence.
They may perform such other duties as may be prescribed by the Board of
Directors or the Executive Committee or the Chief Executive Officer.
5.06 Chief Financial Officer. The Chief Financial Officer shall have
general supervision over the finances of the Corporation and shall perform such
other duties as may be assigned by the Board of Directors or the Chief Executive
Officer. If required by resolution of the Board, the Chief Financial Officer
shall furnish bond (which may be a blanket bond) with such surety and in such
penalty for the faithful performance of duty as the Board of Directors may from
time to time require, the cost of such bond to be defrayed by the Corporation.
5.07 Secretary. The Secretary shall keep the minutes of the meetings of
the stockholders and of the Board of Directors and shall attend to the giving
and serving of all notices of the Corporation required by law or these Bylaws.
The Secretary shall maintain at all times in the principal office of the
Corporation at least one copy of the Bylaws with all amendments to date, and
shall make the same, together with the minutes of the meetings of the
stockholders, the annual statement of affairs of the Corporation and any voting
trust or other stockholders agreement on file at the office of the Corporation,
available for inspection by any officer, director or stockholder during
reasonable business hours. The Secretary shall perform such other duties as may
be assigned by the Board of Directors.
5.08 Assistant Treasurer and Secretary. The Board of Directors may
designate from time to time Assistant Treasurers and Secretaries, who shall
perform such duties as may from time to time be assigned to them by the Board of
Directors or the Chief Executive Officer.
5.09. 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 Chief
Executive Officer's own) left to the discretion of the Chief Executive Officer.
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.
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5.10. 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 a Co-Chairman of the
Board (if any), the Chief Executive Officer, any Vice-President, the Secretary,
or the Chief Financial Officer 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 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
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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).
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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
(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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