BY-LAWS
OF
DEL WEBB CORPORATION
(the "Corporation")
(Effective November 1, 1994)
(as amended February 13, 1996)
(as amended February 10, 2000)
ARTICLE 1
OFFICES
SECTION 1.1 REGISTERED OFFICE. The registered office of the Corporation
shall be in the City of Wilmington, County of New Castle, State of Delaware.
SECTION 1.2 OTHER OFFICES. The Corporation may also have offices at such
other places both within and without the State of Delaware as the Board of
Directors or the officers may from time to time determine.
ARTICLE 2
MEETINGS OF STOCKHOLDERS
SECTION 2.1 PLACE OF MEETINGS. Meetings of the stockholders for the
election of directors or for any other purpose shall be held at such time and
place, either within or without the State of Delaware, as shall be designated
from time to time by the Board of Directors and stated in the notice of the
meeting or in a duly executed waiver of notice thereof.
SECTION 2.2 ANNUAL MEETINGS. The Annual Meetings of Stockholders shall be
held on such date and at such time as shall be designated from time to time by
the Board of Directors and stated in the notice of the meeting, at which
meetings the stockholders shall elect by a plurality vote members of the Board
of Directors in the class whose term shall expire at such Annual Meeting, and
transact such other business as may properly be brought before the meeting.
Written notice of the Annual Meeting stating the place, date and hour of the
meeting shall be given to each stockholder entitled to vote at such meeting not
less than ten nor more than sixty days before the date of the meeting.
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SECTION 2.3 SPECIAL MEETINGS. Unless otherwise prescribed by law or by the
Certificate of Incorporation, Special Meetings of Stockholders, for any purpose
or purposes, may be called by either the Chairman or the President and shall be
called by either such officer at the request in writing of a majority of the
Board of Directors. Such request shall state the purpose or purposes of the
proposed meeting. Written notice of a Special Meeting stating the place, date
and hour of the meeting and the purpose or purposes for which the meeting is
called shall be given not less than ten nor more than sixty days before the date
of the meeting to each stockholder entitled to vote at such meeting.
SECTION 2.4 QUORUM. Except as otherwise provided by law or by the
Certificate of Incorporation, the holders of a majority of the capital stock
issued and outstanding and entitled to vote thereat, present in person or
represented by proxy, shall constitute a quorum at all meetings of the
stockholders for the transaction of business. If, however, such quorum shall not
be present or represented at any meeting of the stockholders, the stockholders
entitled to vote thereat, present in person or represented by proxy, shall have
power to adjourn the meeting from time to time, without notice other than
announcement at the meeting, until a quorum shall be present or represented. At
such adjourned meeting at which a quorum shall be present or represented, any
business may be transacted which might have been transacted at the meeting as
originally noticed. If the adjournment is for more than thirty days, or if after
the adjournment a new record date is fixed for the adjourned meeting, a notice
of the adjourned meeting shall be given not less than ten nor more than sixty
days before the date of the adjourned meeting to each stockholder entitled to
vote at the meeting.
SECTION 2.5 VOTING. Unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, any question brought before any meeting of
stockholders shall be decided by the vote of the holders of a majority of the
stock represented and entitled to vote thereat. Each stockholder represented at
a meeting of stockholders shall be entitled to cast one vote for each share of
the capital stock entitled to vote thereat held by such stockholder. Such votes
may be cast in person or by proxy but no proxy shall be voted on or after three
years from its date, unless such proxy provides for a longer period. The Board
of Directors, in its discretion, or the officer of the Corporation presiding at
a meeting of stockholders, in such officer's discretion, may require that any
votes cast at such meeting shall be cast by written ballot.
SECTION 2.6 LIST OF STOCKHOLDERS ENTITLED TO VOTE. The officer of the
Corporation who has charge of the stock ledger of the Corporation shall prepare
and make, at least ten days before every meeting of stockholders, a complete
list of the stockholders entitled to vote at the meeting, arranged in
alphabetical order, and showing the address of each stockholder and the number
of shares registered in the name of each stockholder. Such list shall be open to
the examination of any stockholder, for any purpose germane to the meeting,
during ordinary business hours, for a period of at least ten days prior to the
meeting, either at a place within the city where the meeting is to be held,
which place shall be specified in the notice of the meeting, or, if not so
specified, at the place where the meeting is to be held. The list shall also be
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produced and kept at the time and place of the meeting during the whole time
thereof, and may be inspected by any stockholder of the Corporation who is
present.
SECTION 2.7 STOCK LEDGER. The stock ledger of the Corporation shall be the
only evidence as to who are the stockholders entitled to examine the stock
ledger, the list required by Section 2.6 or the books of the Corporation, or to
vote in person or by proxy at any meeting of stockholders. Any good faith
decision in regard to such matters by the officer of the Corporation who has
charge of the stock ledger of the Corporation, which may be the Secretary, any
Assistant Secretary or any other appropriate officer of the Corporation, shall
be final.
SECTION 2.8 NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the Corporation. Nominations of persons for election to the Board
of Directors may be made at any Annual Meeting of Stockholders (a) by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (b) by any stockholder of the Corporation (i) who is a stockholder of record
on the date of the giving of the notice provided for in this Section 2.8 and on
the record date for the determination of stockholders entitled to vote at such
Annual Meeting and (ii) who com-plies with the notice procedures set forth in
this Section 2.8.
In addition to any other applicable requirements, for a nomination to be
made by a stockholder, such stockholder must have given timely notice thereof in
proper written form to the Secretary of the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Company (a) in
the case of an Annual Meeting, not less than sixty days nor more than ninety
days prior to the anniversary date of the immediately pre-ceding Annual Meeting
of Stockholders; provided, however, that in the event that the Annual Meeting is
called for a date that is not within thirty days before or after such
anniversary date, notice by the stockholder in order to be timely must be so
received not later than the close of business on the tenth day following the day
on which such notice of the date of the Annual Meeting was mailed or such public
disclosure of the date of the Annual Meeting was made, whichever first occurs;
and (b) in the case of a special meeting of stockholders called for the purpose
of electing directors, not later than the close of business on the tenth day
following the day on which notice of the date of the special meeting was mailed
or public disclosure of the date of the special meeting was made, whichever
first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth (a) as to each person whom the stockholder proposes to nominate for
election as a director (i) the name, age, business address and residence address
of the person, (ii) the principal occupation or employment of the person, (iii)
the class or series and number of shares of capital stock of the Company which
are owned beneficially or of record by the person and (iv) any other information
relating to the person that would be required to be disclosed in a proxy
statement or other filings required to be made in connection with solicitations
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of proxies for election of directors pursuant to Section 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations promulgated thereunder; and (b) as to the stockholder giving the
notice (i) the name and record address of such stockholder, (ii) the class or
series and number of shares of capital stock of the Company which are owned
beneficially or of record by such stockholder, (iii) a description of all
arrangements or understandings between such stockholder and each proposed
nominee and any other person or persons (including their names) pursuant to
which the nomination(s) are to be made by such stockholder, (iv) a
representation that such stockholder intends to appear in person or by proxy at
the meeting to nominate the persons named in its notice and (v) any other
information relating to such stockholder that would be required to be disclosed
in a proxy statement or other filings required to be made in connection with
solicitations of proxies for election of directors pursuant to Section 14 of the
Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named
as a nominee and to serve as a director if elected.
Notwithstanding compliance with the foregoing provisions, the Board of
Directors shall not be obligated to include information as to any stockholder
nominee for director in any proxy statement or other communication sent to
stockholders.
No person shall be eligible for election as a director of the Corporation
unless nominated in accordance with the procedures set forth in this Section
2.8. If the Chairman of the meeting determines that a nomination was not made in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the nomination was defective and such defective nomination shall be
disregarded.
SECTION 2.9 BUSINESS AT ANNUAL MEETINGS. No business may be transacted at
an Annual Meeting of Stockholders, other than business that is either (a)
specified in the notice of meeting (or any supplement thereto) given by or at
the direction of the Board of Directors (or any duly authorized committee
thereof), (b) otherwise properly brought before the Annual Meeting by or at the
direction of the Board of Directors (or any duly authorized committee thereof)
or (c) otherwise properly brought before the Annual Meeting by any stockholder
of the Corporation (i) who is a stockholder of record on the date of the giving
of the notice provided for in this Section 2.9 and on the record date for the
determination of stockholders entitled to vote at such Annual Meeting and (ii)
who com-plies with the notice procedures set forth in this Section 2.9.
In addition to any other applicable requirements, for business to be
properly brought before an Annual Meeting by a stockholder, such stockholder
must have given timely notice thereof in proper written form to the Secretary of
the Corporation.
To be timely, a stockholder's notice to the Secretary must be delivered to
or mailed and received at the principal executive offices of the Company not
less than sixty days nor more than ninety days prior to the anniversary date of
the immediately preceding Annual Meeting of Stockholders; provided, however,
that in the event that the Annual Meeting is called for a date that is not
within thirty days before or after such anniversary date, notice by the
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stockholder in order to be timely must be so received not later than the close
of business on the tenth day following the day on which such notice of the date
of the Annual Meeting was mailed or such public disclosure of the date of the
Annual Meeting was made, whichever first occurs.
To be in proper written form, a stockholder's notice to the Secretary must
set forth as to each matter such stockholder proposes to bring before the Annual
Meeting (i) a brief description of the business desired to be brought before the
Annual Meeting and the reasons for conducting such business at the Annual
Meeting, (ii) the name and record address of such stockholder, (iii) the class
or series and number of shares of capital stock of the Corporation that are
owned beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the Annual Meeting to bring such business before the
meeting.
No business shall be conducted at the Annual Meeting of Stockholders except
business brought before the Annual Meeting in accordance with the procedures set
forth in this Section 2.9, provided, however, that, once business has been
properly brought before the Annual Meeting in accordance with such procedures,
nothing in this Section 2.9 shall be deemed to preclude discussion by any
stockholder of any such business. If the Chairman of an Annual Meeting
determines that business was not properly brought before the Annual Meeting in
accordance with the foregoing procedures, the Chairman shall declare to the
meeting that the business was not properly brought before the meeting and such
business shall not be transacted.
ARTICLE 3
DIRECTORS
SECTION 3.1 ELECTION OF DIRECTORS. Directors shall be elected by a
plurality of the votes cast at Annual Meetings of Stockholders. Any director may
resign at any time upon notice to the Corporation. Directors need not be
stockholders.
SECTION 3.2 DUTIES AND POWERS. The business of the Corporation shall be
managed by or under the direction of the Board of Directors which may exercise
all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By-Laws
directed or required to be exercised or done by the stockholders.
SECTION 3.3 MEETINGS. The Board of Directors of the Corporation may hold
meetings both regular and special, either within or without the State of
Delaware. Regular meetings of the Board of Directors may be held without notice
at such time and at such place as may from time to time be determined by the
Board of Directors. Special meetings of the Board of Directors may be called by
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the Chairman or the President or by a majority of the directors then in office.
Notice thereof stating the place, date and hour of the meeting shall be given to
each director either by mail not less than forty-eight hours before the date of
the meeting, by telephone, facsimile or telegram on twenty-four hours notice, or
on such shorter notice as the person or persons calling such meeting may deem
necessary or appropriate in the circumstances.
SECTION 3.4 QUORUM. Except as may be otherwise specifically provided by
law, the Certificate of Incorporation or these By-Laws, at all meetings of the
Board of Directors, a majority of the entire Board of Directors shall constitute
a quorum for the transaction of business and the act of a majority of the
directors present at any meeting at which there is a quorum shall be the act of
the Board of Directors. If a quorum shall not be present at any meeting of the
Board of Directors, the directors present thereat may adjourn the meeting from
time to time, without notice other than announcement at the meeting, until a
quorum shall be present.
SECTION 3.5 ACTIONS OF BOARD. Unless otherwise provided by the Certificate
of Incorporation or these By-Laws, any action required or permitted to be taken
at any meeting of the Board of Directors or of any committee thereof may be
taken without a meeting, if all the members of the Board of Directors or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board of Directors or
committee.
SECTION 3.6 MEETINGS BY MEANS OF CONFERENCE TELEPHONE. Unless otherwise
provided by the Certificate of Incorporation or these By-Laws, members of the
Board of Directors of the Corporation, or any committee designated by the Board
of Directors, may participate in a meeting of the Board of Directors or such
committee by means of a conference telephone or similar communications equipment
by means of which all persons participating in the meeting can hear each other,
and participation in a meeting pursuant to this Section 3.6 shall constitute
presence in person at such meeting.
SECTION 3.7 COMMITTEES. The Board of Directors may, by resolution passed by
a majority of the entire Board of Directors, designate one or more committees,
each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of any such committee. In the absence or disqualification of a member of
a committee, and in the absence of a designation by the Board of Directors of an
alternate member to replace the absent or disqualified member, the member or
members thereof present at any meeting and not disqualified from voting, whether
or not he or they constitute a quorum, may unanimously appoint another member of
the Board of Directors to act at the meeting in the place of any absent or
disqualified member. A majority of the members of a committee, including any
alternate members, shall constitute a quorum of such committee. Any committee,
to the extent allowed by law and provided in the resolution establishing such
committee, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the Corporation.
Each committee shall keep regular minutes and report to the Board of Directors
when required.
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SECTION 3.8 COMPENSATION. The directors may be paid their expenses, if any,
of attendance at each meeting of the Board of Directors and may be paid a fixed
sum for attendance at each meeting of the Board of Directors or a stated salary
as director. No such payment shall preclude any director from serving the
Corporation in any other capacity and receiving compensation therefore. Members
of special or standing committees may be allowed like compensation for attending
committee meetings. In addition, the Board of Directors may adopt one or more
director compensation plans using securities of the Corporation.
SECTION 3.9 INTERESTED DIRECTORS. No contract or transaction between the
Corporation and one or more of its directors or officers, or between the
Corporation and any other corporation, partnership, association, or other
organization in which one or more of its directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or committee thereof which
authorizes the contract or transaction, or solely because such director's vote
is counted for such purpose if (i) the material facts as to such director's
relationship or interest and as to the contract or transaction are disclosed or
are known to the Board of Directors or the committee, and the Board of Directors
or committee in good faith authorizes the contract or transaction by the
affirmative votes of a majority of the disinterested directors, even though the
disinterested directors be less than a quorum; or (ii) the material facts as to
such director's relationship or interest and as to the contract or transaction
are disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (iii) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified, by the Board of
Directors, a committee thereof or the stockholders. Interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of
Directors or of a committee which authorizes the contract or transaction.
ARTICLE 4
OFFICERS
SECTION 4.1 GENERAL. The officers of the Corporation shall be chosen by the
Board of Directors and may include a President, a Secretary and a Treasurer. The
Board of Directors, in its discretion, may also choose a Chairman of the Board
of Directors (who must be a director) and one or more Vice Presidents, Assistant
Secretaries, Assistant Treasurers and other officers. Any number of offices may
be held by the same person, unless otherwise prohibited by law, the Certificate
of Incorporation or these By-Laws. The officers of the Corporation need not be
stockholders of the Corporation nor, except in the case of the Chairman of the
Board of Directors, need such officers be directors of the Corporation. The
officers of the Corporation may sign and execute documents on behalf of the
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Corporation, whether requiring a seal or otherwise, when authorized by these
By-Laws, the Board of Directors, the Chairman or President.
SECTION 4.2 ELECTION. The Board of Directors at its first meeting held
after each Annual Meeting of Stockholders shall elect the officers of the
Corporation who shall hold their offices for such terms and shall exercise such
powers and perform such duties as shall be determined from time to time by the
Board of Directors; and all officers of the Corporation shall hold office until
their successors are chosen and qualified, or until their earlier resignation or
removal. Any officer elected by the Board of Directors may be removed at any
time by the affirmative vote of a majority of the Board of Directors. Any
vacancy occurring in any office of the Corporation shall be filled by the Board
of Directors. The salaries of all officers of the Corporation shall be fixed by
the Board of Directors or by a committee thereof.
SECTION 4.3 VOTING SECURITIES OWNED BY THE CORPORATION. Powers of attorney,
proxies, waivers of notice of meeting, consents and other instruments relating
to securities owned by the Corporation may be executed in the name of and on
behalf of the Corporation by the Chairman, President or any Vice President and
any such officer may, in the name of and on behalf of the Corporation, take all
such action as any such officer may deem advisable to vote in person or by proxy
at any meeting of security holders of any corporation in which the Corporation
may own securities and at any such meeting shall possess and may exercise any
and all rights and power incident to the ownership of such securities and which,
as the owner thereof, the Corporation might have exercised and possessed if
present. The Board of Directors may, by resolution, from time to time confer
like powers upon any other person or persons.
SECTION 4.4 (as amended February 10, 2000) CHAIRMAN OF THE BOARD OF
DIRECTORS. The Chairman of the Board of Directors, if there be one, shall
preside at all meetings of the stockholders and of the Board of Directors.
During the absence or disability of the President, the Chairman of the Board of
Directors shall exercise all the powers and discharge all the duties of the
President. The Chairman of the Board of Directors shall also perform such other
duties and may exercise such other powers as from time to time may be assigned
to the Chairman by these By-Laws or by the Board of Directors. All officers of
the Corporation shall be under the supervision of the Chairman, if there be one,
and shall perform all such duties as shall be assigned by the Chairman.
SECTION 4.5 (as amended February 10, 2000) PRESIDENT. The President, if
there shall be one, shall, subject to the control of the Board of Directors and,
if there be one, the Chairman of the Board of Directors, have general
supervision of the business of the Corporation and shall see that all orders and
resolutions of the Board of Directors are carried into effect. In the absence or
disability of the Chairman of the Board of Directors, or if there be none, the
President shall preside at all meetings of the stockholders and the Board of
Directors. The President shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to the President by these
By-Laws, by the Board of Directors or by the Chairman.
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SECTION 4.6 (as amended February 10, 2000) CHIEF EXECUTIVE OFFICER. There
shall be a Chief Executive Officer appointed by the Board of Directors. The
Chairman of the Board of Directors or the President shall be the Chief Executive
Officer. Subject to the control of the Board of Directors, the Chief Executive
Officer shall be the principal executive of the Corporation, responsible for
supervision and direction of the business of the Corporation. All officers of
the Corporation shall be under the supervision of the Chief Executive Officer,
and shall perform all such duties as shall be assigned by the Chief Executive
Officer.
SECTION 4.7 (as amended February 10, 2000) VICE PRESIDENTS. At the request
of the President or in the President's absence or in the event of the
President's in-ability or refusal to act (and if there be no Chair-man of the
Board of Directors), the Vice President or the Vice Presidents if there is more
than one (in the order designated by the Board of Directors) 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. Each Vice President shall
perform such other duties and have such other powers as the Board of Directors,
Chairman and/or the President from time to time may pre-scribe.
SECTION 4.8 (as amended February 10, 2000) SECRETARY. The Secretary shall
attend all meetings of the Board of Directors and all meetings of stockholders
and record all the proceedings thereat in a book or books to be kept for that
purpose; the Secretary shall also perform like duties for the standing
committees when requested or appropriate. The Secretary shall give, or cause to
be given, notice of all meetings of the stockholders and special meetings of the
Board of Directors, and shall perform such other duties as may be prescribed by
the Board of Directors, Chairman or President. If the Secretary shall be unable
or shall refuse to cause to be given notice of all meetings of the stockholders
and special meetings of the Board of Directors, and if there be no Assistant
Secretary, then either the Board of Directors or the President may choose
another officer to cause such notice to be given. The Secretary shall have
custody of the seal of the Corporation, if there is one, and the Secretary or
any Assistant Secretary, shall have authority to affix the same to any
instrument requiring it and when so affixed, it may be attested by the signature
of the Secretary or by the signature of any Assistant Secretary. The Board of
Directors may give general authority to any other officer to affix the seal of
the Corporation and to attest the affixing by such officer's signature. The
Secretary shall see that all books, reports, statements, certificates and other
documents and records required by law to be kept or filed are properly kept or
filed, as the case may be.
SECTION 4.9 (as amended February 10, 2000) TREASURER. The Treasurer shall
supervise the maintenance of the corporate funds and securities and shall keep
full and accurate accounts of receipts and disbursements in books belonging to
the Corporation and shall deposit all moneys and other valuable effects in the
name and to the credit of the Corporation in such depositories as may be
designated by the Board of Directors or Chairman. The Treasurer shall disburse
the funds of the Corporation as may be ordered by the Board of Directors,
Chairman or President for such disbursements, and shall render to the Chairman,
President and the Board of Directors, at its regular meetings, or when the Board
of Directors or Chairman so requires, an account of all transactions as
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Treasurer and of the financial condition of the Corporation. The Treasurer shall
perform such other duties and have such powers as the Board of Directors,
Chairman and/or President from time to time may prescribe. If required by the
Board of Directors or Chairman, the Treasurer shall give the Corporation a bond
in such sum and with such surety or sureties as shall be satisfactory to the
Board of Directors or Chairman for the faithful performance of the duties of
such office and for the restoration to the Corporation, in case of the
Treasurer's death, resignation, retirement or removal from office, of all books,
papers, vouchers, money and other property of whatever kind in the Treasurer's
possession or under such officer's control belonging to the Corporation.
SECTION 4.10 (as amended February 10, 2000) ASSISTANT SECRETARIES.
Assistant Secretaries, if there be any, shall perform such duties and have such
powers as from time to time may be assigned to them by the Board of Directors,
the Chairman, the President, any Vice President, if there be one, or the
Secretary, and in the absence of the Secretary or in the event of such officer's
disability or refusal to act, shall perform the duties of the Secretary, and
when so acting, shall have all the powers of and be subject to all the
restrictions upon the Secretary.
SECTION 4.11 (as amended February 10, 2000) ASSISTANT TREASURERS. Assistant
Treasurers, if there be any, shall perform such duties and have such powers as
from time to time may be assigned to them by the Board of Directors, the
Chairman, the President, any Vice President, if there be one, or the Treasurer,
and in the absence of the Treasurer or in the event of such officer's disability
or refusal to act, shall perform the duties of the Treasurer, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the Treasurer. If required by the Board of Directors or Chairman, an Assistant
Treasurer shall give the Corporation a bond in such sum and with such surety or
sureties as shall be satisfactory to the Board of Directors or Chairman for the
faithful performance of the duties of such officer's office and for the
restoration to the Corporation, in case of the Assistant Treasurer's death,
resignation, retirement or removal from office, of all books, papers, vouchers,
money and other property of whatever kind in such officer's possession or under
such officer's control belonging to the Corporation.
SECTION 4.12 (as amended February 10, 2000) OTHER OFFICERS. Such other
officers as the Board of Directors may choose shall perform such duties and have
such powers as from time to time may be assigned to them by the Board of
Directors, Chairman, or President. The Board of Directors may delegate to any
other officer of the Corporation the power to choose such other officers and to
prescribe their respective duties and powers.
ARTICLE 5
STOCK
SECTION 5.1 FORM OF CERTIFICATES. Every holder of stock in the Corporation
shall be entitled to have a certificate signed, in the name of the Corporation
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(i) by the Chairman of the Board of Directors, the President or a Vice President
and (ii) by the Treasurer or an Assistant Treasurer, or the Secretary or an
Assistant Secretary of the Corporation, certifying the number of shares owned by
such holder in the Corporation.
SECTION 5.2 SIGNATURES. Where a certificate is countersigned by (i) a
transfer agent other than the Corporation or its employee, or (ii) a registrar
other than the Corporation or its employee, any other signature on the
certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate
shall have ceased to be such officer, transfer agent or registrar before such
certificate is issued, it may be issued by the Corporation with the same effect
as if such person were such officer, transfer agent or registrar at the date of
issue.
SECTION 5.3 LOST CERTIFICATES. The Secretary may direct a new certificate
to be issued in place of any certificate theretofore issued by the Corporation
alleged to have been lost, stolen or destroyed, upon the making of an affidavit
of that fact by the person claiming the certificate of stock to be lost, stolen
or destroyed. When authorizing such issue of a new certificate, the Secretary
may, in such officer's discretion and as a condition precedent to the issuance
thereof, require the owner of such lost, stolen or destroyed certificate, or
such owner's legal representative, to advertise the same in such manner as the
Secretary shall require and/or to give the Corporation a bond in such sum as it
may direct as indemnity against any claim that may be made against the
Corporation with respect to the certificate alleged to have been lost, stolen or
destroyed.
SECTION 5.4 TRANSFERS. Stock of the Corporation shall be transferable in
the manner prescribed by law and in these By-Laws. Transfers of stock shall be
made on the books of the Corporation only by the person named in the certificate
or by such person's attorney lawfully constituted in writing and upon the
surrender of the certificate therefor, which shall be cancelled before a new
certificate shall be issued.
SECTION 5.5 RECORD DATE. In order that the Corporation may determine the
stockholders entitled to notice of or to vote at any meeting of stockholders or
any adjournment thereof, or entitled to receive payment of any dividend or other
distribution or allotment of any rights, or entitled to exercise any rights in
respect of any change, conversion or exchange of stock, or for the purpose of
any other lawful action, the Board of Directors may fix, in advance, a record
date, which shall not be more than sixty days nor less than ten days before the
date of such meeting, nor more than sixty days prior to any other action. A
determination of stockholders of record entitled to notice of or to vote at a
meeting of stockholders shall apply to any adjournment of the meeting; provided,
however, that the Board of Directors may fix a new record date for the adjourned
meeting.
SECTION 5.6 BENEFICIAL OWNERS. The Corporation shall be entitled to
recognize the exclusive right of a person registered on its books as the owner
of shares to receive dividends, and to vote as such owner, and to hold liable
for calls and assessments a person registered on its books as the owner of
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shares, and shall not be bound to recognize any equitable or other claim to or
interest in such share or shares on the part of any other person, whether or not
it shall have express or other notice thereof, except as otherwise provided by
law.
ARTICLE 6
STOCK REPURCHASES
SECTION 6.1 In addition to any affirmative vote of stockholders required by
any provision of law or the Certificate of Incorporation of this Corporation or
by these By-Laws, the Corporation shall not, directly or indirectly, purchase or
agree to purchase any equity security of a class of securities which is
registered pursuant to Section 12 of the Exchange Act issued by the Corporation
from any Person or two or more Persons who act as a partnership, limited
partnership, syndicate, or other group pursuant to any agreement, arrangement,
relationship, understanding, or otherwise, whether or not in writing, for the
purpose of acquiring, owning, or voting shares of the Corporation, who is the
Beneficial Owner of more than five percent of the aggregate voting power of the
Corporation for more than the Average Market Price of the shares, unless (i) the
purchase or agreement to purchase is approved at a meeting of the stockholders
by the affirmative vote of the holders of a majority of the aggregate voting
power of all shares entitled to vote, except that no Interested Shares shall be
entitled to vote on the question of such approval or (ii) the Corporation makes
an offer of at least equal value per share to all holders of shares of the same
class or series and to all holders of any class or series into which the
securities may be converted.
For purposes of this By-Law, the following definitions apply:
6.1.1. "Average Market Price" shall mean the average closing sale price
during the thirty trading days immediately preceding the purchase of the share
in question, or if the Person or Persons have commenced a tender offer or have
announced an intention to seek control of the Corporation, during the thirty
trading days preceding the earlier of the commencement of the tender offer or
the making of the announcement, of a share on the composite tape for New York
stock Exchange listed shares or, if the shares are not quoted on the composite
tape or not listed on the New York stock exchange, on the principal United
States securities exchange registered under the Exchange Act on which the shares
are listed or, if the shares are not listed on any such exchange, on the
national association of securities dealers, inc. automated quotations national
market system or, if the shares are not quoted on the national association of
securities dealers, inc. automated quotations national market system, the
average closing bid quotation, during the thirty trading days preceding the
purchase of the shares in question of a share on the national association of
securities dealers, inc. automated quotations system or any system then in use,
or if the Person or Persons have commenced a tender offer or have announced an
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intention to seek control of the Corporation, during the thirty trading days
preceding the earlier of the commencement of the tender offer or the making of
the announcement, except that if no quotation is available, the average market
price is the fair market value on the date of purchase of the shares in question
of a share as determined in good faith by the Board of Directors of the
Corporation.
6.1.2. "Beneficial Owner" shall have the meaning ascribed to it in Rule
13d-3 and Rule 13d-5 of the General Rules and Regulations under the Exchange
Act, as in effect on June 30, 1994.
6.1.3. "Interested Shares" shall mean all outstanding shares of capital
stock of the Corporation entitled to vote generally in the election of directors
that are beneficially owned by any Person or Persons that is the direct or
indirect Beneficial Owner of more than five percent of the aggregate voting
power of the Corporation.
6.1.4. "Person" shall mean any individual, partnership, firm,
corporation, association, trust, unincorporated organization, or other entity,
as well as any syndicate or group deemed to be a Person pursuant to Section
13(d)(3) of the Exchange Act, as in effect on June 30, 1994, other than the
Corporation or any subsidiary of the Corporation.
ARTICLE 7
NOTICES
SECTION 7.1 NOTICES. Whenever written notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, such notice may be given by mail,
addressed to such director, member of a committee or stockholder, at such
person's address as it appears on the records of the Corporation, with postage
thereon prepaid or such notice may be given personally, by facsimile, overnight
delivery, telegram, telex, or cable at such address. Such notice shall be deemed
to be given at the earlier of receipt of such notice or at the time when the
same shall be deposited in the United States mail or otherwise transmitted.
SECTION 7.2 WAIVERS OF NOTICE. Whenever any notice is required by law, the
Certificate of Incorporation or these By-Laws, to be given to any director,
member of a committee or stockholder, a waiver thereof in writing, signed, by
the person or persons entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent thereto.
ARTICLE 8
GENERAL PROVISIONS
SECTION 8.1 DIVIDENDS. Dividends upon the capital stock of the Corporation,
subject to the provisions of the Certificate of Incorporation, if any, may be
declared by the Board of Directors at any regular or special meeting, and may be
paid in cash, in property, or in shares of the capital stock. Before payment of
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any dividend, there may be set aside out of any funds of the Corporation
available for dividends such sum or sums as the Board of Directors from time to
time, in its absolute discretion, deems proper as a re-serve or reserves for any
proper purpose, and the Board of Directors may modify or abolish any such
reserve.
SECTION 8.2 DISBURSEMENTS. All checks or demands for money and notes of the
Corporation shall be signed by such officer or officers or such other person or
persons as the Board of Directors may from time to time designate.
SECTION 8.3 FISCAL YEAR. The fiscal year of the Corporation shall be fixed
by resolution of the Board of Directors.
SECTION 8.4 CORPORATE SEAL. The Corporation may have a corporate seal,
which shall have inscribed thereon the words "Corporate Seal". The seal may be
used by causing it or a facsimile thereof to be impressed or affixed or
reproduced or otherwise. However, nothing in these By-Laws or in the Certificate
of Incorporation of the Corporation shall be construed to require a corporate
seal to be affixed to any document.
SECTION 8.5 (Added by Amendment dated February 13, 1996) ELECTION NOT TO BE
SUBJECT TO ARIZONA CONTROL SHARE ACQUISITION STATUTE. The Corporation elects not
to be subject to Title 10, Chapter 23, Article 2 of the Arizona Revised
Statutes, relating to "Control Share Acquisitions".
ARTICLE 9
AMENDMENTS
SECTION 9.1 These By-Laws may be altered, amended or repealed, in whole or
in part, or new By-Laws may be adopted by the stockholders or by the Board of
Directors; provided, however, that notice of such alteration, amendment, repeal
or adoption of new By-Laws be contained in the notice of such meeting of
stockholders or Board of Directors as the case may be. All such amendments must
be approved by either the holders of a majority of the outstanding capital stock
entitled to vote thereon or by a majority of the entire Board of Directors then
in office.
SECTION 9.2 ENTIRE BOARD OF DIRECTORS. As used in this Article and in these
By-Laws generally, the term "entire Board of Directors" means the total number
of directors which the Corporation would have if there were no vacancies.
I hereby certify that the above and foregoing Bylaws are a true and
correct copy of the Bylaws of Del Webb Corporation, adopted effective November
1, 1994.
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Donald V. Mickus, Secretary
