BYLAWS OF ENOVA CORPORATION
RESTATED AS OF JANUARY 27, 1997
ARTICLE ONE
CORPORATE MANAGEMENT
The business and affairs of the Corporation shall be managed, and
all corporate powers shall be exercised, by or under the direction of
the Board of Directors ("the Board"), subject to the Articles of
Incorporation and the California Corporations Code.
ARTICLE TWO
OFFICERS
Section 1. Designation. The officers of the Corporation shall
consist of a Chairman of the Board (the "Chairman") or a President, or
both, one or more Vice Presidents, a Secretary, one or more Assistant
Secretaries, a Treasurer, one or more Assistant Treasurers, a
Controller, one or more Assistant Controllers, and such other officers
as the Board may from time to time elect. Any two or more of such
offices may be held by the same person.
Section 2. Term. The officers shall be elected by the Board as
soon as possible after the annual meeting of the Shareholders, and shall
hold office for one year or until their successors are duly elected.
Any officers may be removed from office at any time, with or without
cause, by the vote of a majority of the authorized number of Directors.
The Board may fill vacancies or elect new officers at any time.
Section 3. Chairman. The Chairman shall preside over meetings of
the Shareholders and of the Board, make a full report to each
Shareholders' annual meeting covering the next preceding fiscal year,
and perform all other duties designated by the Board.
Section 4. The President. The President shall have the general
management and direction of the affairs of the Corporation, subject to
the control of the Board. In the absence or disability of the Chairman,
the President shall perform the duties and exercise the powers of the
Chairman.
Section 5. Vice Presidents. The Vice Presidents, one of whom
shall be the Chief Financial Officer, shall have such duties as the
President or the Board shall designate.
Section 6. Chief Financial Officer. The Chief Financial Officer
shall be responsible for the issuance of securities and the management
of the Corporation's cash, receivables and temporary investments.
Section 7. Secretary and Assistant Secretary. The Secretary
shall attend all meetings of the Shareholders and the Board, keep a true
and accurate record of the proceedings of all such meetings and attest
the same by his or her signature, have charge of all books, documents
and papers which appertain to the office, have custody of the corporate
seal and affix it to all papers and documents requiring sealing, give
all notices of meetings, have the custody of the books of stock
certificates and transfers, issue all stock certificates, and perform
all other duties usually appertaining to the office and all duties
designated by the bylaws, the President or the Board. In the absence of
the Secretary, any Assistant Secretary may perform the duties and shall
have the powers of the Secretary.
Section 8. Treasurer and Assistant Treasurer. The Treasurer shall
perform all duties usually appertaining to the office and all duties
designated by the President or the Board. In the absence of the
Treasurer, any Assistant Treasurer may perform the duties and shall have
all the powers of the Treasurer.
Section 9. Controller and Assistant Controller. The Controller
shall be responsible for establishing financial control policies for the
Corporation, shall be its principal accounting officer, and shall perform
all duties usually appertaining to the office and all duties designated
by the President or the Board. In the absence of the Controller, any
Assistant Controller may perform the duties and shall have all the powers
of the Controller.
Section 10. Chief Executive Officer. Either the Chairman or the
President shall be the Chief Executive Officer.
Section 11. Chief Operating Officer. Either the President or any
Vice President shall be the Chief Operating Officer.
ARTICLE THREE
DIRECTORS
Section 1. Number. The authorized number of Directors shall be
determined as set forth in the Articles of Incorporation
Section 2. Election. A Board shall be elected as set forth in
the Articles of Incorporation. Any candidate nominated by management
for election to the Board shall be so nominated without regard to his or
her sex, race, color or creed.
Section 3. Vacancies. Vacancies in the Board may be filled as
set forth in the Articles of Incorporation.
Section 4. Compensation. Members of the Board shall receive such
compensation as the Board may from time to time determine.
Section 5. Regular Meetings. A regular meeting of the Board shall
be held without other notice than this bylaw immediately after each
annual meeting of the Shareholders, and at such other times as provided
for by resolution, at the principal office of the Corporation. The
Board may cancel, or designate a different date, time or place for any
regular meeting.
Section 6. Special Meetings. Special meetings of the Board may
be called at any time by the Chairman, the President, or any two
Directors.
Section 7. Notice of Meetings. Written notice shall be given to
each Director of the date, time and place of each regular meeting and
each special meeting of the Board. If given by mail, such notice shall
be mailed to each Director at least four days before the date of such
meeting, or such notice may be given to each Director personally or by
telegram at least 48 hours before the time of such meeting. Every
notice of special meeting shall state the purpose for which such meeting
is called. Notice of a meeting need not be given to any Director who
signs a waiver of notice, whether before or after the meeting, or who
attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to such Director.
Section 8. Quorum. A majority of the authorized number of
Directors shall be necessary to constitute a quorum for the transaction
of business, and every act or decision of a majority of the Directors
present at a meeting at which a quorum is present shall be valid as the
act of the Board, provided that a meeting at which a quorum is initially
present may continue to transact business, notwithstanding the
withdrawal of Directors, if any action taken is approved by at least a
majority of the required quorum for such meeting. A majority of
Directors present at any meeting, in the absence of a quorum, may
adjourn to another time.
Section 9. Action Upon Consent. Any action required or permitted
to be taken by the Board may be taken without a meeting, if all members
of the Board shall individually or collectively consent in writing to
such action.
Section 10. Telephonic Participation. Members of the Board may
participate in a meeting through use of a conference telephone or
similar communications equipment, so long as all members participating
in the meeting can hear one another. Such participation constitutes
presence in person at the meeting.
Section 11. Directors Emeritus. The Board may from time to time
elect one or more Directors Emeritus. Each Director Emeritus shall have
the privilege of attending meetings of the Board, upon invitation of the
Chairman or the President. No Director Emeritus shall be entitled to
vote on any business coming before the Board or be counted as a member of
the Board for any purpose whatsoever.
ARTICLE FOUR
COMMITTEES
Section 1. Executive Committee. The Board shall appoint an
Executive Committee. The Chairman shall be ex officio the Chairman
thereof, unless the Board shall appoint another member as Chairman. The
Executive Committee shall be composed of members of the Board, and shall
at all times be subject to its control. The Executive Committee shall
have all the authority of the Board, except with respect to:
(a) The approval of any action which also requires Shareholders'
approval.
(b) The filling of vacancies on the Board or on any committee.
(c) The fixing of compensation of the Directors for serving on the
Board or on any committee.
(d) The amendment or repeal of bylaws or the adoption of new
bylaws.
(e) The amendment or repeal of any resolution of the Board which
by its express terms is not so amendable or repealable.
(f) A distribution to the Shareholders.
(g) The appointment of other committees of the Board or the
members thereof.
Section 2. Audit Committee. The Board shall appoint an Audit
Committee comprised solely of Directors who are neither officers nor
employees of the Corporation and who are free from any relationship that,
in the opinion of the Board, would interfere with the exercise of
independent judgment as committee members. The Audit Committee shall
review and make recommendations to the Board with respect to:
(a) The engagement of an independent accounting firm to audit the
Corporation's financial statements and the terms of such
engagement.
(b) The policies and procedures for maintaining the Corporation's
books and records and for furnishing appropriate information
to the independent auditor.
(c) The evaluation and implementation of any recommendations made
by the independent auditor.
(d) The adequacy of the Corporation's internal audit controls and
related personnel.
(e) Such other matters relating to the Corporation's financial
affairs and accounts as the Committee deems desirable.
Section 3. Other Committees. The Board may appoint such other
committees of its members as it shall deem desirable, and, within the
limitations specified for the Executive Committee, may vest such
committees with such powers and authorities as it shall see fit, and all
such committees shall at all times be subject to its control.
Section 4. Notice of Meetings. Notice of each meeting of any
committee of the Board shall be given to each member of such committee,
and the giving of such notice shall be subject to the same requirements
as the giving of notice of meetings of the Board, unless the Board shall
establish different requirements for the giving of notice of committee
meetings.
Section 5. Conduct of Meetings. The provisions of these bylaws
with respect to the conduct of meetings of the Board shall govern the
conduct of committee meetings. Written minutes shall be kept of all
committee meetings.
ARTICLE FIVE
SHAREHOLDER MEETINGS
Section 1. Annual Meeting. The annual meeting of the
Shareholders shall be held on a date and at a time fixed by the Board.
Section 2. Special Meetings. Special meetings of the
Shareholders for any purpose whatsoever may be called at any time by the
Chairman, the President, or the Board, or by one or more Shareholders
holding not less than one-tenth of the voting power of the Corporation.
Section 3. Place of Meetings. All meetings of the Shareholders
shall be held at the principal office of the Corporation in San Diego,
California or at such other locations as may be designated by the Board.
Section 4. Notice of Meetings. Written notice shall be given to
each Shareholder entitled to vote of the date, time, place and general
purpose of each meeting of Shareholders. Notice may be given
personally, or by mail, or by telegram, charges prepaid, to the
Shareholder's address appearing on the books of the Corporation. If a
Shareholder supplies no address to the Corporation, notice shall be
deemed to be given if mailed to the place where the principal office of
the Corporation is situated, or published at least once in some
newspaper of general circulation in the county of said principal office.
Notice of any meeting shall be sent to each Shareholder entitled thereto
not less than 10 or more than 60 days before such meeting.
Section 5. Voting. The Board may fix a time in the future not
less than 10 or more than 60 days preceding the date of any meeting of
Shareholders, or not more than 60 days preceding the date fixed for the
payment of any dividend or distribution, or for the allotment of rights,
or when any change or conversion or exchange of shares shall go into
effect, as a record date for the determination of the Shareholders
entitled to notice of and to vote at any such meeting or entitled to
receive any such dividend or distribution, or any such allotment of
rights, or to exercise the rights in respect to any such change,
conversion, or exchange of shares. In such case only Shareholders of
record at the close of business on the date so fixed shall be entitled
to notice of and to vote at such meeting or to receive such dividend,
distribution or allotment of rights, or to exercise such rights, as the
case may be, notwithstanding any transfer of any shares on the books of
the Corporation after any record date fixed as aforesaid. The Board may
close the books of the Corporation against any transfer of shares during
the whole or any part of such period.
Section 6. Quorum. At any Shareholders' meeting a majority of
the shares entitled to vote must be represented in order to constitute a
quorum for the transaction of business, but a majority of the shares
present, or represented by proxy, though less than a quorum, may adjourn
the meeting to some other date, and from day to day or from time to time
thereafter until a quorum is present.
ARTICLE SIX
CERTIFICATE OF SHARES
Section 1. Form. Certificates for shares of the Corporation
shall state the name of the registered holder of the shares represented
thereby, and shall be signed by the Chairman or Vice Chairman or the
President or a Vice President, and by the Chief Financial Officer or an
Assistant Treasurer or the Secretary or an Assistant Secretary. Any
such signature may be by facsimile thereof.
Section 2. Surrender. Upon a surrender to the Secretary, or to a
transfer agent or transfer clerk of the Corporation, of a certificate
for shares duly endorsed or accompanied by proper evidence of
succession, assignment or authority to transfer, the Corporation shall
issue a new certificate to the party entitled thereto, cancel the old
certificate and record the transaction upon its books.
Section 3. Right of Transfer. When a transfer of shares on the
books is requested, and there is a reasonable doubt as to the rights of
the persons seeking such transfer, the Corporation, or its transfer
agent or transfer clerk, before entering the transfer of the shares on
its books or issuing any certificate therefor, may require from such
person reasonable proof of his or her rights, and, if there remains a
reasonable doubt in respect thereto, may refuse a transfer unless such
person shall give adequate security or a bond of indemnity executed by a
corporate surety, or by two individual sureties, satisfactory to the
Corporation as to form, amount and responsibility of sureties.
Section 4. Conflicting Claims. The Corporation shall be entitled
to treat the holder of record of any shares as the holder in fact
thereof and shall not be bound to recognize any equitable or other claim
to or interest in such shares on the part of any other person, whether
or not it shall have express or other notice thereof, save as expressly
provided by the laws of the State of California.
Section 5. Loss, Theft and Destruction. In the case of the
alleged loss, theft or destruction of any certificate of shares, another
may be issued in its place as follows: (1) the owner of the lost, stolen
or destroyed certificate shall file with the transfer agent of the
Corporation a duly executed affidavit of loss and indemnity agreement
and certificate of coverage, accompanied by a check representing the
cost of the bond as outlined in any blanket lost securities and
administration bond previously approved by the Directors of the
Corporation and executed by a surety company satisfactory to them, which
bond shall indemnify the Corporation, its transfer agents and
registrars; or (2) the Board may, in its discretion, authorize the
issuance of a new certificate to replace a lost, stolen or destroyed
certificate on such other terms and conditions as it may determine to be
reasonable.
ARTICLE SEVEN
INDEMNIFICATION OF AGENTS OF THE CORPORATION
Section 1. Definitions. For the purposes of this Article Seven,
"agent" means any person who (i) is or was a Director, officer, employee
or other agent of the Corporation, (ii) is or was serving at the request
of the Corporation as a director, officer, employee or agent of another
foreign or domestic corporation, partnership, joint venture, trust or
other enterprise or (iii) was a director, officer, employee or agent of a
foreign or domestic corporation which was a predecessor corporation of
the Corporation or of another enterprise at the request of such
predecessor corporation; "proceeding" means any threatened, pending or
completed action or proceeding, whether civil, criminal, administrative
or investigative; and "expenses" includes, without limitation, attorneys'
fees and any expenses of establishing a right to indemnification under
Sections 4 or 5(c) of this Article Seven.
Section 2. Indemnification for Third Party Actions. The
Corporation shall have the power to indemnify any person who is or was a
party, or is threatened to be made a party, to any proceeding (other than
an action by or in the right of the Corporation to procure a judgment in
its favor) by reason of the fact that such person is or was an agent of
the Corporation against expenses, judgments, fines, settlements and other
amounts actually and reasonably incurred in connection with such
proceeding if such person acted in good faith and in a manner such person
reasonably believed to be in the best interests of the Corporation and,
in the case of a criminal proceeding, had no reasonable cause to believe
the conduct of such person was unlawful. The termination of any
proceeding by judgment, order, settlement, conviction or upon a plea of
nolo contendere or its equivalent shall not, of itself, create a
presumption that the person did not act in good faith and in a manner
which the person reasonably believed to be in the best interests of the
Corporation or that the person had reasonable cause to believe that the
person's conduct was unlawful.
Section 3. Indemnification for Derivative Actions. The
Corporation shall have the power to indemnify any person who is or was a
party, or is threatened to be made a party, to any threatened, pending or
completed action by or in the right of the Corporation to procure a
judgment in its favor by reason of the fact that such person is or was an
agent of the Corporation against expenses actually and reasonably
incurred by such person in connection with the defense or settlement of
such action if such person acted in good faith and in a manner such
person believed to be in the best interests of the Corporation and its
Shareholders. No indemnification shall be made under this Section 3:
(a) In respect of any claim, issue or matter as to which such
person shall have been adjudged to be liable to the
Corporation in the performance of such person's duty to the
Corporation and its Shareholders, unless and only to the
extent that the court in which such proceeding is or was
pending shall determine upon application that, in view of all
the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for expenses and then only
to the extent that the court shall determine; or
(b) Of amounts paid in settling or otherwise disposing of a
pending action without court approval; or
(c) Of expenses incurred in defending a pending action which is
settled or otherwise disposed of without court approval.
Section 4. Successful Defense. Notwithstanding any other
provision of this Article, to the extent that an agent of the Corporation
has been successful on the merits or otherwise (including the dismissal
of an action without prejudice or the settlement of a proceeding or
action without admission of liability) in defense of any proceeding
referred to in Sections 2 or 3 of this Article, or in defense of any
claim, issue or matter therein, he or she shall be indemnified against
expenses (including attorneys' fees) actually and reasonably incurred in
connection therewith.
Section 5. Discretionary Indemnification. Except as provided in
Section 4 of this Article Seven, any indemnification under Section 3
thereof shall be made by the Corporation only if authorized in the
specific case, upon a determination that indemnification of the agent is
proper in the circumstances because the agent has met the applicable
standard of conduct set forth in Section 3, by:
(a) A majority vote of a quorum consisting of Directors who are
not parties to such proceeding;
(b) If such a quorum of Directors is not obtainable, by
independent legal counsel in a written opinion;
(c) Approval by the affirmative vote of a majority of the shares
of this Corporation represented and voting at a duly held
meeting at which a quorum is present (which shares voting
affirmatively also constitute at least a majority of the
required quorum) or by the written consent of holders of a
majority of the outstanding shares which would be entitled to
vote at such meeting and, for such purpose, the shares owned
by the person to be indemnified shall not be considered
outstanding or entitled to vote; or
(d) The court in which such proceeding is or was pending, upon
application made by the Corporation, the agent or the
attorney or other person rendering services in connection
with the defense, whether or not such application by said
agent, attorney or other person is opposed by the
Corporation.
Section 6. Advancement of Expenses. Expenses incurred in
defending any proceeding may be advanced by the Corporation prior to the
final disposition of such proceeding upon receipt of an undertaking by or
on behalf of the agent to repay such amount if it shall be determined
ultimately that the agent is not entitled to be indemnified as authorized
in this Article Seven.
Section 7. Restriction on Indemnification. No indemnification or
advance shall be made under this Article Seven, except as provided in
Sections 4 and 6 thereof, in any circumstance where it appears:
(a) That it would be inconsistent with a provision of the Articles
of Incorporation of the Corporation, its bylaws, a resolution
of the Shareholders or an agreement in effect at the time of
the accrual of the alleged cause of action asserted in the
proceeding in which the expenses were incurred or other
amounts were paid which prohibits or otherwise limits
indemnification; or
(b) That it would be inconsistent with any condition expressly
imposed by a court in approving a settlement.
Section 8. Non-Exclusive. In the absence of any other basis for
indemnification of an agent, the Corporation can indemnify such agent
pursuant to this Article Seven. The indemnification provided by this
Article Seven shall not be deemed exclusive of any other rights to which
those seeking indemnification may be entitled under any statute, bylaw,
agreement, vote of Shareholders or disinterested Directors or otherwise,
both as to action in an official capacity and as to action in another
capacity while holding such office. The rights to indemnification under
this Article Seven shall continue as to a person who has ceased to be a
Director, officer, employee, or agent and shall inure to the benefit of
the heirs, executors, and administrators of the person. Nothing
contained in this Section 8 shall affect any right to indemnification to
which persons other than such Directors and officers may be entitled by
contract or otherwise.
Section 9. Expenses as a Witness. To the extent that any agent of
the Corporation is by reason of such position, or a position with another
entity at the request of the Corporation, a witness in any action, suit
or proceeding, he or she shall be indemnified against all costs and
expenses actually and reasonably incurred by him or her or on his or her
behalf in connection therewith.
Section 10. Insurance. The Board may purchase and maintain
directors and officers liability insurance, at its expense, to protect
itself and any Director, officer or other named or specified agent of the
Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss asserted against
or incurred by the agent in such capacity or arising out of the agent's
status as such, whether or not the Corporation would have the power to
indemnify the agent against such expense, liability or loss under the
provisions of this Article Seven or under California Law.
Section 11. Separability. Each and every paragraph, sentence,
term and provision of this Article Seven is separate and distinct so that
if any paragraph, sentence, term or provision hereof shall be held to be
invalid or unenforceable for any reason, such invalidity or
unenforceability shall not affect the validity or unenforceability of any
other paragraph, sentence, term or provision hereof. To the extent
required, any paragraph, sentence, term or provision of this Article may
be modified by a court of competent jurisdiction to preserve its validity
and to provide the claimant with, subject to the limitations set forth in
this Article and any agreement between the Corporation and claimant, the
broadest possible indemnification permitted under applicable law. If
this Article Seven or any portion thereof shall be invalidated on any
ground by any court of competent jurisdiction, then the Corporation shall
nevertheless have the power to indemnify each Director, officer,
employee, or other agent against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement with respect to any
action, suit, proceeding or investigation, whether civil, criminal or
administrative, and whether internal or external, including a grand jury
proceeding and including an action or suit brought by or in the right of
the Corporation, to the full extent permitted by any applicable portion
of this Article Seven that shall not have been invalidated by any other
applicable law.
Section 12. Agreements. Upon, and in the event of, a
determination of the Board to do so, the Corporation is authorized to
enter into indemnification agreements with some or all of its Directors,
officers, employees and other agents providing for indemnification to the
fullest extent permissible under California law and the Corporation's
Articles of Incorporation.
Section 13. Retroactive Appeal. In the event this Article Seven
is repealed or modified so as to reduce the protection afforded herein,
the indemnification provided by this Article shall remain in full force
and effect with respect to any act or omission occurring prior to such
repeal or modification.
ARTICLE EIGHT
OBLIGATIONS
All obligations of the Corporation, including promissory notes,
checks, drafts, bills of exchange, and contracts of every kind, and
evidences of indebtedness issued in the name of, or payable to, or
executed on behalf of the Corporation, shall be signed or endorsed by
such officer or officers, or agent or agents, of the Corporation and in
such manner as, from time to time, shall be determined by the Board.
ARTICLE NINE
CORPORATE SEAL
The corporate seal shall set forth the name of the Corporation,
state, and date of incorporation.
ARTICLE TEN
AMENDMENTS
These bylaws may be amended or repealed as set forth in the Articles
of Incorporation.
ARTICLE ELEVEN
AVAILABILITY OF BYLAWS
A current copy of these bylaws shall be mailed or otherwise
furnished to any Shareholder of record within five days after receipt of
a request therefor.