BYLAWS OF ENOVA CORPORATION
RESTATED AS OF MAY 28, 1996
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.
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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.
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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
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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.
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(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
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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 the President or a Vice
President, and by 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
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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
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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;
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(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
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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.
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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.
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