SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
(Mark One)
[..X..] Quarterly report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
June 30, 1996
For the quarterly period ended.......................................
Or
[.....] Transition report pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
For the transition period from ________________ to _________________
Name of
Commission Registrant IRS Employer
File as specified State of Identification
Number in its charter Incorporation Number
- ---------- -------------- -------------- --------------
1-11439 ENOVA CORPORATION California 33-0643023
1-3779 SAN DIEGO GAS &
ELECTRIC COMPANY California 95-1184800
101 ASH STREET, SAN DIEGO, CALIFORNIA 92101
- ---------------------------------------- ----------
(Address of principal executive offices) (Zip Code)
Registrants' telephone number, including area code (619) 696-2000
-------------------
No Change
- -----------------------------------------------------------------------
Former name, former address and former fiscal year, if changed since
last report
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Sections 13 or 15(d) of the Securities
Exchange Act of 1934 during the preceding 12 months (or for such shorter
period that the registrant was required to file such reports), and
(2) has been subject to such filing requirements for the past
90 days. Yes...X... No......
Indicate the number of shares outstanding of each of the issuer's
classes of common stock, as of the latest practicable date.
Common Stock outstanding June 30, 1996:
Enova Corporation 116,565,775
-----------
San Diego Gas & Electric Company Wholly owned by Enova Corporation
ENOVA CORPORATION
AND
SAN DIEGO GAS & ELECTRIC COMPANY
CONTENTS
Page No.
--------
PART I. FINANCIAL INFORMATION
Statements of Income. . . . . . . . . . . . . . . . . . . . .3
Balance Sheets. . . . . . . . . . . . . . . . . . . . . . . .5
Statements of Cash Flows. . . . . . . . . . . . . . . . . . .6
Notes to Financial Statements . . . . . . . . . . . . . . . .7
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations . . . . . . . 13
PART II. OTHER INFORMATION
Item 1. Legal Proceedings . . . . . . . . . . . . . . . . . . 20
Item 6. Exhibits and Reports on Form 8-K. . . . . . . . . . . 21
Signature . . . . . . . . . . . . . . . . . . . . . . . . . .22
2
STATEMENTS OF INCOME (unaudited)
In thousands except per share amounts
Enova Corporation
and Subsidiaries SDG&E
------------------- -----------------
For the three months ended June 30 1996 1995 1996 1995
--------- -------- -------- -------
Operating Revenues
Electric $376,971 $354,716 $376,971 $354,716
Gas 81,250 76,745 81,250 76,745
Diversified operations 12,746 13,778 -- --
-------- -------- -------- --------
Total operating revenues 470,967 445,239 458,221 431,461
-------- -------- -------- --------
Operating Expenses
Electric fuel 25,580 20,481 25,580 20,481
Purchased power 76,525 84,937 76,525 84,937
Gas purchased for resale 33,689 28,477 33,388 28,477
Maintenance 16,839 17,425 16,839 17,425
Depreciation and decommissioning 92,741 68,027 87,990 64,908
Property and other taxes 11,377 11,191 11,377 11,191
General and administrative 52,294 44,630 49,190 43,923
Other 50,423 52,547 38,601 41,751
Income taxes 36,974 38,036 48,889 43,979
-------- --------- -------- --------
Total operating expenses 396,442 365,751 388,379 357,072
-------- --------- -------- --------
Operating Income 74,525 79,488 69,842 74,389
-------- --------- -------- --------
Other Income and (Deductions)
Allowance for equity funds used
during construction 1,467 1,453 1,467 1,453
Taxes on nonoperating income 1,540 1,398 740 198
Other - net (2,996) (3,350) (3,091) (1,088)
-------- --------- -------- ---------
Total other income and
(deductions) 11 (499) (884) 563
-------- --------- -------- ---------
Income Before Interest Charges 74,536 78,989 68,958 74,952
-------- --------- -------- ---------
Interest Charges
Long-term debt 21,871 25,355 19,116 21,068
Short-term debt and other 4,897 4,411 4,897 4,804
Allowance for borrowed funds
used during construction (1,227) (671) (1,227) (671)
Preferred dividend requirements of
SDG&E 1,645 1,915 -- --
-------- --------- -------- --------
Net interest charges 27,186 31,010 22,786 25,201
-------- --------- -------- --------
Income From Continuing Operations 47,350 47,979 46,172 49,751
Discontinued Operations, net of
Income Taxes -- (678) -- (535)
-------- --------- -------- ---------
Net Income 47,350 47,301 46,172 49,216
Preferred Dividend Requirements -- -- 1,645 1,915
-------- --------- -------- --------
Earnings Applicable to Common Shares $47,350 $47,301 $44,527 $47,301
======== ========= ======== ========
Average Common Shares Outstanding 116,565 116,534
======== =========
Earnings Per Common Share from
Continuing Operations $0.41 $0.41
======== =========
Earnings Per Common Share $0.41 $0.41
======== =========
Dividends Declared Per Common Share $0.39 $0.39
======== =========
See notes to financial statements.
3
STATEMENTS OF INCOME (unaudited)
In thousands except per share amounts
Enova Corporation
and Subsidiaries SDG&E
-------------------- -------------------
For the six months ended June 30 1996 1995 1996 1995
---------- --------- ---------- --------
Operating Revenues
Electric $744,264 $734,004 $744,264 $734,004
Gas 165,899 161,323 165,899 161,323
Diversified operations 26,701 27,867 -- --
---------- -------- --------- --------
Total operating revenues 936,864 923,194 910,163 895,327
---------- -------- --------- --------
Operating Expenses
Electric fuel 49,404 44,329 49,404 44,329
Purchased power 148,148 171,201 148,148 171,201
Gas purchased for resale 69,187 63,142 68,886 63,142
Maintenance 31,653 36,708 31,653 36,708
Depreciation and decommissioning 163,929 135,845 154,804 129,372
Property and other taxes 23,211 22,679 23,211 22,679
General and administrative 97,932 85,587 94,360 84,377
Other 103,401 104,483 80,433 82,638
Income taxes 82,482 86,077 105,252 99,860
---------- --------- --------- ---------
Total operating expenses 769,347 750,051 756,151 734,306
---------- --------- --------- ---------
Operating Income 167,517 173,143 154,012 161,021
---------- --------- --------- ---------
Other Income and (Deductions)
Allowance for equity funds used
during construction 2,716 3,013 2,716 3,013
Taxes on nonoperating income 1,085 1,177 285 (23)
Other - net (2,622) (2,945) (2,489) (1,335)
--------- -------- --------- ---------
Total other income and
(deductions) 1,179 1,245 512 1,655
--------- --------- --------- ---------
Income Before Interest Charges 168,696 174,388 154,524 162,676
--------- --------- --------- ---------
Interest Charges
Long-term debt 44,433 49,646 38,210 42,122
Short-term debt and other 9,364 8,891 9,364 9,641
Allowance for borrowed funds
used during construction (1,794) (1,383) (1,794) (1,383)
Preferred dividend requirements of
SDG&E 3,291 3,831 -- --
--------- --------- --------- ---------
Net interest charges 55,294 60,985 45,780 50,380
--------- --------- --------- ---------
Income From Continuing Operations 113,402 113,403 108,744 112,296
Discontinued Operations, net of
Income Taxes -- (6,168) -- (1,230)
--------- --------- --------- ---------
Net Income 113,402 107,235 108,744 111,066
Preferred Dividend Requirements -- -- 3,291 3,831
--------- --------- --------- ---------
Earnings Applicable to Common Shares $113,402 $107,235 $105,453 $107,235
========= ========= ========= =========
Average Common Shares Outstanding 116,568 116,533
========= =========
Earnings Per Common Share from
Continuing Operations $0.97 $0.97
========= =========
Earnings Per Common Share $0.97 $0.92
========= =========
Dividends Declared Per Common Share $0.78 $0.78
========= =========
See notes to financial statements.
4
BALANCE SHEETS
In thousands of dollars
Enova Corporation
and Subsidiaries SDG&E
----------------------- -----------------------
Balance at June 30, December 31, June 30, December 31,
1996 1995 1996 1995
(unaudited) (unaudited)
------------ ---------- ----------- -----------
ASSETS
Utility plant - at original cost $5,600,584 $5,533,554 $5,600,584 $5,533,554
Accumulated depreciation
and decommissioning (2,479,654)(2,355,213) (2,479,654)(2,355,213)
--------- --------- --------- ---------
Utility plant - net 3,120,930 3,178,341 3,120,930 3,178,341
--------- --------- --------- ---------
Investments and other property 591,584 532,289 314,176 448,860
--------- --------- --------- ---------
Current assets
Cash and temporary investments 131,406 96,429 58,703 20,755
Accounts receivable 180,921 178,155 180,321 178,091
Due from affiliates -- -- 24,649 --
Notes receivable 35,090 34,498 -- --
Inventories 70,344 67,959 70,036 67,959
Other 44,488 41,012 13,460 29,419
--------- --------- --------- ---------
Total current assets 462,249 418,053 347,169 296,224
--------- --------- --------- ---------
Deferred taxes recoverable in rates 286,828 298,748 286,828 298,748
--------- --------- --------- ---------
Deferred charges and other assets 279,685 321,193 223,647 250,440
--------- --------- --------- ---------
Total $4,741,276 $4,748,624 $4,292,750 $4,472,613
========= ========= ========= =========
CAPITALIZATION AND LIABILITIES
Capitalization
Common equity $1,541,917 $1,520,070 $1,384,352 $1,520,070
Preferred stock of SDG&E
Not subject to mandatory redemption 78,475 93,475 78,475 93,475
Subject to mandatory redemption 25,000 25,000 25,000 25,000
Long-term debt 1,332,692 1,350,094 1,183,328 1,217,026
--------- ---------- --------- ---------
Total capitalization 2,978,084 2,988,639 2,671,155 2,855,571
--------- ---------- --------- ---------
Current liabilities
Long-term debt redeemable
within one year 115,000 115,000 115,000 115,000
Current portion of long-term debt 71,439 36,316 33,881 8,835
Accounts payable 137,360 145,517 137,173 145,273
Dividends payable 47,106 47,383 47,106 47,383
Interest and taxes accrued 23,088 22,537 19,480 23,621
Regulatory balancing accounts
overcollected-net 162,643 170,761 162,643 170,761
Other 138,336 125,438 87,511 90,119
--------- ---------- -------- ---------
Total current liabilities 694,972 662,952 602,794 600,992
--------- ---------- -------- ---------
Customer advances for construction 33,828 34,698 33,828 34,698
Accumulated deferred income taxes-net 556,209 523,335 561,570 536,324
Accumulated deferred investment
tax credits 101,566 104,226 101,566 104,226
Deferred credits and other liabilities 376,617 434,774 321,837 340,802
Contingencies (Note 2) -- -- -- --
--------- --------- --------- ---------
Total $4,741,276 $4,748,624 $4,292,750 $4,472,613
========= ========= ========= =========
See notes to financial statements.
5
STATEMENTS OF CASH FLOWS (unaudited)
In thousands of dollars
Enova Corporation
and Subsidiaries SDG&E
-------------------- --------------------
For the six months ended June 30 1996 1995 1996 1995
-------------------- --------------------
Cash Flows from Operating Activities
Income from continuing operations $113,402 $113,403 $108,744 $112,296
Adjustments to reconcile income from continuing
operations to net cash provided by operating activities
Depreciation and decommissioning 163,929 135,845 154,804 129,372
Amortization of deferred charges and other assets 2,873 6,392 2,873 6,392
Amortization of deferred credits
and other liabilities (17,537) (16,147) (585) (584)
Allowance for equity funds used during construction (2,716) (3,013) (2,716) (3,013)
Deferred income taxes and investment tax credits (23,146) (4,511) (23,573) (4,803)
Other-net 20,508 19,811 (697) (2,899)
Changes in working capital components
Accounts and notes receivable (3,358) 25,652 (2,230) 26,467
Regulatory balancing accounts (8,118) 11,011 (8,118) 11,011
Inventories (2,385) (2,775) (2,077) (2,775)
Other current assets (108) (1,935) 23 (1,852)
Interest and taxes accrued 36,783 36,623 51,152 42,878
Accounts payable and other current liabilities (9,662) (43,228) (10,708) (44,777)
Cash flows provided (used) by discontinued operations -- (168) (11,544) 13,078
--------------------- -------------------
Net cash provided by operating activities 270,465 276,960 255,348 280,791
--------------------- -------------------
Cash Flows from Financing Activities
Dividends paid (90,927) (89,732) (94,488) (93,563)
Short-term borrowings - net -- (89,325) -- (58,325)
Issuance of long-term debt 2,300 124,641 -- 123,734
Repayment of long-term debt (23,588) (100,695) (293) (74,922)
Redemption of common stock (480) (50) -- (50)
Redemption of preferred stock (15,155) -- (15,155) --
--------------------- -------------------
Net cash used by financing activities (127,850) (155,161) (109,936)(103,126)
--------------------- -------------------
Cash Flows from Investing Activities
Utility construction expenditures (85,743) (91,225) (85,743) (91,225)
Contributions to decommissioning funds (11,016) (11,016) (11,016) (11,016)
Other-net (10,879) 2,544 (990) (759)
Discontinued operations -- 5,122 (9,715) (48,670)
--------------------- -------------------
Net cash used by investing activities (107,638) (94,575) (107,464)(151,670)
-------------------- -------------------
Net increase 34,977 27,224 37,948 25,995
Cash and temporary investments, beginning of period 96,429 25,405 20,755 11,605
--------------------- -------------------
Cash and temporary investments, end of period $131,406 $52,629 $58,703 $37,600
===================== ===================
Supplemental disclosure of Cash Flow Information
Income tax payments $ 80,334 $47,240 $80,334 $47,240
===================== ===================
Interest payments, net of amounts capitalized $ 51,452 $59,411 $42,340 $49,649
===================== ===================
Supplemental Schedule of Noncash Investing
and Financing Activities
Real estate investments $ 47,367 $25,303 $ -- $ --
Cash paid -- (250) -- --
--------------------- -------------------
Liabilities assumed $ 47,367 $25,053 $ -- $ --
===================== ===================
Net assets of affiliates transferred to parent $ -- $ -- $150,069 $ --
===================== ===================
See notes to financial statements.
6
ENOVA CORPORATION/SAN DIEGO GAS & ELECTRIC COMPANY
NOTES TO FINANCIAL STATEMENTS (Unaudited)
1. GENERAL
On January 1, 1996 Enova Corporation became the parent of SDG&E and its
subsidiaries. SDG&E's outstanding common stock was converted on a
share-for-share basis into Enova Corporation common stock. SDG&E's debt
securities, preferred stock and preference stock were unaffected and
remain with SDG&E. On January 31, 1996 SDG&E's ownership interests in
its subsidiaries were transferred to Enova Corporation at book value,
completing the parent company structure. Additional information
concerning the effects of the parent company structure is provided in
Note 3 herein.
This Quarterly Report on Form 10-Q is a combined filing of Enova
Corporation and SDG&E. The financial statements presented herein
represent the consolidated statements of Enova Corporation and its
subsidiaries (including SDG&E), as well as the stand-alone statements of
SDG&E. Unless otherwise indicated, the "Notes to Financial Statements"
and "Management's Discussion and Analysis of Financial Condition and
Results of Operations" herein pertain to Enova Corporation as a
consolidated entity.
The Registrants believe all adjustments necessary to present a fair
statement of the financial position and results of operations for the
periods covered by this report, consisting of recurring accruals, have
been made. Certain prior-year amounts have been reclassified for
comparability.
The Registrants' significant accounting policies are described in the
notes to consolidated financial statements in the 1995 Annual Report to
Shareholders. The same accounting policies are followed for interim
reporting purposes.
This quarterly report should be read in conjunction with the
Registrants' 1995 Annual Report on Form 10-K and its Quarterly Report on
Form 10-Q for the three months ended March 31, 1996. The consolidated
financial statements and Management's Discussion & Analysis of Financial
Condition and Results of Operations included in the 1995 Annual Report
to Shareholders were incorporated by reference into the 1995 Annual
Report on Form 10-K and filed as an exhibit thereto.
2. MATERIAL CONTINGENCIES
ELECTRIC INDUSTRY RESTRUCTURING -- CALIFORNIA
In December 1995, the CPUC issued its policy decision on the
restructuring of California's electric utility industry to stimulate
competition and reduce rates. The decision provides that, beginning in
January 1998, customers will be able to buy their electricity through a
power exchange that will obtain power from the lowest-bidding suppliers.
The exchange is a spot market with published pricing. An independent
system operator (ISO) will schedule power transactions and access to the
transmission system. Consumers also may choose to continue to purchase
from their local utility under regulated tariffs. As a third option, a
cross section of all customer groups (residential, industrial,
commercial and agricultural) will be able to go directly to any energy
supplier and enter into private contracts with generators, brokers or
others (direct access). As the direct-access mechanism has many
technical issues to be resolved, a five-year phase-in is planned. All
7
California electricity consumers will have the option to purchase
generation services directly by 2003. The utilities will continue to
provide transmission and distribution services to customers who choose
to purchase their energy from other providers.
Within certain limits, utilities will be allowed to recover their
"stranded" costs incurred for CPUC-approved facilities through the
establishment of a non-bypassable competition transition charge (CTC)
over a transition period that ends in 2005. In addition to $287 million
of deferred taxes recoverable in rates, SDG&E has approximately $203
million of other regulatory assets at June 30, 1996 (included in
"Deferred Charges and Other Assets" on the Balance Sheets), offset by
$130 million of regulatory liabilities (included in "Accumulated
Deferred Investment Tax Credits" and "Deferred Credits and Other
Liabilities" on the Balance Sheets). Of these amounts (deferred taxes
and regulatory assets and liabilities), approximately $73 million is
related to generation operations, of which $58 million is related to
nuclear operations. Recovery periods currently range from one to 30
years.
It is estimated that at June 30, 1996, SDG&E had approximately $909
million of net generating plant (including approximately $709 million of
nuclear facilities) currently being recovered in rates over various
periods of time. Under the CPUC's industry restructuring decision, to
the extent these investments exceed their market values, they must be
recovered by 2005 through the CTC mechanism. In April 1996 the CPUC
approved the accelerated recovery of existing capital costs in San
Onofre Nuclear Generating Station (SONGS) Units 2 and 3 over an eight-
year period. In August 1996 the utilities' filings to the CPUC will
address sunk costs of non-nuclear generation and CTC rates for the
calendar year commencing January 1, 1998.
In addition, SDG&E has entered into significant long-term purchased-
power commitments with various utilities and other providers totaling
$3.3 billion. Also, under the CPUC's Biennial Resource Plan Update
decision, SDG&E may be required to contract for an additional 500
megawatts of power over 17-year terms. The present value of ratepayer
payments beginning in 1997 over the life of these contracts is estimated
to be $2.3 billion. Prices under these contracts could significantly
exceed the future market price. Both purchased-power and BRPU
commitments are indexed to natural-gas prices and are subject to
significant fluctuation. SDG&E has challenged the CPUC's BRPU decision
and the FERC has declared the BRPU auction procedures unlawful under
federal law. The CPUC has issued a ruling encouraging SDG&E and other
utilities to reach settlements with the auction winners. SDG&E has
reached settlement with two auction winners. Settlement discussions with
three others are ongoing. Under the CPUC's industry restructuring
decision, purchased-power obligations (including existing qualifying
facilities contracts and the costs of settling BRPU planned projects)
would be recovered over the duration of the contracts through the CTC
mechanism.
For purposes of CTC, rates for customers choosing traditional utility
service (instead of power exchange or direct access) will be capped at
January 1, 1996 levels. Including the CTC, rates cannot exceed the cap
and therefore, recovery of the CTC is limited by the cap. Customers
choosing to purchase power directly or from the exchange will also be
obligated to pay CTC.
8
In April 1996 the CPUC issued an order in response to Pacific Gas and
Electric's motion for interim CTC recovery and its concerns over lost
revenues from large customers' choosing other suppliers before plans for
deregulation are finalized. The CPUC found that PG&E's request to
require customers to pay all of the CTC before leaving the system was
too severe a remedy in a competitive market, but that these customers
have the responsibility to pay their fair share of transition costs. The
CPUC deferred the setting of the interim CTC to a joint committee
process open to all parties. On April 12, 1996 SDG&E filed a motion
requesting that it also be afforded interim CTC treatment and that this
effort be consolidated with PG&E's and addressed by the joint committee.
The CPUC is currently reviewing the issue.
Performance-based regulation will replace cost-of-service regulation for
generation and distribution services. On an experimental basis SDG&E is
participating in a Performance-Based Ratemaking process for gas
procurement, electric generation and dispatch, and base rates. It began
in 1993 and runs through 1997. In July 1996 SDG&E filed a new generation
PBR proposal with the CPUC. Additional information concerning the
generation PBR proposal is provided in "Management's Discussion and
Analysis of Financial Condition and Results of Operations" beginning on
page 14 herein.
California's three major investor-owned utilities have filed plans with
the CPUC to implement direct access and new or revised PBR proposals.
Plans to establish the power exchange and ISO have also been filed by
the utilities with the CPUC.
The CPUC is currently working on building a consensus on the new market
structure with the California Legislature, the governor, utilities and
customers. The California Legislature has passed a resolution forming an
oversight committee to ensure the legislature's involvement in the
policies presented by the CPUC, and that the policies comply with
federal and state laws, and achieve the objectives both of competition
and of the various social programs that are currently funded through
utility rates. There have been several bills introduced in the
California Legislature related to various aspects of electric industry
restructuring, including CTC. A two-house conference committee met for
the first time in July 1996 to fashion legislation in response to the
CPUC's industry restructuring decision. The conference process will
continue through late August 1996.
As restructuring evolves, SDG&E will become more vulnerable to
competition. However, based on recent CPUC decisions, recovery of
stranded costs is provided for, subject to the January 1, 1996 rate cap
(see discussion on previous page). Due to the recent decisions, SDG&E
does not anticipate incurring a material charge against earnings for its
generating facilities, the related regulatory assets and other long-term
commitments. In addition, although California utilities' rates are
significantly higher than the national average, SDG&E has a lower
concentration of industrial customers and is in its eighth year of being
the lowest-cost provider among the investor-owned utilities in
California.
SDG&E accounts for the economic effects of regulation in accordance with
Statement of Financial Accounting Standards No. 71, "Accounting for the
Effects of Certain Types of Regulation," under which a regulated entity
may record a regulatory asset if it is probable that, through the rate-
making process, the utility will recover that asset from customers.
9
Regulatory liabilities represent future reductions in revenues for
amounts due to customers. Once the restructuring transition is final,
SDG&E may not continue to meet the criteria for applying SFAS 71 to all
of its operations in the new regulatory framework. In a non-SFAS 71
environment, among other things, additions to plant would need to be
recovered through market prices.
ELECTRIC INDUSTRY RESTRUCTURING -- FEDERAL
In April 1996 the FERC issued a final rule that will require all
utilities to offer wholesale "open-access" transmission service on a
nondiscriminatory basis and to share information about available
transmission capacity. In addition, utilities will be required to
functionally price their generation and transmission services separately
from each other. The FERC also stated its belief that utilities should
be allowed to recover the costs of assets and obligations made
uneconomic by the changed regulatory environment. In July 1996 SDG&E
filed open-access transmission tariffs that comply with the FERC's April
1996 rule described above. These tariffs immediately became effective.
In April 1996 California's three major investor-owned utilities filed
plans to establish the power exchange and ISO with the FERC, which has
jurisdiction over the exchange, the ISO and interstate transmission.
Federal legislation on electric industry restructuring was introduced in
July 1996. This legislation would make states establish rules to let all
residences, businesses and industries choose their own power suppliers
by December 15, 2000, or force states to give way to the FERC to open
the local market to competition after 2000.
NUCLEAR INSURANCE
SDG&E and the co-owners of SONGS have purchased primary insurance of
$200 million, the maximum amount available, for public liability claims.
An additional $8.7 billion of coverage is provided by secondary
financial protection required by the Nuclear Regulatory Commission and
provides for loss sharing among the utilities owning nuclear reactors if
a costly accident occurs. SDG&E could be assessed retrospective premium
adjustments of up to $32 million in the event of a nuclear incident
involving any of the licensed, commercial reactors in the United States,
if the amount of the loss exceeds $200 million. In the event the public
liability limit stated above is insufficient, federal law provides for
Congress to enact further revenue-raising measures to pay claims. These
measures could include an additional assessment on all licensed reactor
operators.
Insurance coverage is provided for up to $2.8 billion of property damage
and decontamination liability. Coverage is also provided for the cost of
replacement power, which includes payments for up to 2 years, after a
waiting period of 21 weeks. Coverage is provided primarily through
mutual insurance companies owned by utilities with nuclear facilities.
If losses at any of the nuclear facilities covered by the risk-sharing
arrangements were to exceed the accumulated funds available from these
insurance programs, SDG&E could be assessed retrospective premium
adjustments of up to $9 million.
10
CANADIAN GAS
As discussed in the 1995 Annual Report on Form 10-K, SDG&E has long-term
pipeline capacity commitments related to its contracts for Canadian
natural gas supplies. These contracts are currently in litigation, as
described in Part II, Item 1, "Legal Proceedings," herein. If the supply
of Canadian natural gas to SDG&E is not resumed, SDG&E intends to use
the capacity in other ways.
3. DISCONTINUED OPERATIONS
ENOVA CORPORATION:
On June 6, 1995 Enova Corporation sold its investment in Wahlco
Environmental Systems, Inc. for $5 million. The sale of Wahlco has been
accounted for as a disposal of a segment of business. Enova
Corporation's financial statements for prior periods have been restated
to reflect Wahlco as a discontinued operation in accordance with
Accounting Principles Board Opinion No. 30 "Reporting the Effects of a
Disposal of a Segment of Business." Enova Corporation's discontinued
operations are summarized in the table below:
Six Months Ended Year Ended
June 30, December 31,
1995 1995 1994 1993
- ------------------------------------------------------------------------
In millions of dollars
Revenues $24 $24 $70 $82
Loss from operations before
income taxes - - (70) (14)
Loss on disposal of Wahlco before
income taxes (10) (12) - -
Income tax benefits 4 12 7 5
- ------------------------------------------------------------------------
The loss on disposal of Wahlco was recorded in 1995 and reflects the
sale of Wahlco and Wahlco's net operating losses after 1994. The loss
from discontinued operations for 1994 was primarily due to the $59
million writedown of Wahlco's goodwill and other intangible assets as a
result of the depressed air pollution-control market and increasing
competition. The 1995 income tax benefit includes the effects of the
1994 writedown to the extent recognizable as of December 31, 1995.
SDG&E:
SDG&E's financial statements for periods prior to 1996 have been
restated to reflect the results of its transferred subsidiaries
(described in Note 1 herein) and the sale of Wahlco as discontinued
operations. SDG&E's discontinued operations are summarized in the table
below.
Six Months Ended Year Ended
June 30, December 31
1995 1995 1994 1993
- ------------------------------------------------------------------------
In millions of dollars
Revenues $51 $81 $126 $119
Loss from operations before
income taxes (10) (24) (105) (19)
Loss on disposal of Wahlco
before income taxes (10) (12) - -
Income tax benefits 19 50 43 22
- ------------------------------------------------------------------------
11
The net assets of the subsidiaries (included in "Investments and Other
Property" on SDG&E's Balance Sheets) at December 31, 1995 are summarized
as follows:
- ---------------------------------------------------------------
In millions of dollars
Current assets $ 122
Non-current assets 286
Current liabilities ( 62)
Long-term debt and other liabilities (214)
- ---------------------------------------------------------------
Net assets $ 132
- ---------------------------------------------------------------
12
ITEM 2.
ENOVA CORPORATION/SAN DIEGO GAS & ELECTRIC COMPANY
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
OVERVIEW:
In January 1996 Enova Corporation became the parent of SDG&E, and
SDG&E's ownership interests in its subsidiaries were transferred to the
parent company. Effective January 1, 1996 SDG&E's financial statements
for periods prior to 1996 have been restated to reflect the net results
of subsidiaries as discontinued operations in accordance with Accounting
Principles Board Opinion No. 30 "Reporting the Effects of a Disposal of
a Segment of Business." For additional information see Notes 1 and 3 of
the notes to financial statements herein, and the 1995 Annual Report on
Form 10-K.
INFORMATION REGARDING FORWARD-LOOKING COMMENTS
This Quarterly Report on Form 10-Q includes forward-looking comments
within the definition of Section 27A of the Securities Act of 1933 and
Section 21E of the Securities Exchange Act of 1934. When used in the
following "Management's Discussion and Analysis of Financial Condition
and Results of Operations," the words "estimates", "expects",
"anticipates", "plans" and similar expressions are intended to identify
forward-looking comments that involve risks and uncertainties.
Although the Registrants believe that their expectations are based on
reasonable assumptions, they can give no assurance that those
expectations will be realized. Important factors that could cause actual
results to differ materially from those in the forward-looking comments
herein include political developments affecting state and federal
regulatory agencies, the pace of electric industry deregulation in
California and in the United States, and the timing and extent of
changes in interest rates and prices for natural gas and electricity.
RESULTS OF OPERATIONS:
The following discussions reflect the results for the six months ended
June 30, 1996 compared to the corresponding period in 1995:
OPERATING REVENUES
Electric revenues increased for the six months ended June 30, 1996 from
the corresponding period in 1995 primarily due to increased sales volume
due to weather. Gas revenues and revenues from Enova Corporation's
diversified operations did not change significantly over that same
period.
OPERATING EXPENSES
Purchased-power expense decreased due to the availability of lower-cost
nuclear generation in 1996. Electric fuel expense increased primarily
due to increased nuclear and natural-gas-fired generation in 1996.
REGULATORY MATTERS:
CALIFORNIA PUBLIC UTILITIES COMMISSION'S INDUSTRY RESTRUCTURING
In December 1995 the CPUC issued its policy decision on the
restructuring of California's electric utility industry to stimulate
13
competition and reduce rates. See additional discussion of industry
restructuring in Note 2 of the notes to financial statements.
ELECTRIC RATES
In June 1996 the CPUC issued its decision on SDG&E's 1996 Energy Cost
Adjustment Clause application, approving a one-time $35 million refund
and a $22 million annual rate decrease. These result from lower fuel and
purchased-power costs, balancing account overcollections and the new
incremental cost incentive pricing covering SONGS 2 & 3. The rate change
lowers the typical residential customer's monthly electric bill by 2.1
percent, placing SDG&E's system average rate at 9.64 cents/kwh effective
June 1, 1996. SDG&E's authorized system average rate prior to the rate
change was 9.87 cents/kwh.
GAS RATES
In April 1996 SDG&E filed its application under the Biennial Cost
Allocation Proceeding, proposing a $42 million decrease in natural-gas
rates. If approved as filed, the monthly bill of a typical residential
natural-gas customer would decrease about 63 cents effective January
1997. The decrease results from lower transportation costs. The CPUC
Division of Ratepayer Advocates is recommending a decrease of $26
million primarily due to the DRA's recommended higher level of Southern
California Gas Company costs to be allocated to SDG&E. SDG&E's and SoCal
Gas' BCAP filings are being reviewed by the CPUC in tandem because a
significant portion of costs incurred by SDG&E are those allocated from
SoCal Gas, which provides transportation and storage services to SDG&E.
Hearings are scheduled for August 1996 and a final decision is expected
by December 1996.
In June 1996 the CPUC approved SDG&E's application to change its core
gas procurement rate on a monthly basis instead of annually in order to
better reflect market price changes in SDG&E's customer rates.
PERFORMANCE-BASED RATEMAKING
In May 1996 SDG&E filed an application with the CPUC for a $5.5 million
Base Rates PBR reward for 1995. All performance targets, consisting of
customer rates, employee safety, electric system reliability and
customer satisfaction, were met or exceeded. A decision is expected in
the third quarter of 1996.
A new generation PBR proposal was filed with the CPUC in July 1996. The
proposed mechanism contains two basic elements. It establishes a revenue
requirement to recover fixed operating costs necessary to maintain the
availability of the units needed for reliability in the San Diego area.
In addition, it establishes the bid price into the power exchange based
on the units' variable cost of production. By limiting SDG&E's
compensation to its fixed and variable costs, SDG&E's ability to
exercise market power by raising prices will be eliminated. The proposed
term of this mechanism is three years, beginning with the commencement
of the power exchange in 1998. The mechanism will replace the electric
generation and dispatch mechanism, including the purchased-power
portion, due to the fact that SDG&E will be purchasing all its energy
14
from the power exchange. In addition, the generation PBR will reduce the
revenue requirements of the base rates mechanism.
A distribution PBR proposal is planned to be filed once the FERC
provides criteria on differentiating transmission and distribution. This
is expected in late 1996.
COST OF CAPITAL
In June 1996 the CPUC approved the Market Indexed Capital Adjustment
Mechanism. The mechanism replaces the traditional cost of capital
proceeding with an automatic market-based adjustment based on several
variables, including the costs of long-term debt, equity and preferred
stock. The decision goes into effect January 1, 1998. It requires SDG&E
to participate in the 1997 cost of capital proceeding, which will
provide the basis for the MICAM, after which SDG&E will discontinue
participation in the annual proceeding. The decision also recommends
that MICAM be modified to reflect any changes resulting from industry
restructuring. SDG&E is required to file a report on the performance of
the mechanism in March 2000.
In May 1996 SDG&E filed its 1997 cost of capital application with the
CPUC, requesting an overall rate of return of 9.52 percent. SDG&E's 1996
authorized rate of return is 9.37 percent. The application reflects an
increase in the return on common equity from 11.60 percent to 11.85
percent due to higher interest rates and continuing uncertainty with
respect to industry restructuring. If approved, the increase in the rate
of return would result in a $6.5 million increase in revenues. Hearings
are scheduled for August 1996 and a decision is expected by late 1996.
DEMAND-SIDE MANAGEMENT
In May 1996 SDG&E filed its application for 1995 shareholder rewards
totaling $39 million from its DSM programs. This $30 million increase
over 1994 results is due to completion of several large government
projects. The rewards will be collected and recorded in earnings over a
ten-year period and are subject to CPUC approval. The DRA proposes to
reduce SDG&E's 1994 and 1995 DSM rewards based on the DRA's claim that
1994 reductions in energy volume were less than anticipated and that the
forecasted cost of energy used to calculate the 1995 DSM rewards is too
high. If the CPUC agrees, this would reduce SDG&E's 1994 DSM reward from
$9 million to $6 million and its 1995 DSM reward from $39 million to $13
million. Hearings are scheduled for August 1996 and a decision is
expected by late 1996.
ENVIRONMENTAL MATTERS
WOOD-POLE PRESERVATIVES
Mateel Environmental Justice Foundation voluntarily dismissed, without
prejudice, its complaint against Pacific Bell, PG&E and two wood-pole
manufacturers. The complaint alleged that utility-pole owners and
manufacturers failed to warn the public that the poles are treated with
hazardous chemicals. SDG&E was not directly involved in the litigation,
but is a member of the joint defense team comprised of the pole
manufacturers and all California utilities owning utility poles. The
15
complaint could be refiled by Mateel, depending on the outcome of
laboratory tests.
AIR QUALITY
The estimated capital costs to comply with the San Diego Air Pollution
Control District's Rule 69 has been revised to $62 million from $110
million. See additional discussion of Rule 69 in the 1995 Annual Report
on Form 10-K.
LIQUIDITY AND CAPITAL RESOURCES:
Utility operations continue to be a major source of liquidity. In
addition, financing needs are met primarily through the issuance of
short-term and long-term debt, and common and preferred stock. These
capital resources are expected to remain available. SDG&E's cash
requirements include plant construction and other capital expenditures.
Nonutility cash requirements include capital expenditures related to new
products; affordable-housing, leasing and other investments; and
repayments and retirements of long-term debt. In addition to changes
described elsewhere, major changes in cash flows are described below.
OPERATING ACTIVITIES
Depreciation and decommissioning expense increased during the six months
ended June 30, 1996 compared to the corresponding 1995 period due to the
accelerated recovery of SONGS Units 2 and 3 approved by the CPUC in
April 1996. See additional discussion in Note 2 on page 8.
FINANCING ACTIVITIES
Enova Corporation anticipates that it will require only minimal amounts
of short-term debt in 1996. Enova Corporation and its subsidiaries do
not expect to issue stock or long-term debt in 1996, other than for
SDG&E refinancings. Enova Financial repaid $20 million of long-term debt
in the ordinary course of business.
In May 1996 the CPUC approved SDG&E's request to issue up to $300
million of long-term debt to refinance previously issued long-term debt.
The decision also grants a two-year extension of a prior CPUC
authorization to issue $138 million of additional long-term debt and
$100 million of additional preferred stock.
In July 1996 SDG&E issued $130 million of Pollution Control Bonds at an
interest rate of 5.9 percent, due June 1, 2014. The funds obtained from
this issue will be used to refinance the following Pollution Control
Bonds: Series CC, DD and FF (all variable rate), Series 1979A (7.2
percent) and Series 1977A (6.375 percent). These refinancings are
planned to occur in August and September 1996. In addition, a $44
million variable-rate issue is planned for August 1996 in order to
refinance Series GG (7.625 percent).
At June 30, 1996 SDG&E had short-term bank lines of $30 million and
long-term bank lines of $280 million. Commitment fees are paid on the
unused portion of the lines. There are no requirements for compensating
balances.
16
Quarterly cash dividends of $0.39 per share were declared for each of
the first and second quarters of 1996 and for each quarter during the
year ended December 31, 1995. The dividend payout ratio for the twelve
months ended June 30, 1996 and years ended December 31, 1995, 1994,
1993, 1992 and 1991 were 78 percent, 80 percent, 130 percent, 82
percent, 81 percent and 79 percent, respectively. The high payout ratio
for the year ended December 31, 1994 was due to the writedowns recorded
during 1994. For additional information regarding the writedowns, see
the 1995 Annual Report on Form 10-K. The payment of future dividends is
at the discretion of Enova's directors and is dependent upon future
business conditions, earnings and other factors. Net cash flows provided
by operating activities currently are sufficient to maintain the payment
of dividends at the present level.
SDG&E maintains its capital structure so as to obtain long-term
financing at the lowest possible rates. The following table shows the
percentages of capital represented by the various components. The
capital structures are net of the construction funds held by a trustee
in 1992 and 1993.
June 30,
1991 1992 1993 1994 1995 1996
-----------------------------------------------------------
Common equity 47% 47% 47% 48% 49% 49%
Preferred stock 5 5 4 4 4 4
Debt and leases 48 48 49 48 47 47
-----------------------------------------------------------
Total 100% 100% 100% 100% 100% 100%
-----------------------------------------------------------
The following table lists key financial ratios for SDG&E.
Twelve Year
months ended ended
June 30, December 31,
1996 1995
----------------- -------------
Pretax interest coverage 4.6 X 4.5 X
Internal cash generation 113 % 115 %
Construction expenditures as
a percent of capitalization 7.6 % 7.7 %
DERIVATIVES: Registrants' policy is to use derivative financial
instruments to reduce exposure to fluctuations in interest rates and
foreign currency exchange rates. These financial instruments are with
major investment firms and, along with cash and cash equivalents and
accounts receivable, expose Registrants to market and credit risks.
These risks may at times be concentrated with certain counterparties,
although counterparty non-performance is not anticipated. Registrants do
not use derivatives for trading or speculative purposes.
At June 30, 1996 SDG&E had two interest-rate swap and cap agreements: an
index cap agreement maturing in 1996 on $75 million of bonds, and a
floating-to-fixed-rate swap maturing in 2002 associated with $45 million
of variable-rate bonds. SDG&E's pension fund periodically uses foreign
currency forward contracts to reduce its exposure from exchange-rate
fluctuations associated with certain investments in foreign equity
securities. At June 30, 1996 there were no forward contracts
17
outstanding. Registrants contemplate use of similar instruments to
reduce exposure to fluctuations in natural gas prices.
INVESTING ACTIVITIES
For the six months ended June 30, 1996 cash used in SDG&E's investing
activities included utility construction expenditures and payments to
its nuclear decommissioning trust. Utility construction expenditures,
excluding nuclear fuel and the allowance for equity funds used during
construction, were $221 million in 1995 and are estimated to be $220
million in 1996. SDG&E continuously reviews its construction, investment
and financing programs and revises them in response to changes in
competition, customer growth, inflation, customer rates, the cost of
capital, and environmental and regulatory requirements. Among other
things, the level of SDG&E's expenditures in the next few years will
depend heavily on the impact of the CPUC's industry restructuring
decision and on the timing of expenditures to comply with air emission
reduction and other environmental requirements. Payments to the nuclear
decommissioning trust are expected to continue until SONGS is
decommissioned, which is not expected to occur before 2013. Although
Unit 1 was permanently shut down in 1992, it is expected to be
decommissioned concurrently with Units 2 and 3.
Enova Corporation's level of non-utility expenditures in the next few
years will depend primarily on the activities of its non-utility
subsidiaries, some of which are discussed below.
Enova International has formed two partnerships to participate in the
development of the natural-gas market in Mexico. These partnerships have
announced their active pursuit of two Northern Baja California projects:
1) construction and operation of a natural gas distribution network in
the capital city of Mexicali; and 2) construction of a natural-gas-fired
electric generating plant at Rosarito Beach, as well as a gas pipeline
to transport fuel from the US-Mexican border at San Diego to Rosarito
(approx. 20 miles). The proposal for the Mexicali gas distribution
system was presented in June 1996. Four proposals, including Enova
International's, were submitted and the award of the contract is
scheduled for August 1996.
Enova Corporation has informed the CPUC of its intent to invest in a
foreign utility and the CPUC has certified to the Securities and
Exchange Commission the CPUC's ability to protect SDG&E's ratepayers
from foreign-investment risk. The Commission Advisory and Compliance
Division is required to monitor Enova Corporation investments in foreign
affiliates and to report back to the CPUC if the investments exceed ten
percent of Enova Corporation's equity.
As discussed in the 1995 Annual Report to Shareholders, Enova
Corporation, through its Enova Technologies subsidiary, had formed an
alliance with Philips Home Services to establish an electronic consumer
network based on the Philips screen phone. That relationship has since
been terminated. Enova Technologies remains committed to the electronic
consumer network concept and is continuing to explore various
technologies for bringing interactive electronic commerce into
consumers' homes.
18
OTHER SIGNIFICANT BALANCE SHEET CHANGES
Besides the effects of items discussed in the preceding pages, there
were significant changes to Enova Corporation's and SDG&E's balance
sheets at June 30, 1996, compared to December 31, 1995. The increase in
investments and other property for Enova Corporation was due to Enova
Financial's affordable-housing investments. The decrease in investments
and other property for SDG&E was due to SDG&E's transfer of its
subsidiaries to Enova Corporation in January 1996. The increases in
other current assets and accumulated deferred income taxes were due to
differences in the timing of income tax payments. The decreases in
deferred charges and other assets and in deferred credits and other
liabilities were due primarily to a decrease in the projected pension
benefit obligation as a result of a lower assumed actuarial discount
rate.
19
PART II - OTHER INFORMATION
ITEM 1. LEGAL PROCEEDINGS
There have been no significant subsequent developments in the SONGS
Personal Injury, and Electric and Magnetic Fields (Covalt and North City
West) proceedings. Background information concerning these and the
following proceedings is contained in Enova Corporation's 1995 Annual
Report on Form 10-K and in its March 31, 1996 Quarterly Report on Form
10-Q.
Canadian Natural Gas
In May 1996 the U.S. District Court granted Canadian Hunter's and
Summit's motion to dismiss the case, finding that the Alberta Sales of
Goods Act rendered the gas purchase agreements between SDG&E and the
defendants voidable by either party. SDG&E expects this order will be
certified to the Ninth Circuit Court of Appeals by the District Court
Judge during the third quarter of 1996. On June 1, 1996 Canadian Hunter
ceased deliveries of gas under its agreement with SDG&E. Summit had
previously stopped deliveries.
SDG&E is unable to predict the ultimate outcome of these proceedings.
Public Service Company of New Mexico
There were no significant subsequent developments in the Public Service
Company of New Mexico complaint filed in 1993.
On March 18, 1996 SDG&E filed a second complaint with the FERC against
PNM, alleging in part that applying the same methodology as SDG&E had
used in the 1993 complaint, but based on more recent cost information,
results in charges under the 1985 power purchase agreement that are
unjust, unreasonable and discriminatory. SDG&E requested that the FERC
investigate the rates charged under the 1985 agreement and establish May
17, 1996 as the effective refund date. The relief, if granted, would
reduce annual demand charges paid by SDG&E to PNM by up to $12 million
per year. On April 26, 1996 PNM answered the second complaint and moved
that it be dismissed for the same reasons stated in its answer to the
1993 complaint.
SDG&E is unable to predict the ultimate outcome of this litigation.
20
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
Exhibit 3 - Bylaws and Articles of Incorporation
3.1 Restated Bylaws of Enova Corporation.
3.2 Restated Bylaws of San Diego Gas & Electric Company.
Exhibit 12 - Computation of ratios
12.1 Computation of Ratio of Earnings to Combined Fixed Charges
and Preferred Stock Dividends as required under SDG&E's
August 1993 registration of 5,000,000 shares of Preference
Stock (Cumulative).
Exhibit 27 - Financial Data Schedules
27.1 Financial Data Schedule for the quarter ended June 30,
1996 for Enova Corporation.
27.2 Financial Data Schedule for the quarter ended June 30,
1996 for SDG&E.
(b) Reports on Form 8-K
None
21
SIGNATURE
Pursuant to the requirement of the Securities Exchange Act of 1934, the
registrant has duly caused this quarterly report to be signed on its
behalf by the undersigned thereunto duly authorized.
ENOVA CORPORATION
SAN DIEGO GAS & ELECTRIC COMPANY
(Registrants)
Date: July 25, 1996 By: /s/ F. H. Ault
------------------------------
(Signature)
F. H. AULT
Vice President and Controller
22
EXHIBIT 12.1
SAN DIEGO GAS & ELECTRIC COMPANY
COMPUTATION OF RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
6 Months
Ended
1991 1992 1993 1994 1995 6/30/96
--------- ---------- ---------- ---------- ---------- ----------
Fixed Charges:
Interest:
Long-Term Debt $ 95,124 $ 97,067 $ 84,830 $ 81,749 $ 82,591 $ 38,210
Short-Term Debt 7,010 5,043 6,676 8,894 17,886 6,958
Amortization of Debt
Discount and Expense,
Less Premium 2,471 2,881 4,162 4,604 4,870 2,406
Interest Portion of
Annual Rentals 18,067 14,558 9,881 9,496 9,631 4,361
---------- ---------- ----------- --------- ----------- ----------
Total Fixed
Charges 122,672 119,549 105,549 104,743 114,978 51,935
---------- ---------- ----------- --------- ----------- ----------
Preferred Dividends
Requirements 10,535 9,600 8,565 7,663 7,663 3,291
Ratio of Income Before
Tax to Net Income 1.64160 1.71389 1.79353 1.83501 1.78991 1.96527
---------- ----------- ----------- ---------- ---------- ----------
Preferred Dividends
for Purpose of Ratio 17,294 16,453 15,362 14,062 13,716 6,468
---------- ----------- ----------- ---------- ---------- ----------
Total Fixed Charges
and Preferred
Dividends for
Purpose of Ratio $139,966 $136,002 $120,911 $118,805 $128,694 $ 58,403
========== =========== ========== ========== ========== ==========
Earnings:
Net Income (before
preferred dividend
requirements) $202,544 $224,177 $215,872 $206,296 $219,049 $108,744
Add:
Fixed Charges
(from above) 122,672 119,549 105,549 104,743 114,978 51,935
Less: Fixed Charges
Capitalized 2,322 1,262 1,483 1,424 2,040 670
Taxes on Income 129,953 160,038 171,300 172,259 173,029 104,967
---------- ---------- ---------- ---------- ----------- ---------
Total Earnings for
Purpose of Ratio $452,847 $502,502 $491,238 $481,874 $505,016 $264,976
========== ========== ========== ========== =========== ==========
Ratio of Earnings
to Combined Fixed
Charges and Preferred
Dividends 3.24 3.69 4.06 4.06 3.92 4.54
========== ========== ========== ========== =========== =========
UT
1,000
YEAR
DEC-31-1996
JUN-30-1996
PER-BOOK
3,120,930
591,584
462,249
131,176
435,337
4,741,276
291,414
565,455
685,048
1,541,917
25,000
78,475
1,095,051
0
149,364
0
177,895
0
88,277
8,544
1,576,753
4,741,276
936,864
82,482
686,865
769,347
167,517
1,179
168,696
55,294
113,402
0
113,402
90,920
44,433
270,465
0.97
0.97
PREFERRED DIVIDEND OF SUBSIDIARY INCLUDED IN INTEREST EXPENSE
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.
1
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.
2
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
3
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
6
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
7
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;
8
(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
9
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.
11
BYLAWS OF SAN DIEGO GAS & ELECTRIC COMPANY
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 ("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, or any officer
designated by the Chairman, shall preside over meetings of the
Shareholders and of the Board. The Chairman shall 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.
1
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 from a minimum of seven to a maximum of thirteen, unless
changed by the vote or written consent of holders of a majority of
outstanding shares entitled to vote. The Board of Directors shall fix
by resolution the number of Directors comprising the Board within the
stated minimum and maximum number at its discretion and without
Shareholder approval.
Section 2. Election. A Board shall be elected at each
annual meeting of the Shareholders, at any adjournment thereof, or at
any special meeting of the Shareholders called for that purpose. The
Directors shall hold office for one year or until their successors are
duly elected. 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.
2
Section 3. Vacancies. Vacancies in the Board may be filled
by a majority of the remaining Directors, though less than a quorum, and
each Director so elected shall hold office for the unexpired term and
until his or her successor is elected.
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.
3
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.
4
(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
5
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.
Section 7. Elimination of Cumulative Voting. No holder of
any class of stock of the corporation shall be entitled to cumulate
votes at any election of Directors of the corporation.
ARTICLE SIX
Certificate of Shares
Section 1. Form. The Certificates of 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 of 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
6
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 or 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
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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
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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
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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
10
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 adopted, amended, or repealed by the
vote of Shareholders entitled to exercise a majority of the voting power
of the corporation or by the written assent of such Shareholders.
Subject to such right of Shareholders, these bylaws, other than a bylaw
or amendment thereof changing the authorized number of Directors, may be
adopted, amended or repealed by the Board.
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.
