Exhibit 3.2
AMENDMENT NO. 1
to the
SECOND AMENDED AND RESTATED OPERATING AGREEMENT
of
CHEROKEE INTERNATIONAL, LLC
This Amendment No. 1 (this "Amendment") to the Second Amended and Restated
Operating Agreement, dated as of April 30, 1999 (the "Agreement"), of Cherokee
International, LLC, a California limited liability company (the "Company"), is
made and entered into as of June 28, 1999 among the Company and such members of
the Company as are party to this Amendment.
WHEREAS, the Management Committee of the Company has approved a 75-for-1
split of the outstanding Class A and Class B Units, from 4,000 to 300,000 and
from 396,000 to 29,700,000, respectively; and
WHEREAS, the members of the Company desire to make certain other changes to
the Agreement.
NOW, THEREFORE, in consideration of the mutual agreements and promises
herein contained, the parties hereto, intending to be legally bound hereby,
agree as follows:
SECTION 1. DEFINITIONS: REFERENCES. Unless otherwise specifically defined
herein, each term used herein that is defined in the Agreement shall have the
mean ing assigned to such term in the Agreement. Each reference to "hereof,"
"hereun der," herein" and "hereby" and other similar reference contained in the
Agreement shall from and after the date of this Amendment refer to the Agreement
as amended hereby.
SECTION 2. EFFECTIVENESS OF AMENDMENTS. This Amendment shall become
effective and the Agreement shall be amended as provided herein as of June 28,
1999.
SECTION 3. AMENDMENT OF SECTION 1.1. The definition of "Existing Member" in
Section 1.1 of the Agreement is amended to read in its entirety as follows:
"Existing Member" means the Persons identified in the recitals hereto, and
shall also include such additional Members as shall be set forth in any
subscription agreement between the Company and the Member.
SECTION 4. AMENDMENT OF SECTION 3.1. Section 3.1 of the Agreement is
amended to delete the word "initial" from the heading and the first sentence.
SECTION 5. AMENDMENT OF SECTION 4.1. Section 4.1 of the Agreement is
amended to read in its entirety as follows:
4.1 CAPITAL CONTRIBUTIONS.
4.1 Concurrently with the execution of this Agreement, (i) each Member's
Capital Account shall be in the amount shown opposite such Mem ber's name on
APPENDIX A attached hereto, (ii) each Existing Member shall surrender to the
Company for cancellation certificates representing the Units of each class
held by such Member and (iii) the Company shall issue each Member the number
and class of Units set forth opposite such Member's name on APPENDIX A
attached hereto. Such issuance by the Company shall be reflected by an
appropriate entry on the Company's books and records. The Company shall issue
a total of 4,000 Class A Units and 396,000 Class B Units upon the execution
of this Agreement. In addition, on June 28, 1999, the Company shall issue to
each Member 74 Class A Units for each Class A Unit held by such Member and 74
Class B Units for each Class B Unit held by such Member. All Capital
Contributions by the Members made after the date hereof shall be paid in
cash, by certified check or wire transfer of immediately available funds to a
bank or custodial account established for the Company by the Management
Committee, or, if approved by the Management Committee, in other property
with a net fair market value established by the Management Committee, and
shall be reflected by an appropriate entry on the Company's books and records
and on APPENDIX A attached hereto. Notwithstanding the foregoing, all Capital
Contri butions made as a result of the exercise of an Option shall be in
accordance with the terms of the applicable Employee Plan.
2
SECTION 6. DELETION OF SECTION 6.6. Section 6.6 of the Agreement is deleted
in its entirety.
SECTION 7. AMENDMENT OF APPENDIX A. Appendix A to the Agreement is amended
to read in its entirety as follows:
APPENDIX A
Member Name Class A Units Class B Units Percentage Capital Capital
and Address Interest Contribution Account**
Cherokee Investor Partners, LLC 180,000 17,820,000 60.00% --
c/o GFI Energy Ventures LLC
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇, 90,000 2,160,000 7.50% --
Trustees of the ▇▇▇▇▇ Family Trust
dated July 17, 1987*
▇▇▇▇ ▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇ 0 1,125,000 3.75% --
▇▇▇▇▇ 1997 Irrevocable Trust I
dated November 3, 1997*
▇▇▇▇ ▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇ 0 1,125,000 3.75% --
▇▇▇▇▇ 1997 Irrevocable Trust II
date November 3, 1997*
▇▇▇▇ ▇▇▇▇▇, Trustee of the ▇▇▇▇▇▇ 0 1,125,000 3.75% --
▇▇▇▇▇ 1997 Irrevocable Trust III
dated November 3, 1997*
▇▇▇▇ ▇▇▇▇▇, Trustee of the Manju 0 1,125,000 3.75% --
▇▇▇▇▇
1997 Irrevocable Trust I
dated November 3, 1997*
▇▇▇▇ ▇▇▇▇▇, Trustee of the Manju 0 1,125,000 3.75% --
▇▇▇▇▇
1997 Irrevocable Trust II
dated November 3, 1997*
▇▇▇▇ ▇▇▇▇▇, Trustee of the Manju 0 1,125,000 3.75% --
▇▇▇▇▇
1997 Irrevocable Trust III
dated November 3, 1997*
Bikor Corporation* 30,000 2,970,000 10.00% --
Totals: 300,000 29,700,000 100%
3
--------------------
* ▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇, ▇▇▇▇▇▇▇ Avenue, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
** Capital Accounts to be determined.
SECTION 8. EFFECTIVENESS OF THE AGREEMENT. Except as amended hereby, the
Agreement shall continue in full force and effect.
SECTION 9. INCORPORATION OF TERMS. This Amendment shall be governed by and
construed in accordance with Article XIII of the Agreement.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Amendment as of the day and year first above written.
MEMBER:
CHEROKEE INVESTOR PARTNERS, LLC
By: /s/ ▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Its: President
---------------------------
4
MEMBER:
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇ FAMILY TRUST, DATED JULY 17,
1987
MEMBER:
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF
THE ▇▇▇▇▇ FAMILY TRUST, DATED
JULY 17, 1987
MEMBER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇▇ ▇▇▇▇▇ 1997 IRREVOCABLE
TRUST I, DATED NOVEMBER 3, 1997
MEMBER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
--------------------------------
▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇▇ ▇▇▇▇▇ 1997 IRREVOCABLE
TRUST II, DATED NOVEMBER 3, 1997
MEMBER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇▇ ▇▇▇▇▇ 1997 IRREVOCABLE
TRUST III, DATED NOVEMBER 3, 1997
MEMBER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------
▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇ ▇▇▇▇▇ 1997 IRREVOCABLE
TRUST I, DATED NOVEMBER 3, 1997
MEMBER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇ ▇▇▇▇▇ 1997 IRREVOCABLE
TRUST II, DATED NOVEMBER 3, 1997
MEMBER:
By: /s/ ▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇▇▇▇▇, AS TRUSTEE OF THE
▇▇▇▇▇ ▇▇▇▇▇ 1997 IRREVOCABLE
TRUST III, DATED NOVEMBER 3, 1997
MEMBER:
BIKOR CORPORATION
By: /s/ BAHECHAR ▇. ▇▇▇▇▇
----------------------------
Its: President
---------------------------