EXHIBIT 3.4
AMENDMENT NO. 3
to the
SECOND AMENDED AND RESTATED OPERATING AGREEMENT
of
CHEROKEE INTERNATIONAL, LLC
This Amendment No. 3 (this "AMENDMENT") to the Second Amended and
Restated Operating Agreement, dated as of April 30, 1999, as amended by
Amendment No. 1 thereto, dated as of June 30, 1999 and Amendment No. 2
thereto, dated as of June 30, 1999 (the "AGREEMENT"), of Cherokee
International, LLC, a California limited liability company (the "COMPANY") is
made and entered into as of June __, 2000 among the Company and such members
of the Company as are party to this Amendment.
WHEREAS, Section 4.1.2 of the Agreement provides that, under certain
circumstances, Members shall have the opportunity to make additional Capital
Contributions on a pro rata basis in accordance with their Percentage Interests;
and
WHEREAS, the issuance of additional membership units of the Company to
individuals who are not "Accredited Investors" as set forth in the Rules and
Regulations promulgated under the Securities Act of 1933, as amended, is
impracticable on a commercially reasonable basis.
NOW, THEREFORE, in consideration of the mutual agreements and promises
herein contained, the parties hereto, intending to be legally bound hereby,
agree as follows:
1. DEFINITIONS: REFERENCES. Unless otherwise specifically defined herein,
each term used herein that is defined in the Agreement shall have the
meaning assigned to such term in the Agreement. Each reference to
"hereof," "hereunder," 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.
2. EFFECTIVENESS OF AMENDMENTS. Upon approval by a Supermajority of the
members of the Management Committee and Members having at least a
Majority in Interest, including the signatories hereto, this Amendment
shall become effective and the Agreement shall be amended as provided
herein as of June __, 2000.
3. AMENDMENT OF SECTION 4.1.2. Section 4.1.2 of the Operating Agreement is
amended to read its entirety as follows:
"No Member shall be required to make any additional Capital
Contributions. To the extent approved by the Management
Committee by Supermajority Vote, from time to time, the
Members may be permitted to make additional Capital
Contributions if and to the extent they so desire, and if the
Management Committee by Supermajority Vote determines that
such additional Capital Contributions are necessary or
appropriate for the conduct of the Company's business. In that
event, the Members shall have the opportunity, but not the
obligation, to participate in such additional Capital
Contributions on a pro rata basis in accordance with their
Percentage Interests; PROVIDED, that no Member shall have the
opportunity to make such additional Capital Contributions
unless such Member has previously demonstrated to the
reasonable satisfaction of the Management Committee that such
Member is an Accredited Investor within the meaning of the
Rules and Regulations promulgated under the Securities Act of
1933, as amended. Each Member shall receive a credit to his or
her Capital Account in the amount of any additional capital
contributed in cash (or the fair market value of any non-cash
contribution) which he or she contributes to the Company.
Immediately following such Capital Contributions, the
Percentage Interests shall be adjusted by the Management
Committee through issuances of additional Units (which shall
be voting Units unless the Member to receive such Units either
(i) holds only non-voting Units, or (ii) requests non-voting
Units) as may be necessary to reflect the new relative
proportions of the Capital Accounts of the Members, taking
into consideration any adjustments to the Capital Accounts
made in accordance with the provisions of Tres. Reg. Section
1.704-1(b)(2)(iv)(f). The fair market value of any non-cash
contribution shall be determined in good faith by
Supermajority Vote of the Management Committee
representatives."
Emphasis on amended language for purposes of Members' consent only.
4. EFFECTIVENESS OF THE AGREEMENT. Except as amended hereby, the Agreement
shall continue in full force and effect.
5. 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:
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Its:
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MEMBER:
By:
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XXXXXX XXXXX, AS TRUSTEE OF
THE XXXXX FAMILY TRUST,
DATED JULY 17, 1987
MEMBER:
By:
--------------------------------
XXXXX XXXXX, AS TRUSTEE OF
THE XXXXX FAMILY TRUST,
DATED JULY 17, 1987
MEMBER:
By:
--------------------------------
XXXX XXXXX, AS TRUSTEE OF THE
XXXXXX XXXXX 1997 IRREVOCABLE
TRUST I, DATED NOVEMBER 3, 1997
MEMBER:
By:
--------------------------------
XXXXX XXXXXX, AS TRUSTEE OF
THE XXXXXX XXXXX 1997 IRREVOCABLE
TRUST II, DATED NOVEMBER 3, 1997
MEMBER:
By:
--------------------------------
XXXX XXXXX, AS TRUSTEE OF
THE XXXXXX XXXXX 1997 IRREVOCABLE
TRUST III, DATED NOVEMBER 3, 1997
MEMBER:
By:
--------------------------------
XXXX XXXXX, AS TRUSTEE OF THE
XXXXX XXXXX 1997 IRREVOCABLE
TRUST I, DATED NOVEMBER 3, 1997
MEMBER:
By:
--------------------------------
XXXXX XXXXXX, AS TRUSTEE OF
THE XXXXX XXXXX 1997 IRREVOCABLE
TRUST II, DATED NOVEMBER 3, 1997
MEMBER:
By:
--------------------------------
XXXX XXXXX, AS TRUSTEE OF
THE XXXXX XXXXX 1997 IRREVOCABLE
TRUST III, DATED NOVEMBER 3, 1997
MEMBER:
BIKOR CORPORATION
By:
--------------------------------
Its:
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MEMBER:
By:
--------------------------------
X. XXX XXXX XXXXXXX
MEMBER:
By:
--------------------------------
XXXXXX XXXXXXX
MEMBER:
By:
--------------------------------
XXXXXX XXXXXXX
MEMBER:
By:
--------------------------------
XXX XXXX
MEMBER:
By:
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CONG XXXX XX
MEMBER:
By:
--------------------------------
XXXXX XXXX
MEMBER:
By:
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XXXXX XXXXX
