EXHIBIT 3.2.2
AMENDMENTS
TO THE
SECOND AMENDED AND RESTATED
OPERATING AGREEMENT
1. That Section 6.5 of the Operating Agreement should be deleted in its
entirety and the following substituted in lieu thereof:
6.5 REMOVAL OF DIRECTOR. Any Director may be removed from time to time
with or without cause by the affirmative vote of Members holding a
Majority in Interest.
2. That Section 6.12, Section 6.13(a) and Section 6.13(b) of the Operating
Agreement should be deleted in their entirety and the following substituted
in lieu thereof:
6.12 LIABILITIES OF DIRECTORS. In carrying out their duties hereunder,
the Directors shall not be liable to the Company or to any Member for
any actions taken in good faith and reasonably believed by them to be
in the best interest of the Company or in reliance on the provisions
of this Agreement or the Articles, or for good faith errors of
judgment, but shall only be liable for misconduct or negligence in the
performance of their duties as Directors. The Directors shall not be
expected to devote their full time and attention to the affairs of the
Company, but shall devote such amounts of time and attention as are
reasonable and appropriate in their good faith judgment under the
circumstances prevailing from time to time.
6.13 INDEMNIFICATION OF THE DIRECTORS, THEIR AFFILIATES AND CONTROL
PERSONS.
(a) Neither the Directors nor any Officer shall be liable to the
Company or any Member for any act or omission based upon errors of
judgment or other fault in connection with the business or affairs of
the Company if the Board determines that such course of conduct was in
the best interest of the Company and did not result from the
negligence or misconduct of such Director or Officer.
(b) To the fullest extent permitted by law, the Directors and
Officers (each such person being referred to herein as an
"INDEMNITEE"), shall be indemnified and held harmless by the Company
from and against any and all losses, claims, damages, settlements and
other amounts arising from any and all claims (including attorneys'
fees and expenses, as such fees and expenses are incurred), demands,
actions, suits or proceedings (civil, criminal, administrative or
investigative), in which they may be involved, as a party or
otherwise, by reason of their management of the affairs of the
Company, whether or not they continue to be such at the time any such
liability or expense is paid or incurred; provided that Indemnitee
shall not be entitled to the foregoing indemnification if a court of
competent jurisdiction shall have determined that such losses, claims,
damages, liabilities, expenses or such other amounts resulted
primarily from the negligence
or misconduct of such Indemnitee. The termination of a proceeding by
judgment, order, settlement or conviction upon a plea of nolo
contenders, or its equivalent, shall not, of itself, create any
presumption that such losses, claims, damages, liabilities, expenses
or such other amounts resulted primarily from the negligence or
misconduct of any Indemnitee or that the conduct giving rise to such
liability, was not in the best interest of the Company. The Company
shall also indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed
action by or in the right of the Company to procure a judgment in its
favor by reason of the fact that such Indemnitee is or was an agent of
the Company, against any losses, claims, damages, liabilities,
expenses or any other amounts incurred by such Indemnitee in
connection with the defense or settlement of such action; provided
that no Indemnitee shall be entitled to the foregoing indemnification
if a court of competent jurisdiction shall have determined that any
such losses, claims, damages, liabilities, expenses or such other
amounts resulted from the negligence or misconduct of such Indemnitee.
The Company may advance any Indemnitee any expenses (including,
without limitation, attorneys' fees and expenses) incurred as a result
of any demand, action, suit or proceeding referred to in this
paragraph (b) provided that (i) the legal action relates to the
performance of duties or services by the Indemnitee on behalf of the
Company; and (ii) the Indemnitee gives a full recourse promissory note
to the Company for the amounts of such advances payable in the event
that the Indemnitee is determined to be not entitled to
indemnification hereunder.
3. That Section 8.3 of the Operating Agreement should be deleted in its
entirety and the following substituted in lieu thereof:
8.3 MEETINGS OF MEMBERS. The annual meeting of Members shall be held
on such date as the Board shall by resolution specify within a period
commencing on January 1 and ending on June 30 in each year, beginning
with 2002. At each annual meeting, Members shall conduct such business
as may be properly presented to such meeting. If the day fixed for the
annual meeting shall be a legal holiday, such meeting shall be held on
the next succeeding business day. Special meetings of Members of the
Company may be called by the Chairman of the Board, by any three (3)
Directors, or upon the written demand of Members holding at least a
ten percent (10%) Percentage Interest and shall be held at the
principal place of business of the Company, or elsewhere as the notice
of such meeting shall direct. Members may attend any such meeting in
person or by proxy.
Effective Date: July 16, 2001.
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, Secretary
