EXHIBIT 3.8
SECOND AMENDMENT
TO THE
OPERATING AGREEMENT
OF
Xxxxxxx Dynamics, L.L.C.
This Second Amendment (this "Amendment") to the Operating Agreement, as
amended, of Xxxxxxx Dynamics, L.L.C. (the "Company") is made by and among its
successor members, AKS INVESTMENTS, INC. ("AKS") and DDI HOLDING, INC. ("DDI").
WHEREAS, AKS and DDI are the successor members of the Company and desire to
amend the Operating Agreement of the Company ("Agreement") as specified in this
Amendment and such amendment shall be deemed to be effective as of the date of
this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises
contained herein, the parties, intending to amend the Agreement and to be
legally bound, hereby agree as follows.
1. Amendment to Section 4.1.1 of Agreement. Section 4.1.1 of the Agreement
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is hereby amended to read as follows:
4.1.1 Profits or Losses. After giving effect to the special
allocations set forth in Sections 4.2 and 4.3, Profits or Losses shall
be allocated 100% to DDI Holding, Inc. or its successor for the
taxable year of the Company beginning January 1, 2001. For all other
taxable years of the Company, Profits or Losses shall be allocated to
the Interest Holders in proportion to their Percentages.
2. Amendment to Section 4.4.3 of Agreement. Section 4.4.3 of Agreement is
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hereby amended to read as follows:
4.4.3 All Profits and Losses shall be allocated in accordance with
Section 4.1.1, and all distributions shall be made to those Persons
shown on the records of the Company to have been Interest Holders as
of the last day of the taxable year for which the allocation or
distribution is to be made. Notwithstanding the foregoing, unless the
Company's taxable year is separated into segments, if there is a
Transfer or other Withdrawal during the taxable year, the Profits and
Losses shall be allocated between the original Interest Holder and the
successor on the basis of the number of days each of them was an
Interest Holder during the taxable year; provided, however, the
Company's
taxable year shall be segregated into two or more segments in order to
account for Profits, Losses or proceeds attributable to a Capital
Transaction or to any other extraordinary non-recurring items of the
Company.
3. Construction of the Amendment and the Agreement. This Amendment and the
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Agreement, as amended, shall be construed together to be one agreement between
the parties. Capitalized terms defined in the Agreement and not otherwise
defined herein shall have the meanings given those terms in the Agreement.
Except to the extent specifically provided in this Amendment, all of the terms
of the Agreement shall be binding and continue in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Amendment to be executed
as of the 1st day of January, 2001.
AKS INVESTMENTS, INC.
By: /s/ Xxxx X. Xxxxx
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Printed: Xxxx X. Xxxxx
Its: President
DDI HOLDING, INC.
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
Its: President
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