EXHIBIT 3.2.9
SANMINA-SCI SYSTEMS ENCLOSURES, LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
SANMINA-SCI SYSTEMS ENCLOSURES, LLC
AMENDED AND RESTATED LIMITED LIABILITY COMPANY
OPERATING AGREEMENT
THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY OPERATING AGREEMENT
(the "Agreement") is entered into this __ day of December, 2002, by SCI
TECHNOLOGY, INC. (the "Member") as the sole Member of SANMINA-SCI SYSTEMS
ENCLOSURES, LLC, a Delaware limited liability company (the "Company") organized
pursuant to the Delaware Limited Liability Company Act (the "Act").
OPERATING AGREEMENT:
ARTICLE 1
FORMATION
Section 1.1 Registered Agent and Office.
The Company's registered agent for service of process and registered
office shall be The Corporation Trust Company, 1209 Orange Street, Wilmington,
Delaware 19801. The Company's Managers (as defined herein) may, from time to
time, pursuant to the relevant provisions of the Act, change the registered
agent or office.
Section 1.2 Business Purpose.
The business and purposes of the Company shall be to engage in any
lawful business permitted by the Act. Subject to the terms of this Agreement,
the Company shall have all powers of a limited liability company under the Act.
ARTICLE 2
BOARD OF MANAGERS
Section 2.1 Board of Managers.
The management of the Company shall be vested in a Board of Managers
(the "Board"), subject to the Managers' authority to delegate powers and duties
to Officers of the Company; provided that no Manager, acting solely in his or
her capacity as a Manager, shall have the authority to act on behalf of or bind
the Company, unless expressly authorized to do so by the Board.
Section 2.2 Number and Tenure of Managers.
The number of Managers shall be fixed by the Member. Each Manager shall
hold office until such Manager's successor is appointed by the Member, or until
such Manager's earlier
resignation or removal by the Member. The current Managers comprising the Board
are Michael M. Sullivan and Steven H. Jackman.
Section 2.3 Regular Meetings of the Board of Managers.
Regular meetings of the Board may be held without notice at such time
and in such place, either within or without the State of Delaware, as shall from
time to time be determined by the Board.
Section 2.4 Special Meetings.
(a) Special meetings of the Board may be called by or at
the request of the Member, the President or at least
one-third of the number of Managers constituting the
whole board. The person or persons authorized to call
special meetings of the Board may fix any place,
either within or without the State of Delaware, as
the place for holding any special meeting of the
Board called by them.
(b) Unless waived as provided herein, notice of any
special meeting of the Board shall be given at least
two (2) days previous thereto by written notice to
each Manager at his or her address. If mailed, such
notice shall be deemed to be delivered when deposited
in the United States Mail so addressed, with first
class postage thereon prepaid. If sent by any other
means (including facsimile, courier, or express mail,
etc.), such notice shall be deemed to be delivered
when actually delivered to the home or business
address of the Manager.
Section 2.5 Quorum of Managers.
A majority of the total number of Managers fixed pursuant to this
Agreement shall constitute a quorum for the transaction of business. If less
than a majority of the Managers are present at a meeting of the Board, a
majority of the Managers present may adjourn the meeting from time to time
without further notice.
Section 2.6 Voting of Managers.
The vote of the majority of the Managers present at a meeting at which
a quorum is present shall be the act of the Board.
Section 2.7 Resignation and Removal of Managers.
(a) Any Manager may resign at any time upon written
notice to the Company.
(b) A Manager, or the entire Board of Managers, may be
removed at any time, with or without cause, by the
Member.
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Section 2.8 Vacancies.
Vacancies in the Board shall be filled by appointment by the Member or,
if the Member fails to fill any vacancy on the Board, by a majority of the
remaining Managers.
Section 2.9 Participation by Video or Telephone Conference of
Managers.
Members of the Board, or any committee designated by the Board, may
participate in a meeting of the Board, or committee thereof, by means of
conference telephone or similar communications equipment as long as all persons
participating in the meeting can speak with and hear each other. Participation
by a Manager pursuant to this Section 2.9 shall constitute presence in person at
such meeting.
Section 2.10 Actions Requiring the Consent of the Member.
Without the approval of the Member, the Board shall not have authority
to:
(a) do any act in contravention of this Agreement;
(b) do any act which would make it impossible to carry on
the ordinary business of the Company;
(c) co-mingle Company funds with funds of a Manager;
(d) confess a judgment against the Company;
(e) merge or consolidate the Company with or into any
other entity or change or reorganize the Company into
any other legal form;
(f) execute or deliver any general assignment for the
benefit of creditors of the Company or permit the
entry of an order of relief against the Company under
any state or federal bankruptcy laws; or
(g) sell or transfer all, or substantially all, of the
assets of the Company.
Section 2.11 Action Without Meeting.
Any action required or permitted by law or by this Agreement to be
taken by the Board may be taken by written consent, without a meeting, if such
consent is executed by not less than a majority of the Board. Notice of such
action without a meeting by less than unanimous written consent shall be given
within ten (10) days of the taking of such action to those Managers of record on
the date when the written consent is first executed who did not participate in
taking the action.
Section 2.12 Waiver of Notice.
(a) A written waiver of any required notice, signed by
the person entitled to notice, whether before or
after the date stated therein, shall be deemed
equivalent to notice. Neither the business to be
transacted at, nor the purpose
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of, any regular or special meeting of the Managers
need be specified in any written waiver of notice.
(b) Attendance of a person at a meeting shall constitute
a waiver of notice of such meeting.
ARTICLE 3
AUTHORITY OF THE MEMBER
Section 3.1 Authority of the Member.
Except as otherwise provided in this Agreement, the Member shall not
participate in the management or control of the Company's business, transact any
business for the Company, or have the power to act for or bind the Company, said
powers being vested solely and exclusively in the Managers and the Officers of
the Company.
Section 3.2 Rights of the Member. The Member shall have the
following rights:
(a) the Member may give its consent to any of the items
specified in Section 2.10 above;
(b) the Member may elect to dissolve the Company;
(c) the Member may consent to any amendments to this
Agreement or the Certificate of Formation as provided
in Section 9.1 below; and
(d) the Member may appoint and remove a Manager in
accordance with the applicable provisions of this
Agreement.
ARTICLE 4
OFFICERS
Section 4.1 General Provisions.
The Officers of the Company shall be those Officers as may be elected
by the Managers or appointed as provided in this Agreement from time to time
including, but not limited to, a Chief Executive Officer, a President, a
Treasurer, and a Secretary. Any two or more offices may be held by the same
person. The salary of each Officer, if any, shall be set by the Board; provided
that the salary, if any, of an Officer who is a Manager shall be set by the
Member.
Section 4.2 Election and Appointment of Officers.
The Board shall elect the Officers, and each Officer shall serve for
the term of office for which he is elected or appointed and until his successor
has been elected or appointed and has qualified, or his earlier resignation,
removal from office by the Board or death.
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Section 4.3 Chief Executive Officer. The Chief Executive Officer
shall have such duties and such powers as the Member may be from time
to time prescribe, and, in addition, in the absence or disability of the
President, and in priority to any vice president, the Chief Executive Officer
shall perform the duties and exercise the powers of the President.
Section 4.4 President.
The President shall be responsible for the general and active
management of the business of the Company, and shall have the authority to
conduct all ordinary business on behalf of the Company and may execute and
deliver on behalf of the Company any agreement conveyance, note or similar
document, provided that the approval of the Board or the Member is not required
by this Agreement.
Section 4.5 Treasurer.
The Treasurer shall be responsible for the financial books and records
of the Company, and for keeping accurate accounts thereof, and shall have such
other duties and powers as may from time to time be delegated to him by the
President or the Board.
Section 4.6 Secretary.
The Secretary shall keep minutes of all meetings of the Board of the
Company, have charge of the minute books, ownership records and seal of the
Company and perform such other duties and have such other powers as may from
time to time be delegated to him by the President or the Board.
Section 4.7 Assistant Secretaries.
Assistants to the Secretary may be appointed by the President or
elected by the Board and shall perform such duties and have such powers as
delegated to them by the President or the Board.
Section 4.8 Vice Presidents.
The Company may have one or more Vice Presidents, elected by the Board,
who shall perform such duties and have such powers as may be delegated by the
President or the Board.
Section 4.9 Removal of Officer.
At a meeting of the Board called expressly for such purpose, any
Officer may be removed as an Officer by the affirmative vote of a majority of
the Managers.
Section 4.10 Actions Requiring the Consent of the Board.
Without the approval of the Board, no Officer shall have authority to:
(a) do any act in contravention of this Agreement;
(b) do any act which would make it impossible to carry on
the ordinary business of the Company;
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(c) pledge the credit of the Company for any purpose
except for Company purposes;
(d) sell or transfer all, or substantially all, of the
assets of the Company;
(e) cause the Company to guarantee any material debt
obligations of any person other than the Company;
(f) make any distribution; or
(g) assume or create any material indebtedness other than
in the ordinary course of business.
ARTICLE 5
LIMITATIONS ON AUTHORITY;
INDEMNIFICATION AND LIABILITY
Section 5.1 Limitation of Authority.
(a) The Member, acting solely in its capacity as a
Member, is not an agent of the Company and does not
have any authority to act on behalf of the Company,
execute any instrument in connection with the
carrying on of the Company's business and affairs, or
otherwise bind the Company in any matter.
(b) Each Manager, acting solely in his capacity as a
Manager, is not an agent of the Company and does not
have any authority to act on behalf of the Company,
execute any instrument in connection with the
carrying on of the Company's business and affairs, or
otherwise bind the Company in any matter.
Section 5.2 Liability of the Member and Managers.
(a) The Member shall have no duties or obligations to the
Company solely by reason of acting in its capacity as
a Member.
(b) Each Manager shall act in a manner he or she believes
in good faith to be in the best interests of the
Company, and with the care an ordinarily prudent
person in a like position would exercise under
similar circumstances in carrying on the business and
affairs of the Company; provided that no Manager
shall have any personal liability to the Company or
the Member for any loss or damage sustained by the
Company or the Member for breach of a fiduciary or
other duty in connection with this Agreement as a
Manager, by reason of any act or omission occurring
subsequent to the date when this provision becomes
effective, except that this provision shall not
eliminate or limit the liability of a Manager for (i)
intentional misconduct or a knowing violation of law,
or (ii) any transaction from which the Manager
derived an improper personal benefit in violation or
breach of this Agreement.
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Section 5.3 Indemnification.
(a) Under the circumstances prescribed in Sections 5.3(c)
and 53(e), the Company shall indemnify and hold
harmless any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed claim, action, suit or
proceeding, whether formal or informal, and whether
civil, criminal, administrative or investigative,
including appeals, (other than an action by or in the
right of the Company) by reason of the fact that the
person is or was a Member, Manager, officer, employee
or agent of the Company or is or was serving at the
request of the Company as a director, officer,
partner, trustee, employee or agent of another
foreign or domestic limited liability company,
corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise, against
expenses (including attorneys' fees), judgments,
fines, penalties and amounts paid in settlement
actually and reasonably incurred by the person in
connection with such claim, action, suit or
proceeding if the person acted in good faith and in a
manner he or she reasonably believed to be in or not
opposed to the best interests of the Company, and
with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct
was unlawful. The termination of any claim, action,
suit or proceeding by judgment, order, settlement,
conviction, or upon a plea of nolo contendere or its
equivalent, shall not, of itself, create a
presumption that (i) the person did not act in good
faith, (ii) the person did not act in a manner which
he or she reasonably believed to be in or not opposed
to the best interests of the Company, and (iii) with
respect to any criminal action or proceeding, that
the person had reasonable cause to believe that his
or her conduct was unlawful.
(b) Under the circumstances prescribed in Sections 5.3(c)
and 5.3(e), the Company shall indemnify and hold
harmless any person who was or is a party or is
threatened to be made a party to any threatened,
pending or completed claim, action, suit or
proceeding by or in the right of the Company to
procure a judgment in its favor by reason of the fact
that the person is or was a Member, Manager, officer,
employee or agent of the Company or is or was serving
at the request of the Company as a director, officer,
partner, trustee, employee or agent of another
foreign or domestic limited liability company,
corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise against
expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with
the defense or settlement of such claim, action, suit
or proceeding if the person acted in good faith and
in a manner he or she reasonably believed to be in or
not opposed to the best interests of the Company;
except that no indemnification shall be made in
respect of any claim, issue or matter as to which
such person shall have been adjudged to be liable in
the performance of his or her duty to the Company,
unless and only to the extent that the Court of
Chancery or the court in which such action or suit
was brought shall determine upon application that,
despite the adjudication of liability but in view of
all the circumstances of the case,
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such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) To the extent that a Member, Manager, officer,
employee or agent of the Company has been successful
on the merits or otherwise in defense of any claim,
action, suit or proceeding referred to in Sections
5.3(a) and 5.3(b), or in defense of any claim, issue
or matter therein, such person shall be indemnified
against expenses (including attorneys' fees) actually
and reasonably incurred by him or her in connection
therewith, notwithstanding that he has not been
successful on any other issue or matter in any such
claim, action, suit or proceeding.
(d) The Company shall indemnify and hold harmless any
person who is or was a Member, Manager, officer,
employee or agent of the Company, or is or was
serving at the request of the Company as a director,
officer, partner, trustee, employee or agent of
another foreign or domestic limited liability
company, corporation, partnership, joint venture,
trustee, employee benefit plan or other enterprise,
against expenses (including, attorneys' fees)
actually and reasonably incurred by such person in
connection with the appearance of such person as a
witness in any claim, action, suit or proceeding,
whether formal or informal and whether civil,
criminal, administrative or investigative, including
appeals, as a result of such person having occupied
such office or position, or undertaken such service
when such person is not a party to such action, suit
or proceeding.
(e) Except as provided in Section 5.3(c) and except as
may be ordered by a court, any indemnification under
Sections 5.3(a) and 5.3(b) shall be made by the
Company only as authorized in the specific case upon
a determination that indemnification of the Member,
Manager, officer, employee or agent is proper in the
circumstances because such person has met the
applicable standard of conduct set forth in Sections
5.3(a) and 5.3(b). Such a determination shall be made
(i) by the Board by a majority vote of a quorum
consisting of Managers who were not parties to, or
who have been wholly successful on the merits or
otherwise with respect to, such claim, action, suit
or proceeding, or (ii) if such a quorum is not
obtainable, or, if obtainable, a quorum of
disinterested Managers so directs, by the firm of
independent legal counsel then employed by the
Company, in a written opinion, or (iii) other than
with respect to indemnification with respect to the
Member, by the affirmative vote of the Member.
(f) Expenses (including attorneys' fees) incurred in
defending a civil or criminal claim, action, suit or
proceeding shall be paid by the Company in advance of
the final disposition of such claim, action, suit or
proceeding upon receipt of an undertaking by or on
behalf of the Member, Manager, officer, employee or
agent to repay such amount if it shall ultimately be
determined that he or she is not entitled to be
indemnified by the Company as authorized in this
Section.
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(g) The indemnification and advancement of expenses
provided by or granted pursuant to this Section shall
be a contract right, shall not be deemed exclusive of
any other rights, in respect of indemnification or
otherwise, to which those seeking indemnification or
advancement of expenses may be entitled under any
statute, rule or law, provisions of any resolution,
agreement or otherwise specifically or in general
terms, both as to action by a Member, Manager,
officer, employee or agent in his or her official
capacity and as to action in another capacity while
holding such office or position, and shall continue
as to a person who has ceased to be a Member,
Manager, officer, employee or agent and shall inure
to the benefit of the heirs, executors and
administrators of such a person. The Company shall
not effect any sale of substantially all of its
assets, merge, consolidate or effect other
reorganizations unless the purchaser or surviving
entity agrees to assume all such obligations of the
Company.
(h) The Company may purchase and maintain insurance on
behalf of any person who is or was a Member, Manager,
officer, employee or agent of the Company, or is or
was serving at the request of the Company as a
director, officer, partner, trustee, employee or
agent of another foreign or domestic corporation,
partnership, joint venture, trust, employee benefit
plan or other enterprise against any liability
asserted against such person and incurred by him or
her in any such capacity, or arising out of his or
her status as such, whether or not the Company would
have the power to indemnify such person against such
liability under the provisions of this Section.
(i) For the purposes of this Section, the Company shall
be deemed to have requested a Manager, Member,
officer, employee or agent of the Company to serve an
employee benefit plan whenever the performance by
such person of his or her duties to the Company also
imposes duties on, or otherwise involves services by,
such person to the plan or to participants in or
beneficiaries of the plan; "fines" shall be deemed to
include excise taxes assessed on such person with
respect to an employee benefit plan pursuant to
applicable law; and action taken or omitted by such
person with respect to an employee benefit plan in
the performance of his or her duties for a purpose
reasonably believed by him or her to be in the
interest of the participants and beneficiaries of the
plan shall be deemed to be for a purpose which is not
opposed to the best interests of the Company. Any
indemnification under this Section with regard to any
employee benefit plan shall apply notwithstanding any
provisions of any employee benefit plan.
(j) If for any reason, any provision of this Section is
held invalid, in whole or in part, such invalidity
shall not affect any other provision or part of this
Section not held so invalid, and each such other
provision or part shall to the full extent consistent
with law continue in full force and effect.
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ARTICLE 6
CONFLICTS OF INTEREST
Section 6.1 Conflicts of Interest.
Any Manager or Officer that proposes to enter into a transaction,
directly or indirectly, with the Company must first receive the approval of the
Board. Any transaction described in this Section 6.1 that is not first approved
by the Board shall, at the discretion of the Board, be null and void.
ARTICLE 7
INCOME TAX MATTERS
Section 7.1 Federal, State and Local Income Taxes.
It is the intention of the Member that the existence of the Company be
ignored for federal, state and local income tax purposes.
ARTICLE 8
DISSOLUTION
Section 8.1 Dissolution.
The Company shall be dissolved only upon the election of the Member.
Dissolution of the Company shall be effective on the date designated by the
Member.
ARTICLE 9
AMENDMENTS AND CONSENTS
Section 9.1 Amendments.
This Agreement and the Certificate of Formation may be amended only
with the approval of the Member.
Section 9.2 Method of Giving Consent.
Any consent required by this Agreement must be in writing, and unless
otherwise expressly agreed by the Member or the Managers as the case may be,
must be given by the Member or Managers as the case may be, at or prior to the
doing of the act or thing for which the consent is solicited.
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ARTICLE 10
GENERAL PROVISIONS
Section 10.1 Headings.
The headings in this Agreement are inserted for convenience and
identification only and are in no way intended to describe, interpret, define or
limit the scope, extent or intent of this Agreement or any provision hereof.
Section 10.2 Governing Law.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of California.
Section 10.3 Severability.
In the event any provision of this Agreement is held to be illegal,
invalid or unenforceable to any extent, the legality, validity and
enforceability of the remainder of this Agreement shall not be affected thereby
and shall remain in full force and effect and shall be enforced to the greatest
extent permitted by law.
Section 10.4 Waivers.
No waiver of any breach or default hereunder shall be considered valid
unless in writing, and no such waiver shall be deemed a waiver of any subsequent
breach or default of the same or similar nature.
Section 10.5 Agreement; Effect of Inconsistencies with Act.
This Agreement shall govern the existence and organization of the
Company, and except to the extent a provision of this Agreement expressly
incorporates federal income tax rules by reference to sections of the Internal
Revenue Code of 1986, as amended, or regulations thereto or is expressly
prohibited or ineffective under the Act, this Agreement shall govern, even when
inconsistent with, or different than, the provisions of the Act or any other law
or rule. To the extent any provision of this Agreement is invalid or
unenforceable under the Act, the provisions of this Agreement shall be enforced
to the maximum extent permitted in order to make this Agreement effective under
the Act, and all other parts of this Agreement will remain in force.
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IN WITNESS WHEREOF, the Member has executed this Agreement effective as
of the date first written above.
MEMBER:
SCI TECHNOLOGY, INC.
By: /s/ Michael M. Sullivan
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Name: Michael M. Sullivan
Title: Secretary