EXHIBIT 3.2
AMENDED AND RESTATED
BY - LAWS
OF
CTI INDUSTRIES CORPORATION
ARTICLE I - OFFICES
SECTION 1. REGISTERED OFFICE. The registered office shall be
established and maintained at 1209 Orange Street, City of Wilmington, County of
New Castle in the State of Delaware.
Section 2. OTHER OFFICES. The corporation may have other offices,
either within or without the State of Delaware, at such place or places as the
Board of Directors may from time to time appoint or the business of corporation
may require.
ARTICLE II - MEETING OF STOCKHOLDERS
SECTION 1. ANNUAL MEETINGS. Annual meetings of stockholders for the
election of directors and for such other business as may be stated in the notice
of meeting, shall be held at such place, either within or without the State of
Delaware, and at such time and date as the Board of Directors, by resolution,
shall determine and as set forth in the notice of the meeting. In the event the
Board of Directors fails to so determine the time, date and place of meeting,
the annual meeting of stockholders shall be held at the registered office of the
corporation in Delaware on the 2nd Tuesday in April at 10:00 a.m.
If the date of the annual meeting shall fall upon a legal holiday, the
meeting shall be held on the next succeeding business day. At each annual
meeting, the stockholders entitled to vote shall elect a Board of Directors and
may transact such other corporate business as shall be stated in the notice of
the meeting.
SECTION 2. OTHER MEETINGS. Meetings of stockholders for any purpose
other than the election of directors may be held at such time and place, within
or without the State of Delaware, as shall be stated in the notice of the
meeting.
SECTION 3. VOTING. Each Stockholder entitled to vote in accordance with
the terms and provisions of the Certificate of Incorporation and these By-Laws
shall be entitled to one vote, in person or by proxy, for each share of stock
entitled to vote held
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by such stockholder, but no proxy shall be voted after three years from its date
unless such proxy provides for a longer period. Upon the demand of any
stockholder, the vote for directors and upon any question before the meeting
shall be by ballot. All elections for directors shall be decided by plurality
vote; all other questions shall be decided by majority vote except as otherwise
provided by the Certificate of Incorporation or the laws of the State of
Delaware.
SECTION 4. FIXING OF RECORD DATE. For the purpose of determining the
shareholders entitled to notice of or to vote at any meeting of shareholders or
any adjournment thereof, or to express consent to corporate action in writing
without a meeting, or to receive payment of any dividend, or other distribution
or allotment of any rights, or to exercise any rights in respect of any change,
conversion or exchange of shares or for the purpose of any other lawful action,
the Board of Directors of the corporation may fix in advance a record date which
shall not be more than sixty days and, not less than ten days, or in the case of
a merger or consolidation, not less than twenty days, before the date of such
meeting. If no record date is fixed, the record date for the determination of
shareholders entitled to notice of or to vote at a meeting of shareholders shall
be the date on which notice of the meeting is mailed, and the record date for
the determination of shareholders for any other purpose shall be the date on
which the Board of Directors adopts the resolution relating thereto. A
determination of shareholders of record entitled to notice of or to vote at a
meeting of shareholders shall apply to any adjournment of the meeting.
SECTION 5. QUORUM. Except as otherwise required by law, by the
Certificate of Incorporation or by these By-Laws, the presence, in person or by
proxy, of stockholders holding a majority of the stock of the corporation
entitled to vote shall constitute a quorum at all meetings of the stockholders.
In case a quorum shall not be present at any meeting, a majority in interest of
the stockholders entitled to vote thereat, present in person or by proxy, shall
have power to adjourn the meeting from time to time for a period not to exceed
thirty days from the originally scheduled date of the meeting, without notice
other than announcement at the meeting, until the requisite amount of stock
entitled to vote shall be present. At any such adjourned meeting at which the
requisite amount of stock entitled to vote shall be represented, any business
may be transacted which might have been transacted at the meeting as originally
noticed; but only those stockholders entitled to vote at the meeting as
originally noticed shall be entitled to vote at any adjournment or adjournments
thereof.
SECTION 6. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose, unless otherwise prescribed by statute or by the Certificate of
Incorporation, may be called by
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the president and shall be called by the president or secretary at a request in
writing of a majority of the directors or stockholders entitled to vote. Such
request shall state the purpose of the proposed meeting.
SECTION 7. NOTICE OF MEETINGS. Written notice, stating the place, date
and time of the meeting, and the general nature of the business to be
considered, shall be given to each stockholder entitled to vote thereat at this
address as it appears on the records of the corporation, not less than ten or
more than sixty days before the date of the meeting, either personally or by
mail, by or at the direction of the president, or the secretary, or the officer
or persons calling the meeting, to each shareholder of record entitled to vote
at such meeting. If mailed, such notice shall be deemed to be delivered when
deposited in the United States mail, addressed to the shareholder at this
address as it appears on the records of the corporation, with postage thereon
prepaid. When a meeting is adjourned to another time or place, notice need not
be given of the adjourned meeting of the time and place thereof are announced at
the meeting at which the adjournment is taken.
Whenever any notice whatever is required to be given under the
provision of any law, or under the provisions of the Certificate of
Incorporation of the Corporation or these By-Laws, a waiver thereof in writing
signed by the person or persons entitled to said notice, whether before or after
the time stated therein, shall be deemed proper notice.
SECTION 8. BUSINESS TRANSACTED. No business other than that stated in
the notice shall be transacted at any meeting without the unanimous consent of
all the stockholders entitled to vote thereat.
ARTICLE III - DIRECTORS
SECTION 1. NUMBER AND TERM. The number of directors shall be five (5).
The directors shall be elected at the annual meeting of the stockholders and
each director shall be elected to serve until his successor shall be elected and
shall qualify. Each director shall be elected for a term of one year and until
his successor is elected and qualified, except as otherwise provided herein or
required by law.
SECTION 2. REGULAR MEETINGS. Regular meetings of the Board of Directors
shall be held at such place or places, on such date or dates, and at such time
or times as shall have been established by the Board of Directors and publicized
among all directors. A notice of such regular meeting shall not be required.
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SECTION 3. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the President or any two directors and shall be held at such
place, on such date and at such time as they or he shall fix. Notice of the
place, date and time of each such special meeting shall be given each director
by whom it is not waived, by mailing written notice not less than three days
before the meeting or, by telegraphing the same not less than 18 hours before
the meeting, to each director at his business address. If mailed, such notice
shall be deemed to be delivered, when deposited in the United States mail so
addressed, with postage thereon prepaid. If notice be given by telegram, such
notice shall be deemed to be delivered when the telegram is delivered to the
telegram company. The attendance of a director at any meeting shall constitute a
waive of notice of such meeting, except where a director attends a meeting for
the express purpose of objecting to the transaction of any business because the
meeting is not lawfully called or convened. Neither the business to be
transacted at, nor the purpose of any regular or special meeting of the Board of
Directors need be specified in the notice of waiver of notice of such meeting.
SECTION 4. QUORUM. At any meeting of the Board of Directors not less
than four shall constitute a quorum for all purposes. If a quorum shall fail to
attend any meeting, a majority of these present may adjourn the meeting to
another place, date or time without further notice or waiver thereof.
SECTION 5. PARTICIPATION AND MEETINGS BY CONFERENCE TELEPHONE. Members
of the Board of Directors, or of any committee thereof, may participate in a
meeting of such board or committee by means of conference telephone or similar
communications equipment that enable all persons participating in a meeting to
hear each other. Such participation shall constitute presence in person at such
meeting for all purposes.
SECTION 6. CONDUCT OF BUSINESS. The act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors, except as otherwise provided herein or provided by law; provided,
however, that the following actions shall require the affirmative vote or
consent of four directors (i) any amendment to these by-laws, (ii) any change in
the person appointed as, or the compensation, authority or position of, the
Chief Executive Officer or the President, (iii) the issuance by the Corporation
of any securities or (iv) the approval or recommendation to shareholders of any
amendment to the Certificate of Incorporation of the Corporation. At any meeting
of the Board of Directors, business shall be transacted in such order and manner
it as the board may, from time to time determine.
SECTION 7. RESIGNATIONS. Any director, member of a committee or other
officer may resign at any time. Such
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resignation shall be made in writing, and shall take effect at the time
specified therein and if no time be specified, at the time of its receipt by the
President or Secretary. The acceptance of a resignation shall not be necessary
to make it effective.
SECTION 8. VACANCIES. If the office of any director, member of a
committee or other officer becomes vacant, the remaining directors in office
though less than a quorum by a majority vote, may appoint any qualified person
to fill such vacancy, who shall hold office for the unexpired term and until his
successor shall be duly chosen.
SECTION 9. REMOVAL. Any director or directors may be removed either for
or without cause at any time by the affirmative vote of the holders of a
majority of all the shares of stock outstanding and entitled to vote, at a
special meeting of the stockholders called for this purpose, or by written
consent as provided by law, and the vacancies thus created may be filled, at the
meeting held for the purpose of removal, or by written consent as provided by
law, by the affirmative vote of a majority in interest of the stockholders
entitled to vote; provided, however, that any director elected by the vote of
holder of Preferred Stock may be removed by the affirmative vote of the holders
of two-thirds of the outstanding Preferred Stock and any vacancy created by the
removal of such a director may be filled by the affirmative vote of the holders
of the outstanding Preferred Stock.
SECTION 10. INCREASE OF NUMBER. The number of directors may be
increased or decreased by amendment of these By-laws by the affirmative vote of
a majority of the directors, though less than a quorum, or, by the affirmative
vote of a majority in interest of the stockholders, at the annual meeting or at
a special meeting called for that purpose, and by like vote the additional
directors may be chosen at such meeting to hold office until the next annual
election and until their successors are elected and qualify.
SECTION 11. COMPENSATION. Directors shall not receive any stated salary
for their services as directors or as member of committees, but by resolution of
the board a fixed fee and expenses of attendance may be allowed for attendance
at each meeting. Nothing herein contained shall be construed to preclude any
director from serving the corporation in any other capacity as an officer, agent
or otherwise, and receiving compensation therefor.
SECTION 12. ACTION WITHOUT MEETING. Any action required or permitted to
be taken at any meeting of the Board of Directors, or of any committee thereof,
may be taken without a meeting, if prior to such action a written consent
thereto is
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signed by all members of the board, or of such committee as the case may be, and
such written consent is filed with the minutes of proceedings of the board or
committee.
SECTION 13. PRESUMPTION OF ASSENT. A director of the corporation who is
present at a meeting of the Board of Directors at which action on any corporate
matter is taken shall be conclusively presumed to have assented to the action
taken unless his dissent shall be entered in the minutes of the meeting or
unless he shall file his written dissent to such action with the person acting
as the secretary of the meeting before the adjournment thereof or shall forward
such dissent by registered mail to the secretary of the corporation immediately
after the adjournment of the meeting. Such right to dissent shall not apply to a
director who voted in favor of such action.
ARTICLE IV - OFFICERS
SECTION 1. OFFICERS. The officers of the corporation shall consist of a
Chief Executive Officer, a President, a Treasurer, and a Secretary, and shall be
elected by the Board of Directors and shall hold office until their successors
are elected and qualified. In addition, the Board of Directors may elect one or
more Vice-Presidents and such Assistant Secretaries and Assistant Treasurers at
it may deem proper. None of the officers of the corporation need be directors.
The officers shall be elected at the first meeting of the Board of Directors
after each annual meeting. More than two offices may be held by the same person.
SECTION 2. OTHER OFFICERS AND AGENTS. The Board of Directors may
appoint such officers and agents as it may deem advisable, who shall hold their
officers for such terms and shall exercise such power and perform such duties as
shall be determined from time to time by the Board of Directors.
SECTION 3. CHIEF EXECUTIVE OFFICER. The Chief Executive Officer shall
be the chief execute officer of the corporation and shall have the general
powers and duties of supervision and management usually vested in the chief
executive officer of a corporation. Except as limited or authorized in some
other manner by the Board of Directors, he shall have power to bind the
corporation and to sign all contracts and other instruments of the corporation.
He shall have general supervision and direction of all of the officers and
agents of the corporation and, except as provided by law, in these By-Laws or by
resolution of the Board of Directors, he shall appoint and remove, employ and
discharge, prescribe the duties and fix the compensation of all employees or
agents of the Corporation.
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SECTION 4. PRESIDENT. The President shall be the chief operating
officer of the corporation and shall have the general powers and duties to
perform or supervise all matters covering the operation of the corporation's
business and shall have such other powers and duties as may be designated by the
Board of Directors from time to time. Except as limited by the Board of
Directors, he shall have authority and power to bind the
Corporation and sign contracts and other instruments for the Corporation. He
shall preside over the day to day activities of the corporation and shall have
general supervision, direction and control for the business of the corporation.
In the absence or disability of the Chief Executive Officer, he shall perform
the duties and have the powers of the Chief Executive Officer.
SECTION 5. VICE-PRESIDENT. Each Vice-President shall have such powers
and shall perform such duties as shall be assigned to him by the directors.
SECTION 6. TREASURER. The Treasurer shall have the custody of the
corporate funds and securities and shall keep full and accurate account of
receipts and disbursements in books belonging to the corporation. He shall
deposit all moneys and other valuables in the name and to the credit of the
corporation in such depositories as may be designated by the Board of Directors.
The Treasurer shall disburse the funds of the corporation as may be
ordered by the Board of Directors, or the President, taking proper vouchers for
such disbursements. He shall render to the President and Board of Directors at
the regular meetings of the Board of Directors, or whenever they may request it,
an account of al his transactions as Treasurer and of the financial condition of
the corporation. If required by the Board of Directors, he shall give the
corporation a bond for the faithful discharge of his duties in such amount and
with such surety as the board shall prescribe.
SECTION 7. SECRETARY. The Secretary shall give, or cause to be given
notice of all meetings of stockholders and directors, and all other notices
required by law or by these ByLaws, and in case of his absence or refusal or
neglect so to do, any such notice may be given by any person thereunto directed
by the President, or by the directors, or stockholders, upon whose requisition
the meeting is called as provided in these By-laws. He shall record all the
proceedings of the meetings of the corporation and of directors in a book to be
kept for that purpose. He shall keep in safe custody the seal of the
corporation, and when authorized by the Board of Directors, affix the same to
any instrument requiring it, and when so affixed, it shall be attested by his
signature or by the signature of any assistant secretary.
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SECTION 8. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. Assistant
Treasurers and Assistant Secretaries, if any, shall be elected and shall have
such powers and shall perform such duties as shall be assigned to them,
respectively, by the directors.
SECTION 9. SALARIES. The salaries of the officers shall be fixed from
time to time by the Board of Directors and no officer shall be prevented form
receiving such salary by reason of the fact that he is also a director of the
corporation.
ARTICLE V.
SECTION 1. CERTIFICATES OF STOCK. Every holder of stock in the
corporation shall be entitled to have a certificate, signed by, or in the name
of the corporation by, the Board of Directors, or the president or a
vice-president and the treasurer or an assistant treasurer, or the secretary of
the corporation, certifying the number of shares owned by him in the
corporation. If the corporation shall be authorized to issue more than one class
of stock or more than one series of any class, the designations, preferences and
relative, participating, optional or other special rights of each class of stock
or series thereof and the qualifications, limitations, or restrictions of such
preferences and/or rights shall be set forth in full or summarized on the face
or back of the certificate which the corporation shall issue to represent such
class or series of stock provided that, except as otherwise provided in Section
202 of the General Corporation Law of Delaware, in lieu of the foregoing
requirements, there may be set forth on the face or back of the certificate
which the corporation shall issue to represent such class or series of stock, a
statement that the corporation will furnish without charge to each stockholder
who so requests the powers, designations, preferences and relative,
participating, optional or other special rights of each class of stock or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Where a certificate is countersigned (1) by a transfer agent
other than the corporation or its employee, or (2) by a registrar other than the
corporation or its employee, the signatures of such officers may be facsimiles.
SECTION 2. LOST CERTIFICATES. New certificates of stock may be issued
in the place of any certificate therefore issued by the corporation, alleged to
have been lost or destroyed, and the directors may, in their discretion, require
the owner of the lost or destroyed certificate or his legal representatives, to
give the corporation a bond, in such sum as they may direct, not exceeding
double the value of the stock, to indemnify the corporation against it on
account of the alleged loss of any such new certificate.
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SECTION 3. TRANSFER OF SHARES. The shares of stock of the corporation
shall be transferable only upon its books by the holders thereof in person or by
their duly authorized attorneys or legal representatives, and upon such transfer
the old certificates shall be surrendered to the corporation by the delivery
thereof to the person in charge of the stock and transfer books and ledgers, or
to such other persons as the
directors may designate, by who they shall be canceled, and new certificates
shall thereupon be issued. A record shall be made of such transfer and whenever
a transfer shall be made for collateral security, and not absolutely, it shall
be so expressed in the entry of the transfer.
SECTION 4. DIVIDENDS. Subject to the provisions of the Certificate of
Incorporation the Board of Directors may, out of funds legally available
therefore at any regular or special meeting, declare dividends upon the capital
stock of the corporation as and when they deem expedient. Before declaring any
dividends there may be set apart out of any funds of the corporation available
for dividends, such sum or sums as the directors from time to time in their
discretion deem proper working capital or as a reserve fund to meet
contingencies or for equalizing dividends or for such other purposes as the
directors shall deem conductive to the interests of the corporation.
SECTION 5. SEAL. The corporate seal shall be circular in form and shall
contain the name of the corporation, the year of its creation and the words
"CORPORATE SEAL DELAWARE." Said seal may be used by causing it or facsimile
thereof to be impressed or affixed or otherwise reproduced.
ARTICLE VI - FISCAL YEAR
SECTION 1. FISCAL YEAR. The fiscal year of the corporation shall be
determined by resolution of the Board of Directors.
ARTICLE VII - NOTICES
SECTION 1. NOTICES. Whenever notice is required to be give to any
stockholder, directors, officer or agent, such requirement shall not be
construed to mean personal notice. Such notice may in any instance be
effectively give by depositing a writing in a post office or letter box in a
prepaid, sealed wrapper, or by dispatching a prepaid telegram, addressed to such
stockholder, directors, officer or agent at his or her address as the same
appears on the books of the corporation. The time when such notice is dispatch
shall be the time of the given of the notice.
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SECTION 2. WAIVERS. A written waiver of any notice, signed by a
stockholder, director, officer, or agent, whether before or after the time of
the event for which notice is to be given, shall be deemed equivalent to the
notice required to be given to such stockholder, directors, officer or agent.
Neither the business nor the purpose of any meeting need to be specified in such
a waiver.
ARTICLE VIII - AMENDMENTS
Subject to the provisions of the Restated Certificate of Incorporation
under which the power to alter, amend or modify these By-Laws is restricted to
the holders of Preferred Stock, these By-Laws may be altered and repealed and
By-Laws may be made at any annual meeting of the stockholders or at any special
meeting thereof if notice thereof is contained in the notice of such special
meeting by the affirmative vote of a majority of the stock issued and
outstanding or entitled to vote thereat, or by the regular meeting of the Board
of Directors, at any regular meeting of the Board of Directors, or at any
special meeting of the Board of Directors, if notice thereof is contained in the
notice of such special meeting.
ARTICLE IX
INDEMNIFICATION OF OFFICERS
DIRECTORS, EMPLOYEES AND AGENTS
SECTION 1. The corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the corporation) by
reason of the fact that he is or was a director, officer, employee or agent of
the corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any 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 the person did not act in good faith and in a
manner which he reasonably believed
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to be in or not opposed to the best interests of the corporation, and with
respect to any criminal action or proceeding, had reasonable cause to believe
that his conduct was unlawful.
SECTION 2. The corporation shall have power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the corporation to procure a
judgment in its favor by reason of the fact that his is or was a director,
officer, employee or agent of the corporation, or is or was
serving at the request of the corporation as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and reasonably
incurred by him in connection with the defense or settlement of such action or
suit if he acted in good faith and in a manner he reasonably believed to be in
or not opposed to the best interests of the corporation 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 to the corporation,
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,
such person is fairly and reasonably entitled to indemnify for such expenses
which the Court of Chancery or such other court shall deem proper.
SECTION 3. No director of the corporation shall be liable to the
corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability for (a) any breach of the director's
duty of loyalty to the corporation or its stockholders; (b) acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law; (c) acts under Section 174 of the Delaware General Corporation Law; or
(d) any transaction from which the director derived an improper personal
benefit.
SECTION 4. Expenses incurred in defending a civil or criminal action,
suit or proceeding may be paid by the corporation in advance of the final
disposition of such action, suit or proceeding as authorized by the Board of
Directors in the specific case upon receipt of an undertaking by or on behalf of
the director or officer, to repay such amount unless it shall ultimately be
determined that he is not entitled to be indemnified by the corporation as
authorized in this Article Ninth. Such expenses (including attorneys' fees)
incurred by other employees or agents may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
SECTION 5. Any indemnification under Section 5 (1), (2) and (3) (unless
ordered by a Court) shall be made by the corporation only as authorized in the
specific case upon a
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determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because he has met the applicable standard of
conduct set forth in Sections (1), (2) and (3). Such determination shall be made
(a) by the Board of Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or proceeding, or (b) if
such a quorum is not obtainable, or, even if obtainable and a quorum of
disinterested directors so directs, by independent legal counsel in a written
opinion, or (c) by the stockholders.
SECTION 6. The indemnification provided by this Article Ninth shall not
be deemed exclusive of any other rights to which those seeking indemnification
or advancement of expenses may be entitled under any by-laws, agreement, vote of
stockholders or disinterested directors or otherwise, both as to action in
another capacity while holding such office, and shall continue as to a person
who has ceased to be a director, officer, employee or agent and shall inure to
the benefit of the heirs, executors and administrators of such a person.
SECTION 7. The corporation shall have power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the corporation or is or was serving at the request of the corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the corporation would have the power to indemnify him
against such liability under the provisions of this Article Ninth.
SECTION 8. For the purposes of this Article Ninth, reference to "the
corporation" shall include all constituent corporations absorbed in a
consolidation or merger as well as the resulting or surviving corporation so
that any person who is or was a director, officer, employee or agent of such a
constituent corporation or is or was serving at the request of such constituent
corporation, partnership, joint venture, trust or other enterprise shall stand
in the same position under the provisions of this section with respect to the
resulting or surviving corporation in the same capacity.