SECTION 1. OFFICES
The principal office of Too Gourmet, Inc., a Nevada
corporation ("Corporation") shall be located at the principal place of
business or such other place as the Board of Directors ("Board") may
designate. The Corporation may have such other offices, either within or
without the State of Nevada, as the Board may designate or as the business
of the Corporation may require from time to time.
SECTION 2. SHAREHOLDERS
2.1 Annual Meeting
The annual meeting of the shareholders shall be held the
first Friday of March in each year, or on such other day as shall be
fixed by resolution of the Board, at the principal office of the Corporation,
or such other place as fixed by the Board, for the purpose of electing
directors and transacting such other business as may properly come before
that meeting. If the day fixed for the annual meeting is a legal holiday at
the place of that meeting, that meeting shall be held on the next succeeding
business day.
2.2 Special Meetings
The Board, the President, or the Chairperson of the Board,
may call special meetings of the shareholders for any purpose. The holders of
not less than ten percent (10%) of all the outstanding shares of the
Corporation entitled to vote for or against any issue proposed to be
considered at the proposed special meeting, if they date, sign and deliver
to the Corporation's Secretary a written demand for a special meeting
specifying the purpose or purposes for which it is to be held, may call a
special meeting of the shareholders for such specified purpose.
2.3 Place of Meeting
All meetings shall be held at the principal office of the
Corporation, or at such other place as designated by the Board, by any
persons entitled to call a meeting pursuant to the bylaws, or in a waiver
of notice signed by all of the shareholders entitled to vote at that meeting.
2.4 Notice of Meeting
(a) The Corporation shall cause to be delivered to each
shareholder entitled to notice of, or to vote at, an annual or special
meeting of shareholders, either personally or by mail, not less than
ten (10) days nor more than sixty (60) days before that meeting, written
notice stating the date, time and place of that meeting and, in the case of a
special meeting, the purpose or purposes for which that meeting is called.
(b) Notice to a shareholder of an annual or special shareholders
meeting shall be in writing. Such notice, if in comprehensible form, is
effective (a) when mailed, if it is mailed postpaid and is correctly addressed
to that shareholder's address specified in the Corporation's then current
record of shareholders, or (b) when received by that shareholder, if it is
delivered by telegraph, facsimile transmission or private courier.
(c) If an annual or special shareholders meeting is adjourned to a
different date, time, or place, notice of the new date, time, or place shall
not be required if the new date, time, or place is announced at that meeting
before adjournment, unless a new record date for the adjourned meeting is,
or must be, fixed pursuant to (i) Section 2.6(a) of these bylaws or (ii) the
Nevada General Corporation Law.
2.5 Waiver of Notice
(a) Whenever any notice is required to be given to any
shareholder pursuant to the provisions of these bylaws, the Articles of
Incorporation or the Nevada General Corporation Law, a waiver thereof in
writing, signed by the person or persons entitled to such notice, whether
before or after the time specified in such notice, and delivered to the
Corporation for inclusion in the minutes for filing with the corporate
records, shall be deemed equivalent to the giving of such notice.
(b) The attendance of a shareholder at a meeting shall be a
waiver of each objection to lack of, or defect in, notice of such meeting
or of consideration of a particular matter at that meeting, unless that
shareholder, at the beginning of that meeting or prior to consideration of
such matter, objects to holding that meeting, transacting business at that
meeting, or considering the matter when presented at that meeting.
2.6 Fixing of Record Date for Determining Shareholders
(a) For the purpose of determining shareholders entitled to
notice of, or to vote at, any meeting of shareholders, or any adjournment
thereof, or shareholders entitled to receive payment of any dividend, or to
make a determination of shareholders for any other purpose, the Board may
fix in advance a date as the record date for any such determination. Such
record date shall be not more than seventy (70) days, and in case of a meeting
of shareholders, not less than ten (10) days, prior to the date on which the
particular action requiring such determination is to be taken. If no
record date is fixed for the determination of shareholders entitled to notice
of, or to vote at, a meeting, or to receive payment of a dividend, the date
on which the notice of meeting is mailed or on which the resolution of the
Board declaring such dividend is adopted, as the case may be, shall be the
record date for such determination. Such determination shall apply to any
adjournment of that meeting; provided, however, such adjournment is not set
for a date more than one hundred twenty (120) days after the date fixed for
the original meeting.
(b) The record date for the determination of shareholders entitled to
demand a special shareholders meeting shall be the date the first shareholder
signs the demand.
2.7 Shareholders' List
(a) Beginning two (2) business days after notice of a meeting of
shareholders is given, a complete alphabetical list of the shareholders
entitled to notice of that meeting shall be made, arranged by voting group,
and within each voting group by class or series, with the address of and
number of shares held by each shareholder. Such record shall be kept on file
at the Corporation's principal office or at a place identified in that meeting
notice in the city where the meeting will be held. On written demand, such
record shall be subject to inspection by any shareholder at any time during
normal business hours. Such record shall also be kept open at that meeting
for inspection by any shareholder.
(b) A shareholder may, on written demand, copy the shareholders'
list at such shareholder's expense during regular business hours;
provided, however, that:
(i) Such shareholder's demand is made in good faith
and for another purpose;
(ii) Such shareholder has described with reasonable
particularity such shareholder's purpose specified
in the written demand; and
(iii) The shareholders' list is directly related to such
shareholder's purpose.
2.8 Quorum
A majority of the votes entitled to be cast on a matter at a meeting
by a voting group, represented in person or by proxy, shall constitute a
quorum of that voting group for action on that matter at a meeting of the
shareholders. If a quorum is not present for a matter to be acted upon, a
majority of the shares represented at that meeting may adjourn that meeting
from time to time without additional notice. If the necessary quorum is
present or represented at a reconvened meeting following such an adjournment,
any business may be transacted that might have been transacted at the meeting
as originally called. The shareholders present at a duly organized meeting
may continue to transact business until adjournment, notwithstanding the
withdrawal of enough shareholders to leave less than a quorum.
2.9 Manner of Acting
(a) If a quorum exists, action on a matter (other than the election of
directors) by a voting group is approved if the votes cast within the voting
group favoring the action exceed the votes cast opposing the action, unless
the affirmative vote of a greater number is required by these bylaws, the
Articles of Incorporation or the Nevada General Corporation Law.
(b) If a matter is to be voted on by a single group, action on that
matter is taken when voted upon by that voting group. If a matter is to be
voted on by two (2) or more voting groups, action on that matter is taken
only when voted upon by each of those voting groups counted separately.
Action may be taken by one voting group on a matter even though no action
is taken by another voting group entitled to vote on such matter.
2.10 Proxies
A shareholder may vote by proxy executed in writing by that shareholder
or by his or her attorney-in-fact. Such proxy shall be effective when received
by the Secretary or other officer or agent authorized to tabulate votes at the
meeting. A proxy shall become invalid eleven (11) months after the date of its
execution, unless otherwise expressly provided in the proxy. A proxy for a
specified meeting shall entitle the holder thereof to vote at any adjournment
of that meeting, but shall not be valid after the final adjournment thereof.
2.11 Voting of Shares
Each outstanding share entitled to vote shall be entitled to one vote
upon each matter submitted to a vote at a meeting of shareholders.
2.12 Voting for Directors
Each shareholder may vote, in person or by proxy, the number of shares
owned by such shareholder that are entitled to vote at an election of
directors, for as many persons as there are directors to be elected and for
whose election such shares have a right to vote. Unless otherwise provided
in the Articles of Incorporation, directors are elected by a plurality of the
votes cast by shares entitled to vote in the election at a meeting at which a
quorum is present.
2.13 Voting of Shares by Corporations
2.13.1 Shares Held by Another Corporation
Shares standing in the name of another corporation may be
voted by such officer, agent or proxy as the bylaws of such other
corporation may prescribe, or, in the absence of such provision, as the
board of directors of such corporation may determine; provided,
however, such shares are not entitled to vote if the Corporation owns,
directly or indirectly, a majority of the shares entitled to vote for
directors of such other corporation.
2.13.2 Shares Held by the Corporation
Authorized but unissued shares shall not be voted or counted
for determining whether a quorum exists at any meeting or counted in
determining the total number of outstanding shares at any given time.
Notwithstanding the foregoing, shares of its own stock held by the
Corporation in a fiduciary capacity may be counted for purposes of
determining whether a quorum exists, and may be voted by the Corporation.
2.14 Acceptance or Rejection of Shareholder Votes, Consents, Waivers and
Proxy Appointments
2.14.1 Documents Bearing Name of Shareholders
If the name signed on a vote, consent, waiver or proxy
appointment corresponds to the name of a shareholder, the Secretary or
other agent authorized to tabulate votes at the meeting may, if acting
in good faith, accept such vote, consent, waiver or proxy appointment
and give it effect as the act of the shareholder.
2.14.2 Documents Bearing Name of Third Parties
If the name signed on a vote, consent, waiver or proxy
appointment does not correspond to the name of its shareholder, the
Secretary or other agent authorized to tabulate votes at the meeting
may nevertheless, if acting in good faith, accept such vote, consent,
waiver or proxy appointment and give it effect as the act of the
shareholder if:
(a) The shareholder is an entity and the name signed
purports to be that of an officer or an agent of that entity;
(b) The name signed purports to be that of an
administrator, executor, guardian or conservator representing
the shareholder and, if the Secretary or other agent requests,
acceptable evidence of fiduciary status has been presented;
(c) The name signed purports to be that of a receiver
or trustee in bankruptcy of the shareholder, and, if the
Secretary or other agent requests, acceptable evidence of this
status has been presented;
(d) The name signed purports to be that of a pledgee,
beneficial owner or attorney-in-fact of the shareholder and,
if the Secretary or other agent requests, acceptable evidence
of the signatory's authority to sign has been presented; or
(e) Two or more persons are the shareholder as
co-owners or fiduciaries and the name signed purports to be
the name of at least one of the co-owners and the person
signing appears to be acting on behalf of all co-owners.
2.14.3 Rejection of Documents
The Secretary or other agent authorized to tabulate votes at
the meeting is entitled to reject a vote, consent, waiver or proxy
appointment if such agent, acting in good faith, has reasonable basis
for doubt about the validity of the signature on it or about the
signatory's authority to sign for the shareholder.
SECTION 3. BOARD OF DIRECTORS
3.1 General Powers
The business and affairs of the Corporation shall be managed by the
Board, except as may be otherwise provided in these Bylaws, the Articles of
Incorporation or the Nevada General Corporation Law.
3.2 Number, Tenure and Qualifications
The Board of Directors shall consist of no less than one (1) and no
more than fifteen (15) Directors, the specific number to be set by resolution
of the Board of Directors. The number of directors may be changed from
time to time by amendment to these Bylaws, but no decrease in the number of
directors shall shorten the term of any incumbent director. The terms of the
directors expire at the next annual shareholder's meeting following their
election. Despite the expiration of a director's term, however, the director
shall continue to serve until such director's successor is elected and
qualifies or until there is a decrease in the number of directors. Directors
need not be shareholders of the Corporation or residents of the State of
Nevada.
3.3 Annual and Regular Meetings
An annual meeting of the Board of Directors shall be held without
additional notice immediately after and at the same place as the annual
meeting of shareholders.
By resolution the Board of Directors, or any committee thereof, may
specify the time and place for holding regular meetings thereof without other
notice than such resolution.
3.4 Special Meetings
Special meetings of the Board of Directors or any committee designated
by the Board of Directors may be called by or at the request of the Chair of
the Board of Directors, or the President or any director and, in the case
of any special meeting of any committee designated by the Board of Directors,
by the Chair thereof. The person or persons authorized to call special
meetings may fix any place either within or without the State of Nevada as
the place for holding any special Board or committee meeting called by them.
3.5 Meetings by Telecommunications
Members of the Board of Directors or any committee designated by the
Board of Directors may participate in a meeting of the Board of Directors or
such committee by use of any means of telecommunications equipment pursuant to
which all persons participating may simultaneously hear each other during such
meeting. Participation by such method shall be deemed presence in person at
such meeting.
3.6 Notice of Special Meetings
Notice of a special Board of Directors or committee meeting specifying
the date, time and place of such meeting shall be given to a director in
writing or orally by telephone or in person as specified below. Neither the
business to be transacted at, nor the purpose of, any special meeting need be
specified in the notice of such meeting.
3.6.1 Personal Delivery
If delivery is by personal service, the notice shall be
effective if delivered at the address specified on the records of the
Corporation at least one day before the meeting.
3.6.2 Delivery by Mail
If notice is delivered by mail, the notice shall be deemed
effective if deposited in the official government mail at least five
(5) days before the meeting properly addressed to a director at his or
her address specified on the records of the Corporation with postage
prepaid.
3.6.3 Delivery by Telegraph
If notice is delivered by telegraph, the notice shall be
deemed effective if the content thereof is delivered to the telegraph
company by such time that the telegraph company guarantees delivery at
least one day before the meeting.
3.6.4 Oral Notice
If notice is delivered orally, by telephone or in person, the
notice shall be effective if personally given to a director at least
one day before the meeting.
3.6.5 Notice by Facsimile Transmission
If notice is delivered by facsimile transmission, the notice
shall be deemed effective if the content thereof is transmitted to the
office of a director, at the facsimile number specified on the records
of the Corporation, at least one day before the meeting, and receipt is
either confirmed by confirming transmission equipment or acknowledged
by the receiving office.
3.6.6 Notice by Private Courier
If notice is delivered by private courier, the notice shall be
deemed effective if delivered to the courier, properly addressed and
prepaid, by such time that the courier guarantees delivery at least one
day before the meeting.
3.7 Waiver of Notice
3.7.1 Written Waiver
Whenever any notice is required to be given to any director
pursuant to the provisions of these Bylaws, the Articles of
Incorporation or the Nevada General Corporation Law, a waiver thereof
in writing, executed at any time, specifying the meeting for which
notice is waived, signed by the person or persons entitled to such
notice, and filed with the minutes or corporate records, shall be
deemed equivalent to the giving of such notice.
3.7.2 Waiver by Attendance
The attendance of a director at a Board of Directors or
committee meeting shall constitute a waiver of notice of such meeting,
unless such director, at the beginning of the meeting, or promptly upon
such director's arrival, objects to holding the meeting or transacting
any business at the meeting and does not thereafter vote for or assent
to action taken at the meeting.
3.8 Quorum
A majority of the number of directors determined by or in the manner
provided by these Bylaws shall constitute a quorum for the transaction of
business at any Board of Directors meeting.
3.9 Manner of Acting
The act of the majority of the directors present at a Board of
Directors or committee meeting at which there is a quorum shall be the act
of the Board of Directors or committee, unless the vote of a greater
number is required by these Bylaws, the Articles of Incorporation or the
Nevada General Corporation Law.
3.10 Presumption of Assent
A director of the Corporation present at a Board of Directors or
committee meeting at which action on any corporate matter is taken shall be
deemed to have assented to the action taken unless such director objects at
the beginning of the meeting, or promptly upon such director's arrival,
to holding the meeting or transacting business at the meeting; or such
director's dissent is entered in the minutes of the meeting; or such director
delivers a written notice of dissent or abstention to such action with the
presiding officer of the meeting before the adjournment thereof; or such
director forwards such notice by registered mail to the Secretary of the
Corporation immediately after the adjournment of the meeting. A director
who voted in favor of such action may not thereafter dissent or abstain.
3.11 Action by Board of Directors or Committee Without a Meeting
Any action which could be taken at a meeting of the Board of Directors
or of any committee appointed by the Board of Directors may be taken without
a meeting, if a written consent setting forth the action so taken is signed by
each Director or by each committee member. The action shall be effective when
the last signature is placed on the consent, unless the consent specifies an
earlier or later date. Such written consent, which shall have the same effect
as a unanimous vote of the directors or such committee, shall be inserted in
the minute book as if it were the minutes of a Board of Directors or
committee meeting.
3.12 Resignation
Any director may resign at any time by delivering written notice to the
Chair of the Board of Directors, the Board of Directors, or to the registered
office of the Corporation. Such resignation shall take effect at the time
specified in the notice, or if no time is specified, upon delivery. Unless
otherwise specified therein, the acceptance of such resignation shall not be
necessary to make it effective. Once delivered, a notice of resignation is
irrevocable unless revocation is permitted by the Board of Directors.
3.13 Removal
One or more members of the Board of Directors (including the entire
Board of Directors) may be removed at a meeting of shareholders called
expressly for that purpose, provided that the notice of such meeting
states that the purpose, or one of the purposes, of the meeting is such
removal. A member of the Board of Directors may be removed with or without
cause, unless the Articles of Incorporation permit removal for cause only,
by a vote of the holders of a majority of the shares then entitled to vote
on the election of the director. A director may be removed only if the
number of votes cast to remove the director exceeds the number of votes
cast to not remove the director. If a director is elected by a voting group
of shareholders, only the shareholders of that voting group may participate
in the vote to remove such director.
3.14 Vacancies
Any vacancy occurring on the Board of Directors, including a vacancy
resulting from an increase in the number of directors, may be filled by the
shareholders, by the Board of Directors, by the affirmative vote of a majority
of the remaining directors though less than a quorum of the Board of Directors,
or by a sole remaining director. A director elected to fill a vacancy shall be
elected for the unexpired term of his or her predecessor in office; except
that the term of a director elected by the Board of Directors to fill a
vacancy expires at the next shareholders' meeting at which directors are
elected. Any directorship to be filled by reason of an increase in the number
of directors may be filled by the affirmative vote of a majority of the number
of directors fixed by the Bylaws prior to such increase for a term of office
continuing only until the next election of directors by the shareholders. Any
directorship not so filled by the directors shall be filled by election at
the next annual meeting of shareholders or at a special meeting of
shareholders called for that purpose. If the vacant directorship is filled
by the shareholders and was held by a director elected by a voting group of
shareholders, then only the holders of shares of that voting group are
entitled to vote to fill such vacancy. A vacancy that will occur at a
specific later date by reason of a resignation effective at such later date
or otherwise may be filled before the vacancy occurs, but the new director
may not take office until the vacancy occurs.
3.15 Minutes
The Board of Directors shall keep minutes of its meetings and shall
cause them to be recorded in books kept for that purpose.
3.16 Executive and Other Committees
3.16.1 Creation of Committees
The Board of Directors, by resolution adopted by a majority of
the number of Directors fixed in the manner provided by these Bylaws,
may appoint standing or temporary committees, including an Executive
Committee, from its own number. The Board of Directors may invest such
committee(s) with such powers as it may see fit, subject to such
conditions as may be prescribed by the Board of Directors, these
Bylaws, the Articles of Incorporation and the Nevada General
Corporation Law.
3.16.2 Authority of Committees
Each committee shall have and may exercise all of the
authority of the Board of Directors to the extent provided in the
resolution of the Board of Directors designating the committee and any
subsequent resolutions pertaining thereto and adopted in like manner,
except that no such committee shall have the authority to (a) authorize
distributions, except as may be permitted by Section 3.16.2 (g) of
these Bylaws; (b) approve or propose to shareholders actions required
by the Nevada General Corporation Law to be approved by shareholders;
(c) fill vacancies on the Board of Directors or any committee thereof;
(d) adopt, amend or repeal these Bylaws; (e) amend the Certificate of
Incorporation; (f) approve a plan of merger not requiring shareholder
approval; or (g) authorize or approve reacquisition of shares, except
within limits prescribed by the Board of Directors.
3.16.3 Quorum and Manner of Acting
A majority of the number of Directors composing any committee
of the Board of Directors, as established and fixed by resolution of
the Board of Directors, shall constitute a quorum for the transaction
of business at any meeting of such committee.
3.16.4 Minutes of Meetings
All committees so appointed shall keep regular minutes of their
meetings and shall cause them to be recorded in books kept for
that purpose.
3.16.5 Resignation
Any member of any committee may resign at any time by
delivering written notice thereof to the Board of Directors, the Chair
of the Board of Directors or the Corporation. Any such resignation
shall take effect at the time specified in the notice, or if no time is
specified, upon delivery. Unless otherwise specified therein, the
acceptance of such resignation shall not be necessary to make it
effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board of Directors.
3.16.6 Removal
The Board of Directors may remove from office any member of
any committee elected or appointed by it, but only by the affirmative
vote of not less than a majority of the number of directors fixed by or
in the manner provided by these Bylaws.
3.17 Compensation
By Board of Directors resolution, directors and committee members may
be paid their expenses, if any, of attendance at each Board of Directors or
committee meeting, or a fixed sum for attendance at each Board of
Directors or committee meeting, or a staled salary as director or a committee
member, or a combination of the foregoing. No such payment shall preclude any
director or committee member from serving the Corporation in any other
capacity and receiving compensation therefor.
SECTION 4. OFFICERS
4.1 Number
The Officers of the Corporation shall be a President and a Secretary,
each of whom shall be appointed by the Board of Directors. One or more Vice
Presidents, a Treasurer and such other Officers and assistant Officers,
including a Chair of the Board of Directors, may be appointed by the Board of
Directors; such officers and assistant officers to hold office for such
period, have such authority and perform such duties as are provided in these
Bylaws or as may be provided by resolution of the Board of Directors. Any
Officer may be assigned by the Board of Directors any additional title that
the Board of Directors deems appropriate. The Board of Directors may delegate
to any officer or agent the power to appoint any such subordinate officers or
agents and to prescribe their respective terms of office, authority and
duties. Any two or more offices may be held by the same person.
4.2 Appointment and Term of Office
The officers of the Corporation shall be appointed annually by the
Board of Directors at the Board of Directors meeting held after the annual
meeting of the shareholders. If the appointment of officers is not made at
such meeting, such appointment shall be made as soon thereafter as a Board
of Directors meeting conveniently may be held. Unless an officer dies,
resigns, or is removed from office, he or she shall hold office until the
next annual meeting of the Board of Directors or until his or her successor
is appointed.
4.3 Resignation
Any officer may resign at any time by delivering written notice to the
Corporation. Any such resignation shall take effect at the time specified in
the notice, or if no time is specified, upon delivery. Unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective. Once delivered, a notice of resignation is irrevocable
unless revocation is permitted by the Board of Directors.
4.4 Removal
Any officer or agent appointed by the Board of Directors may be removed
by the Board of Directors, with or without cause, but such removal shall be
without prejudice to the contract rights, if any, of the person so removed.
Appointment of an officer or agent shall not of itself create contract rights.
4.5 Vacancies
A vacancy in any office because of death, resignation, removal,
disqualification, creation of a new office or any other cause may be filled by
the Board of Directors for the unexpired portion of the term, or for
a new term established by the Board of Directors. If a resignation is made
effective at a later date, and the Corporation accepts such future effective
date, the Board of Directors may fill the pending vacancy before the
effective date, if the Board of Directors provides that the successor does
not take office until the effective date.
4.6 Chair of the Board of Directors
If appointed, the Chair of the Board of Directors shall perform such
duties as shall be assigned to him or her by the Board of Directors from
time to time and shall preside over meetings of the Board of Directors and
shareholders unless another officer is appointed or designated by the Board
of Directors as Chair of such meeting.
4.7 President
The President shall be the chief executive officer of the Corporation
unless some other Officer is so designated by the Board of Directors, shall
preside over meetings of the Board of Directors and shareholders in the
absence of a Chair of the Board of Directors and, subject to the Board of
Directors' control, shall supervise and control all of the assets, business
and affairs of the Corporation. The President shall have authority to sign
deeds, mortgages, bonds, contracts, or other instruments, except when the
signing and execution thereof have been expressly delegated by the Board of
Directors or by these Bylaws to some other officer or agent of the
Corporation, or are required by law to be otherwise signed or executed by
some other officer or in some other manner. In general, the President shall
perform all duties incident to the office of President and such other duties
as are prescribed by the Board of Directors from time to time.
4.8 Vice President
In the event of the death of the President or his or her inability to
act, the Vice President (or if there is more than one Vice President, the Vice
President who was designated by the Board of Directors as the successor to the
President, or if no Vice President is so designated, the Vice President first
appointed to such office) shall perform the duties of the President, except as
may be limited by resolution of the Board of Directors, with all the powers of
and subject to all the restrictions upon the President. Vice Presidents shall
have, to the extent authorized by the President or the Board of Directors, the
same powers as the President to sign deeds, mortgages, bonds, contracts or
other instruments. Vice Presidents shall perform such other duties as from
time to time may be assigned to them by the President or by the Board of
Directors.
4.9 Secretary
The Secretary shall (a) prepare and keep the minutes of meetings of the
shareholders and the Board of Directors in one or more books provided for that
purpose; (b) see that all notices are duly given in accordance with the
provisions of these Bylaws or as required by law; (c) be responsible for
custody of the corporate records and seal of the corporation; (d) keep
registers of the post office address of each shareholder and Director;
(e) have general charge of the stock transfer books of the Corporation;
and (f) in general perform all duties incident to the office of Secretary
and such other duties as from time to time may be assigned to him or her by
the President or by the Board of Directors. In the absence of the Secretary,
an Assistant Secretary may perform the duties of the Secretary.
4.10 Treasurer
If required by the Board of Directors, the Treasurer shall give a bond
for the faithful discharge of his or her duties in such amount and with such
surety or sureties as the Board of Directors shall determine. The Treasurer
shall have charge and custody of and be responsible for all funds and
securities of the Corporation; receive and give receipts for moneys due and
payable to the Corporation from any source whatsoever, and deposit all such
moneys in the name of the Corporation in banks, trust companies or other
depositories selected in accordance with the provisions of these Bylaws; and
in general perform all of the duties incident to the office of Treasurer and
such other duties as from time to time may be assigned to him or her by the
President or by the Board of Directors. In the absence of the Treasurer, an
Assistant Treasurer may perform the duties of the Treasurer.
4.11 Salaries
The salaries of the Officers shall be fixed from time to time by the
Board of Directors or by any person or persons to whom the Board of Directors
has delegated such authority. No officer shall be prevented from receiving
such salary by reason of the fact that he or she is also a Director of the
Corporation.
SECTION 5. CONTRACTS, LOANS,
CHECKS AND DEPOSITS
5.1 Contracts
The Board of Directors may authorize any Officer or Officers, or agent
or agents, to enter into any contract or execute and deliver any instrument in
the name of and on behalf of the Corporation. Such authority may be general or
confined to specific instances.
5.2 Loans to the Corporation
No loans shall be contracted on behalf of the Corporation and no
evidences of indebtedness shall be issued in its name unless authorized by a
resolution of the Board of Directors. Such authority may be general or
confined to specific instances.
5.3 Loans to Directors
The Corporation shall not lend money to or guarantee the obligation of
a Director unless (a) the particular loan or guarantee is approved by a
majority of the votes represented by the outstanding voting shares of all
classes, voting as a single voting group, excluding the votes of the shares
owned by or voted under the control of the benefitted director; or (b) the
Board of Directors determines that the loan or guarantee benefits the
Corporation and either approves the specific loan or guarantee or a general
plan authorizing the loans and guarantees. The fact that a loan or guarantee
is made in violation of this provision shall not affect the borrower's
liability on the loan.
5.4 Checks, Drafts, Etc.
All checks, drafts or other orders for the payment of money, notes or
other evidences of indebtedness issued in the name of the Corporation shall
be signed by such officer or officers, or agent or agents, of the Corporation
and in such manner as is from time to time determined by resolution of the
Board of Directors.
5.5 Deposits
All funds of the Corporation not otherwise employed shall be deposited
from time to time to the credit of the Corporation in such banks, trust
companies or other depositories as the Board of Directors may select.
SECTION 6. CERTIFICATES FOR SHARES
AND THEIR TRANSFER
6.1 Issuance of Shares
No shares of the Corporation shall be issued unless authorized by the
Board of Directors, which authorization shall include the maximum number of
shares to be issued and the consideration to be received for each share.
Before the Corporation issues shares, the Board of Directors shall determine
that the consideration received or to be received for such shares is adequate.
Such determination by the Board of Directors shall be conclusive insofar as
the adequacy of consideration for the issuance of shares relates to whether
the shares are validly issued, fully paid and nonassessable.
6.2 Escrow for Shares
The Board of Directors may authorize the placement in escrow of shares
issued for a contract for future services or benefits or a promissory note,
or may authorize other arrangements to restrict the transfer of shares, and
may authorize the crediting of distributions in respect of such shares
against their purchase price, until the services are performed, the note is
paid or the benefits received. If the services are not performed, the note
is not paid, or the benefits are not received, the Board of Directors may
cancel, in whole or in part, such shares placed in escrow or restricted
and such distributions credited.
6.3 Certificates for Shares
Certificates representing shares of the Corporation shall be in such
form as shall be determined by the Board of Directors Such certificates shall
be signed by any two of the following officers: the Chair of the Board of
Directors, the President, any Vice President, the Treasurer, the Secretary or
any Assistant Secretary. Any or all of the signatures on a certificate may be
facsimiles if the certificate is manually signed on behalf of a transfer agent
or a registrar other than the Corporation itself or an employee of the
Corporation. All certificates shall be consecutively numbered or otherwise
identified.
6.4 Stock Records
The stock transfer books shall be kept at the registered office or
principal place of business of the Corporation or at the office of the
Corporation's transfer agent or registrar. The name and address of each person
to whom certificates for shares are issued, together with the class and number
of shares represented by each such certificate and the date of issue thereof,
shall be entered on the stock transfer books of the Corporation. The person in
whose name shares stand on the books of the Corporation shall be deemed by the
Corporation to be the owner thereof for all purposes.
6.5 Restriction on Transfer
6.5.1 Securities Laws
Except to the extent that the Corporation has obtained an
opinion of counsel acceptable to the Corporation that transfer
restrictions are not required under applicable securities laws, or has
otherwise satisfied itself that such transfer restrictions are not
required, all certificates representing shares of the Corporation shall
bear conspicuously on the front or back of the certificate a legend or
legends describing the restriction or restrictions.
6.5.2 Other Restrictions
In addition, the front or back of all certificates shall
include conspicuous written notice of any further restrictions which
may be imposed on the transferability of such shares.
6.6 Transfer of Shares
Transfer of shares of the Corporation shall be made only on the stock
transfer books of the Corporation pursuant to authorization or document of
transfer made by the holder of record thereof or by his or her legal
representative, who shall furnish proper evidence of authority to transfer,
or by his or her attorney-in-fact authorized by power of attorney duly
executed and filed with the Secretary of the Corporation. All certificates
surrendered to the Corporation for transfer shall be cancelled and no new
certificate shall be issued until the former certificates for a like number
of shares shall have been surrendered and cancelled.
6.7 Lost or Destroyed Certificates
In the case of a lost, destroyed or mutilated certificate, a new
certificate may be issued therefor upon such terms and indemnity to the
Corporation as the Board of Directors may prescribe.
6.8 Transfer Agent and Registrar
The Board of Directors may from time to time appoint one or more
Transfer Agents and one or more Registrars for the shares of the Corporation,
with such powers and duties as the Board of Directors shall determine by
resolution.
6.9 Officer Ceasing to Act
In case any officer who has signed or whose facsimile signature has
been placed upon a stock certificate shall have ceased to be such officer
before such certificate is issued, it may be issued by the Corporation with
the same effect as if the signer were such officer at the date of its
issuance.
6.10 Fractional Shares
The Corporation shall not issue certificates for fractional shares.
SECTION 7. BOOKS AND RECORDS
The Corporation shall keep correct and complete books and records of
account, stock transfer books, minutes of the proceedings of its shareholders
and Board of Directors and such other records as may be necessary or
advisable.
SECTION 8. FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year;
provided, however, that the Board of Directors may select a different fiscal
year at any time for purposes of federal income taxes, or otherwise.
SECTION 9. SEAL
The seal of the Corporation, if any, shall consist of the name of the
Corporation and the state of its incorporation
SECTION 10. INDEMNIFICATION
10.1 Right to Indemnification of Directors and Officers
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereafter a "proceeding"),
by reason of the fact that he or she is or was a director or officer of the
Corporation or is or was serving at the request of the Corporation as a
director or officer of another corporation or of a partnership, joint
venture, trust or other enterprise, including service with respect to an
employee benefit plan hereinafter an "indemnitee"), whether the basis of
such proceeding is alleged action in an official capacity as a director or
officer or in any other capacity while serving as a director or officer shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the Nevada General Corporation Law, as the same exists or may
hereafter be amended, (but, in the case of any such amendment, only to the
extent that such amendment permits the Corporation to provide broader
indemnification rights than permitted prior thereto), against all expense,
liability and loss (including attorney's fees, judgments, fines, ERISA excise
taxes or penalties and amounts paid insettlement) reasonably incurred or
suffered by such indemnitee in connectiontherewith and such indemnification
shall continue as to an indemnitee who has ceased to be a director or
officer and shall inure to the benefit of the indemnitee's heirs, executors
and administrators; provided, however, that, except as provided in
Section 10.3 of these Bylaws or with respect to proceedings to enforce rights
to indemnification, the Corporation shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
10.2 Right to Advancement of Expenses
The right to indemnification conferred in Section 10.1 of these Bylaws
shall include the right to be paid by the Corporation the expenses incurred
in defending any proceeding for which such right to indemnification is
applicable in advance of its final disposition (hereinafter an "advancement
of expenses"); provided, however, that, if the Nevada General Corporation
Law requires, an advancement of expenses incurred by an indemnitee in his or
her capacity as a director or officer (and not in any other capacity in which
service was or is rendered by such indemnitee, including, without limitation,
service to an employee benefit plan) shall be made only upon delivery to the
Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf
of such indemnitee, to repay all amounts so advanced if it shall ultimately
be determined by final judicial decision from which there is no further
right to appeal (hereinafter a "final adjudication") that such indemnitee
is not entitled to be indemnified for such expenses under this section or
otherwise.
10.3 Right of Indemnitee to Bring Suit
The rights to indemnification and to the advancement of expenses
conferred in Sections 10.1 and 10.2 of these Bylaws shall be contract rights.
If a claim under Sections 10.1 and 10.2 of these Bylaws is not paid in full
by the Corporation within sixty (60) days after a written claim has been
received by the Corporation, except in the case of a claim for an advancement
of expenses, in which case the applicable period shall be twenty (20) days,
the indemnitee may at any time thereafter bring suit against the Corporation
to recover an advancement of expenses pursuant to the terms of an undertaking,
the indemnitee shall be entitled to be paid also the expense of prosecuting
or defending such suit. In (i) any suit brought by the indemnitee to enforce
a right toindemnification hereunder (but not in a suit brought by the
indemnitee toenforce a right to an advancement of expenses) it shall be a
defense that, and(ii) in any suit by the Corporation to recover an advancement
of expensespursuant to the terms of an undertaking the Corporation shall be
entitled torecover such expenses upon a final adjudication that, the
indemnitee has not metany applicable standard for indemnification set forth
in the Nevada GeneralCorporation Law. Neither the failure of the Corporation
(including its board ofdirectors, independent legal counsel, or its
stockholders) to have made adetermination prior to the commencement of such
suit that indemnification of theindemnitee is proper in the circumstances
because the indemnitee has met theapplicable standard of conduct set forth in
Nevada General Corporation Law, noran actual determination by the Corporation
(including its board of directors, independent legal counsel, or its
stockholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee
to enforce a right to indemnification or to an advancement of expenses
hereunder, or by the Corporation to recover an advancement of expenses
pursuant to the terms of an undertaking, the burden of proving that the
indemnitee is not entitled to be indemnified, or to such advancement of
expenses, under this section or otherwise shall be on the Corporation.
10.4 Non-Exclusivity of Rights
The rights to indemnification and to the advancement of expenses
conferred in this article shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, the Corporation's
certificate of incorporation, bylaw, agreement, vote of stockholders or
disinterested directors or otherwise.
10.5 Insurance
The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or
loss under the Nevada General Corporation Law.
10.6 Indemnification of Employees and Agents of the Corporation
The Corporation may, to the extent authorized from time to time by the
board of directors, grant rights to indemnification, and to the advancement of
expenses to any employee or agent of the Corporation to the fullest extent of
the provisions of this article with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
10.7 No Presumption of Bad Faith
The termination of any 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 the person reasonably believed to be in or not opposed to the
best interests of this Corporation, or, with respect to any criminal
proceeding, that the person had reasonable cause to believe that the
conduct was unlawful.
10.8 Survival of Rights
The rights conferred on any person by this Bylaw shall continue as to a
person who has ceased to be a director, officer, employee or other agent and
shall inure to the benefit of the heirs, executors and administrators of such
a person.
10.9 Amendments to Law
For purposes of this Bylaw, the meaning of "law" within the phrase "to
the fullest extent not prohibited by law" shall include, but not be limited
to, the Nevada General Corporation Law, as the same exists on the date hereof
or as it may be amended; provided, however, that in the case of any such
amendment, such amendment shall apply only to the extent that it permits the
Corporation to provide broader indemnification rights than the Act permitted
the Corporation to provide prior to such amendment.
10.10 Savings Clause
If this Bylaw or any portion hereof shall be invalidated on any ground
by any court of competent jurisdiction, the Corporation shall indemnify each
director, [officer or other agent] to the fullest extent permitted by any
applicable portion of this Bylaw that shall not have been invalidated, or by
any other applicable law.
10.11 Certain Definitions
For the purposes of this Section, the following definitions shall apply:
(a) The term "proceeding" shall be broadly construed and shall include,
without limitation, the investigation, preparation, prosecution, defense,
settlement and appeal of any threatened, pending or completed action, suit or
proceeding, whether brought in the right of the Corporation or otherwise and
whether civil, criminal, administrative or investigative, in which the
director or officer may be or may have been involved as a party or otherwise
by reason of the fact that the director or officer is or was a director or
officer of the Corporation or is or was serving at the request of the
Corporation as a director or officer of another corporation, partnership,
joint venture, trust or other enterprise.
(b) The term "expenses" shall be broadly construed and shall include,
without limitation, all costs, charges and expenses (including fees and
disbursements of attorneys, accountants and other experts) actually and
reasonably incurred by a director or officer in connection with any
proceeding, all expenses of investigations, judicial or administrative
proceedings or appeals, and any expenses of establishing a right to
indemnification under these Bylaws, but shall not include amounts paid in
settlement, judgments or fines.
(c) "Corporation" shall mean Too Gourmet, Inc. and any successor
corporation thereof.
(d) Reference to a "director" or "officer" of the Corporation shall
include, without limitation, situations where such person is serving at the
request of the Corporation as a director or officer of another corporation,
partnership, joint venture, trust or other enterprise.
(e) References to "other enterprises" shall include employee benefit
plans. References to "fines" shall include any excise taxes assessed on a
person with respect to any employee benefit plan. References to "serving at
the request of the Corporation" shall include any service as a director,
officer, employee or agent of the Corporation which imposes duties on, or
involves services by, such director, officer, employee or agent with
respect to an employee benefit plan, its participants, or beneficiaries.
A person who acted in good faith and in a manner the person reasonably
believed to be in the interest of the participants and beneficiaries of
an employee benefit plan shall be deemed to have acted in a manner "not
opposed to the best interests of the Corporation" as referred to in this
Bylaw.
SECTION 11. AMENDMENTS
These Bylaws may be altered, amended or repealed and new Bylaws may be
adopted by the Board of Directors at any regular or special meeting of the
Board of Directors; provided, however, that the shareholders, in amending or
repealing a particular Bylaw, may provide expressly that the Board of
Directors may not amend or repeal that Bylaw. The shareholders may also make,
alter, amend and repeal the Bylaws of the Corporation at any annual meeting
or at a special meeting called for that purpose. All Bylaws made by the
Board of Directors may be amended, repealed, altered or modified by the
shareholders at any regular or special meeting called for that purpose.
The foregoing Bylaws were adopted by the Board of Directors of the
Corporation on April 10, 2001.
/s/ Cynthia Bergendahl
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Cynthia Bergendahl, Secretary