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Exhibit 3.2
CODE OF REGULATIONS
OF
CIAO CUCINA CORPORATION
ARTICLE I
Shareholders
Section 1. Annual Meetings.
The Annual Meeting of the shareholders of this Corporation, for the
election of the Board of Directors and the transaction of such other business as
may properly be brought before such meeting, shall be held at the time, date and
place designated by the Board of Directors or, if it shall so determine, by the
Chairman of the Board or the President. If the Annual Meeting is not held or if
Directors are not elected thereat, a Special Meeting may be called and held for
that purpose.
Section 2. Special Meetings.
Special meetings of the shareholders may be held on any business day
when called by the Chairman of the Board, the President, a majority of Directors
or persons holding fifty percent of all voting power of the Corporation and
entitled to vote at such meeting.
Section 3. Place of Meetings.
Any meeting of shareholders may be held at such place within or without
the State of Ohio as may be designated in the Notice of said meeting.
Section 4. Notice of Meeting and Waiver of Notice
4.1 Notice. Written notice of the time, place and purposes of any
meeting of shareholders shall be given to each shareholder entitled thereto
not less than seven (7) days nor more than sixty (60) days before the date
fixed for the meeting and as prescribed by law. Such notice shall be given
either by personal delivery or mail to the shareholders at their respective
addresses as they appear on the records of the Corporation. Notice shall be
deemed to have been given on the day mailed. If any meeting is adjourned to
another time or place, no notice as to such adjourned meeting need be given
other than by announcement at the meeting at which such an adjournment is
taken. No business shall be transacted at any such adjourned meeting except as
might have been lawfully transacted at the meeting at which such adjournment
was taken.
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4.2 Notice to Joint Owners. All notices with respect to any shares
to which persons are entitled by joint or common ownership may be given to
that one of such persons who is named first upon the books of this
Corporation, and notice so given shall be sufficient notice to all the holders
of such shares.
4.3 Waiver. Notice of any meeting may be waived in writing by any
shareholder either before or after any meeting, or by attendance at such
meeting without protest to its commencement.
Section 5. Shareholders Entitled to Notice and to Vote.
If a record date shall not be fixed, the record date for the
determination of shareholders entitled to notice of or to vote at any meeting of
shareholders shall be the date next preceding the day on which notice is given,
or the date next preceding the day on which the meeting is held, as the case may
be.
Section 6. Quorum and Voting.
The holders of shares entitling them to exercise a majority of the
voting power of the Corporation, present in person or by proxy, shall constitute
a quorum for any meeting. The shareholders present in person or by proxy,
whether or not a quorum be present, may adjourn the meeting from time to time
without notice other than by announcement at the meeting.
In any other matter brought before any meeting of shareholders, the
affirmative vote of the holders of shares representing a majority of the votes
actually cast shall be the act of the shareholders provided, however, that no
action required by law, the Articles, or these Regulations to be authorized or
taken by the holders of a designated proportion of the shares of the Corporation
may be authorized or taken by a lesser proportion.
Section 7. Organization of Meetings.
7.1 Presiding Officer. The Chairman of the Board, or in the
Chairman of the Board's absence the President, or the person designated by the
Board of Directors, shall call all meetings of the shareholders to order and
shall act as Chairman thereof; if all are absent, the shareholders shall elect
a Chairman.
7.2 Minutes. The Secretary of the Corporation, or in the Secretary's
absence, an Assistant Secretary, or, in the absence of both, a person
appointed by the Chairman of the meeting, shall act as Secretary of the
meeting and shall keep and make a record of the proceedings thereat.
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Section 8. Voting.
Except as provided by statute or in the Articles, every shareholder
entitled to vote shall be entitled to cast one vote on each proposal submitted
to the meeting for each share held of record on the record date for the
determination of the shareholders entitled to vote at the meeting.
Section 9. Proxies.
A person who is entitled to attend a shareholders' meeting, to vote
thereat or to execute consents, waivers and releases, may be represented at such
meeting or vote thereat, and execute consents, waivers and releases and exercise
any of the person's rights, by proxy or proxies appointed by a writing signed by
such person, or by his duly authorized attorney which may be transmitted
physically or by facsimile.
Section 10. List of Shareholders.
At any meeting of shareholders a list of shareholders, alphabetically
arranged, showing the number and classes of shares held by each on the record
date applicable to such meeting, shall be produced upon the request of any
shareholder.
ARTICLE II
Directors
Section 1. General Powers.
The authority of this Corporation shall be exercised by or under the
direction of the Board of Directors, except where the law, the Articles or these
Regulations require action to be authorized or taken by the shareholders.
Section 2. Election, Number and Qualification of Directors.
2.1 Election. The Directors shall be elected at the Annual Meeting
of the shareholders, or if not so elected, at a special meeting of
shareholders. The only candidates who shall be eligible for election at such
meeting shall be those who have been nominated by or at the direction of the
Board of Directors (which nominations shall be either made at such meeting or
disclosed in a proxy statement, or supplement thereto, distributed to
shareholders for such meeting) and those who have been nominated at such
meeting by a shareholder who has complied with the procedures set forth in
this Section 2. A shareholder may make a nomination for the office of
director only if such shareholder has first delivered or sent by certified
mail, return receipt requested, to the Secretary of the
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Corporation notice in writing at least five and no more than thirty days
prior to such meeting of shareholders, which notice shall set forth or be
accompanied by (a) the name and residence of such shareholder; (b) a
representation that such shareholder is a holder of record of voting stock of
the Corporation and intends to appear in person or by proxy at such meeting
to nominate the person or persons specified in the notice; (c) the name and
residence of each such nominee; and (d) the consent of such nominee to serve
as director if so elected. The Chairman of the meeting may, if the facts
warrant, determine and declare to the meeting that a nomination was not made
in accordance with the foregoing procedure, and if he should so determine, he
shall so declare to the meeting and the defective nomination shall be
disregarded.
2.2 Number. The number of Directors, which shall not be less than
the lesser of three or the number of shareholders of record, may be fixed or
changed at a meeting of the shareholders called for the purpose of electing
Directors at which a quorum is present, by the affirmative vote of the holders
of a majority of the shares represented at the meeting and entitled to vote on
such proposal. In addition, the number of Directors may be fixed or changed
by action of the Directors at any meeting of Directors at which a quorum is
present by a majority vote of the Directors present at the meeting. The
Directors then in office may fill any Director's office that is created by an
increase in the number of Directors. The number of Directors elected shall be
deemed to be the number of Directors fixed unless otherwise fixed by
resolution adopted at the meeting at which such Directors are elected.
2.3 Qualifications. Directors need not be shareholders of the
Corporation.
Section 3. Term of Office of Directors.
3.1 Term. Each Director shall hold office until the next Annual
Meeting of the shareholders and until a Director's successor has been elected
or until a Director's earlier resignation, removal from office or death.
Directors shall be subject to removal as provided by statute or by other
lawful procedures and nothing herein shall be construed to prevent the removal
of any or all Directors in accordance therewith.
3.2 Resignation. A resignation from the Board of Directors shall be
deemed to take effect immediately upon its being received by any incumbent
corporate officer other than an officer who is also the resigning Director,
unless some other time is specified therein.
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3.3 Vacancy. In the event of any vacancy in the Board of Directors
for any reason, the remaining Directors, though less than a majority of the
whole Board, may fill any such vacancy for the unexpired term.
Section 4. Meetings of Directors.
4.1 Regular Meetings. A regular meeting of the Board of Directors
shall be held immediately following the adjournment of the meeting of
shareholders at which Directors are elected. The holding of such
shareholders' meeting shall constitute notice of such Directors' meeting and
such meeting shall be held without further notice. Other regular meetings of
the Board of Directors shall be held at such times and places as may be fixed
by the Directors.
4.2 Special Meetings. Special meetings of the Board of Directors may
be held at any time upon call of the Chairman of the Board, the President or
any two Directors.
4.3 Place of Meeting. Any meeting of Directors may be held at such
place within or without the State of Ohio as may be designated in the notice
of said meeting.
4.4 Notice of Meeting and Waiver of Notice. Notice of the time and
place of any regular or special meeting of the Board of Directors shall be
given to each Director by personal delivery, telephone, facsimile transmission
or mail at least forty-eight hours before the meeting, which notice need not
specify the purpose of the meeting.
Section 5. Quorum and Voting.
At any meeting of Directors, not less than one-half of the whole
authorized number of Directors is necessary to constitute a quorum for such
meeting, except that a majority of the remaining Directors in office shall
constitute a quorum for filling a vacancy in the Board. At any meeting at which
a quorum is present, all acts, questions and business which may come before the
meeting shall be determined by a majority of votes cast by the Directors present
at such meeting, unless the vote of a greater number is required by the Articles
or Regulations.
Section 6. Committees.
6.1 Appointment. The Board of Directors may from time to time
appoint certain of its members to act as a committee or committees in the
intervals between meetings of the Board and may delegate to such committee or
committees power to be exercised under the control and direction of the Board.
Each committee shall be composed of at least three directors unless a lesser
number is allowed by law. Each such
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committee and each member thereof shall serve at the pleasure of the Board.
6.2 Executive Committee. In particular, the Board of Directors may
create from its membership and define the powers and duties of an Executive
Committee. During the intervals between meetings of the Board of Directors,
the Executive Committee shall possess and may exercise all of the powers of
the Board of Directors in the management and control and the business of the
Corporation to the extent permitted by law. All action taken by the Executive
Committee shall be reported to the Board of Directors at its first meeting
thereafter.
6.3 Committee Action. Unless otherwise provided by the Board of
Directors, a majority of the members of any committee appointed by the Board
of Directors pursuant to this Section shall constitute a quorum at any meeting
thereof and the act of a majority of the members present at a meeting at which
a quorum is present shall be the act of such committee. Any such committee
shall prescribe its own rules for calling and holding meetings and its method
of procedure, subject to any rules prescribed by the Board of Directors, and
shall keep a written record of all action taken by it.
Section 7. Action of Directors Without a Meeting.
Any action which may be taken at a meeting of Directors or any committee
thereof may be taken without a meeting if authorized by a writing or writings
signed by all the Directors or all of the members of the particular committee,
which writing or writings shall be filed or entered upon the records of the
Corporation.
Section 8. Compensation of Directors.
The Board of Directors may allow compensation to directors for
performance of their duties and for attendance at meetings or for any special
services, may allow compensation to members of any committee, and may reimburse
any Director for the Director's expenses in connection with attending any Board
or committee meeting.
Section 9. Relationship with Corporation.
Directors shall not be barred from providing professional or other
services to the Corporation. No contract, action or transaction shall be void
or voidable with respect to the Corporation for the reason that it is between or
affects the Corporation and one or more of its Directors, or between or affects
the Corporation and any other person in which one or more of its Directors are
directors, trustees or officers or have a
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financial or personal interest, or for the reason that one or more interested
Directors participate in or vote at the meeting of the Directors or committee
thereof that authorizes such contract, action or transaction, if in any such
case any of the following apply:
(i) the material facts as to the Director's relationship or interest
and as to the contract, action or transaction are disclosed or are known to
the Directors or the committee and the Directors or committee, in good faith,
reasonably justified by such facts, authorize the contract, action or
transaction by the affirmative vote of a majority of the disinterested
Directors, even though the disinterested Directors constitute less than a
quorum;
(ii) the material facts as to the Director's relationship or interest
and as to the contract, action or transaction are disclosed or are known to
the shareholders entitled to vote thereon and the contract, action or
transaction is specifically approved at a meeting of the shareholders held for
such purpose by the affirmative vote of the holders of shares entitling them
to exercise a majority of the voting power of the Corporation held by persons
not interested in the contract, action or transaction; or
(iii) the contract, action or transaction is fair as to the
Corporation as of the time it is authorized or approved by the Directors, a
committee thereof or the shareholders.
ARTICLE III
Officers
Section 1. General Provisions.
The Board of Directors shall elect a Chairman of the Board, a President,
a Secretary, a Treasurer, one or more Vice Presidents, and such other officers
and assistant officers as the Board may from time-to-time deem necessary. The
Chairman of the Board, if any, shall be a Director, but none of the other
officers needs to be a Director. Any two or more offices may be held by the
same person, but no officer shall execute, acknowledge or verify any instrument
in more than one capacity if such instrument is required to be executed,
acknowledged or verified by two or more officers.
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Section 2. Powers and Duties.
All officers, as between themselves and the Corporation, shall
respectively have such authority and perform such duties as are customarily
incident to their respective offices, and as may be specified from time to time
by the Board of Directors regardless of whether such authority and duties are
customarily incident to such office. In the absence of any officer of the
Corporation, or for any other reason the Board of Directors may deem sufficient,
any or all of the powers or duties of such officer may be delegated to any other
officer or to any Director. The Board of Directors may from time to time
delegate to any officer authority to appoint and remove subordinate officers and
to prescribe their authority and duties.
Section 3. Term of Office and Removal.
3.1 Term. Each officer of the Corporation shall hold office at the
pleasure of the Board of Directors and, unless sooner removed by the Board of
Directors, until the meeting of the Board of Directors following the date of
election of Directors and until his or her successor is elected and qualified.
3.2 Removal. The Board of Directors may remove any officer at any
time with or without cause by the affirmative vote of a majority of Directors
in office.
Section 4. Compensation of Officers.
The Directors shall establish the compensation of officers and employees
or may, to the extent not prohibited by law, delegate such authority to one or
more officers or Directors as they determine.
ARTICLE IV
Indemnification
Section 1. Right to Indemnification.
Each person who was or is made a party or is threatened to be made a
party to or is otherwise involved (including, without limitation, as a witness)
in any actual or threatened action, suit, or proceeding, whether civil,
criminal, administrative, or investigative (hereinafter a "proceeding"), by
reason of the fact that such person is or was a director or officer of the
Corporation or that, being or having been such a director or officer of the
Corporation, such person is or was serving at the request of an executive
officer of the Corporation as a director, officer, partner, employee, or agent
of another corporation or of a partnership, joint venture, trust, limited
liability company,
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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 such a director, officer, partner, employee,
or agent, shall be indemnified and held harmless by the Corporation to the
fullest extent permitted by the General Corporation Law of Ohio, 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), or by other
applicable law as then in effect, against all expense, liability, and loss
(including, without limitation, attorneys' fees, costs of investigation,
judgments, fines, excise taxes or penalties arising under the Employee
Retirement Income Security Act of 1974 ("ERISA") or other federal or state
acts) actually incurred or suffered by such indemnitee in connection therewith
and such indemnification shall continue as to an indemnitee who has ceased to
be a director, officer, employee, or agent and shall inure to the benefit of
the indemnitee's heirs, executors, and administrators. Except as provided in
Section 2 with respect to proceedings seeking 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 or ratified by the
Board of Directors of the Corporation.
The right to indemnification conferred in this Section 1 shall be a
contract right and shall include the right to be paid by the Corporation the
expenses incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"). An advancement of
expenses incurred by an indemnitee in such person's capacity as a director,
officer or employee (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, by or on behalf of such indemnitee to repay all amounts so advanced
if it is proved by clear and convincing evidence in a court of competent
jurisdiction that such indemnitee's omission or failure to act involved an act
or omission undertaken with deliberate intent to cause injury to the Corporation
or undertaken with reckless disregard for the best interests of the Corporation.
An advancement of expenses shall not be made if the Corporation's Board of
Directors makes a good faith determination that such payment would violate
applicable law or public policy.
Section 2. Right of Indemnitee to Bring Suit.
If a claim under Section 1 is not paid in full by the Corporation within sixty
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 days, the indemnitee may at any time thereafter
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bring suit against the Corporation to recover the unpaid amount of the claim.
If successful in whole or in part in any such suit, or in a suit brought by the
Corporation to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall also be entitled to be paid the expense of
prosecuting or defending such suit. The indemnitee shall be presumed to be
entitled to indemnification under this Article IV upon submission of a written
claim (and, in an action brought to enforce a claim for an advancement of
expenses, where the required undertaking has been tendered to the Corporation),
and thereafter the Corporation shall have the burden of proof to overcome the
presumption that the indemnitee is not so entitled. Neither the failure of the
Corporation (including its Board of Directors, independent legal counsel, or
its shareholders) to have made a determination prior to the commencement of
such suit that indemnification of the indemnitee is proper in the
circumstances, nor an actual determination by the Corporation (including its
Board of Directors, independent legal counsel or its shareholders) that the
indemnitee is not entitled to indemnification shall be a defense to the suit or
create a presumption that the indemnitee is not so entitled.
Section 3. Nonexclusivity and Survival of Rights.
The rights to indemnification and to the advancement of expenses
conferred in this Article IV shall not be exclusive of any other right which any
person may have or hereafter acquire under any statute, provisions of the
Articles of Incorporation, Code of Regulations, agreement, vote of shareholders
or disinterested directors, or otherwise.
Notwithstanding any amendment to or repeal of this Article IV, or of any
of the procedures established by the Board of Directors pursuant to Section 7,
any indemnitee shall be entitled to indemnification in accordance with the
provisions hereof and thereof with respect to any acts or omissions of such
indemnitee occurring prior to such amendment or repeal.
Without limiting the generality of the foregoing paragraph, the rights
to indemnification and to the advancement of expenses conferred in this Article
IV shall, notwithstanding any amendment to or repeal of this Article IV, inure
to the benefit of any person who otherwise may be entitled to be indemnified
pursuant to this Article IV (or the estate or personal representative of such
person) for a period of six years after the date such person's service to or in
behalf of the Corporation shall have terminated or for such longer period as may
be required in the event of a lengthening in the applicable statute of
limitations.
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Section 4. Insurance, Contracts, and Funding.
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 General Corporation Law of Ohio. The Corporation may enter into
contracts with any indemnitee in furtherance of the provisions of this Article
IV and may create a trust fund, grant a security interest, or use other means
(including, without limitation, a letter of credit) to ensure the payment of
such amounts as may be necessary to effect indemnification as provided in this
Article IV.
Section 5. Persons Serving Other Entities.
Any person who is or was a director, officer, or employee of the
Corporation who is or was serving (i) as a director or officer of another
corporation of which a majority of the shares entitled to vote in the election
of its directors is held by the Corporation or a wholly-owned subsidiary of the
Corporation, or (ii) in an executive or management capacity in a partnership
joint venture, trust, limited liability company or other enterprise of which the
Corporation or a wholly-owned subsidiary of the Corporation is a general partner
or member or has a majority ownership shall be deemed to be so serving at the
request of an executive officer of the Corporation and entitled to
indemnification and advancement of expenses under Section 1.
Section 6. Indemnification of Employees and Agents of the Corporation.
The Corporation may, by action of its Board of Directors, authorize one
or more executive officers to grant rights to advancement of expenses to
employees or agents of the Corporation on such terms and conditions no less
stringent than provided in Section 1 hereof as such officer or officers deem
appropriate under the circumstances. The Corporation may, by action of its
Board of Directors, grant rights to indemnification and advancement of expenses
to employees or agents or groups of employees or agents of the Corporation with
the same scope and effect as the provisions of this Article IV with respect to
the indemnification and advancement of expenses of directors and officers of the
Corporation; provided, however, that an undertaking shall be made by an employee
or agent only if required by the Board of Directors.
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Section 7. Procedures for the Submission of Claims.
The Board of Directors may establish reasonable procedures for the
submission of claims for indemnification pursuant to this Article IV,
determination of the entitlement of any person thereto, and review of any such
determination. Such procedure, shall be set forth in an appendix to these Code
of Regulations and shall be deemed for all purposes to be a part hereof.
ARTICLE V
Amendments
This Code of Regulations may be amended by the affirmative vote or the
written consent of the shareholders entitled to exercise a majority of the
voting power on such proposal. If an amendment is adopted by written consent
the Secretary shall mail a copy of such amendment to each shareholder who would
be entitled to vote thereon and did not participate in the adoption thereof.
This Code of Regulations may also be amended by the affirmative vote of a
majority of the Directors to the extent permitted by Ohio law at the time of
such amendment.
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