BYLAWS
OF
TOO GOURMET, INC.,
a Nevada corporation
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.
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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
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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.
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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.
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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:
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(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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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 in
settlement) reasonably 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 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.
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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 to
indemnification hereunder (but not in a suit brought by the indemnitee to
enforce 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 expenses
pursuant to the terms of an undertaking the Corporation shall be entitled to
recover such expenses upon a final adjudication that, the indemnitee has not met
any applicable standard for indemnification set forth in the Nevada General
Corporation Law. Neither the failure of the Corporation (including its board of
directors, independent legal counsel, or its stockholders) to have made a
determination prior to the commencement of such suit that indemnification of the
indemnitee is proper in the circumstances because the indemnitee has met the
applicable standard of conduct set forth in Nevada General Corporation Law, nor
an 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.
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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.
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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.
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(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