EXHIBIT 3.2
CORPORATE BY-LAWS
OF
SPICY GOURMET MANUFACTURING, INC.
OFFICES
1. The registered office of the corporation shall be in the State of Delaware.
The resident agent in charge thereof shall be appointed by the Board of
Directors. The corporation may also have offices at such other places both
within and without the State of Delaware as the Board of Directors may from time
to time determine or the business of the corporation may require.
CORPORATE SEAL
2. The corporation may transact any and all business without the need for a
corporate seal. If a seal is required by law, the corporation may use a
facsimile where inscribed therein is the name of the corporation, the year of
its incorporation, and the words "Corporate Seal, Delaware". In its discretion,
the Board is permitted to acquire and use a true seal setting forth the
information noted above.
MEETING OF STOCKHOLDERS
3. The annual meeting of stockholders for the election of directors shall be
held on a day during the first six months of each fiscal year, at a time, and at
a place all as set by the Board of Directors. At said meeting the stockholders
shall elect by plurality vote, a Board of Directors, and may transact such other
business as may come before the meeting.
4. Special meetings of the stockholders may be called at any time by the
President, and shall be called by the President or Secretary on the request in
writing of a majority of the directors or at the request in writing of a
majority in voting interest of stockholders entitled to vote.
5. All meetings of the stockholders for the elections of directors shall be held
at the office of the corporation in the State of Delaware, or at such other
place as may be fixed by the Board of Directors, provided that at least ten
days' notice be given to the stockholders of the place so fixed. All other
meetings of the stockholders shall be held at such place or places, within or
without the State of Delaware, as may from time to time be fixed in the notices
or waivers of notice thereof.
6. Stockholders of the corporation entitled to vote shall be such persons as are
registered on the stock transfer books of the corporation as owners of stock.
The Board of Directors may set a record date for annual meetings, but such
record date may not be more than 45 days prior to the annual meeting.
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7. A complete list of stockholders entitled to vote, arranged in alphabetical
order, shall be prepared by the Secretary or Transfer Agent and shall be open to
the examination of any stockholder at the place of election during the whole
time of the election.
8. Each stockholder entitled to vote shall, at every meeting of the
stockholders, be entitled to one vote for each share held. Each stockholder
entitled to vote may vote in person or by proxy signed by the stockholder, but
no proxy shall be voted on or after three years from its date, unless it
provides for a longer period. Such right to vote shall be subject to the right
of the Board of Directors to fix a record date for stockholders as provided by
these By-Laws.
9. The holders of 30% of the stock issued and outstanding and entitled to vote
at a meeting of the stockholders, present in person or represented by proxy,
shall constitute a quorum at all meetings of the stockholders for the
transaction of business except as otherwise provided by statute or by the
Certificate of Incorporation. If such quorum shall not be present or represented
at any meeting of the stockholders, the stockholders entitled to vote at the
meeting, present in person or represented by proxy, shall have the power to
adjourn the meeting from time to time, without notice other than announcement at
the meeting, until a quorum shall be present or represented. At such adjourned
meeting at which a quorum shall be present or represented, any business may be
transacted which might have been transacted at the meeting as originally
notified. If the adjournment is for more than 30 days, or if after the
adjournment a new record date is fixed for the adjourned meeting, a notice of
the adjourned meeting shall be given to each stockholder of record entitled to
vote at the meeting.
10. When a quorum is present at any meeting, the vote of the holders of a
majority of the stock having voting power, present in person or represented by
proxy, shall decide any question properly brought before such meeting, unless
the question is one which by express provision of the statutes of the State of
Delaware or of the Certificate of Incorporation, a different vote is required,
in which case such express provision shall govern and control the decision of
such question.
11. Notice of all meetings shall be mailed by the Secretary to each stockholder
of record entitled to vote at his last known post office address, for annual
meetings fifteen days and for special meetings ten days prior thereto.
12. Business transacted at any special meeting of stockholders shall be limited
to the purposes stated in the notice.
13. Unless otherwise provided in the Certificate of Incorporation, any action
required to be taken at any annual or special meeting of stockholders of the
corporation, or any action which may be taken at any annual or special meeting
of such stockholders, may be taken without a meeting, without prior notice and
without a vote, if consent in writing, setting forth the action so taken, shall
be signed by the holders of outstanding stock having not less than the minimum
number of voters that would be necessary to authorize or take such action at a.
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meeting at which all shares entitled to vote thereon were present and voted.
Prompt notice of the taking of the corporate action without a meeting by less
than unanimous written consent, shall be given to those stockholders who have
not consented in writing.
DIRECTORS
14. The property and business of the corporation shall be managed and controlled
by the Board of Directors.
15. The directors shall hold office until the next annual election and until
their successors are elected and qualified. Directors shall be elected by the
stockholders, except that if there be any vacancies on the Board of Directors by
reason of death, resignation, or otherwise, or if there be any newly created
directorships resulting from any increase in the number of directors, such
vacancies or newly created directorships may be filled for the unexpired term by
a majority of the directors then in office, though less than a quorum.
POWERS OF DIRECTORS
16. The Board of Directors shall have all such powers as may be exercised by
directors of a Delaware corporation, subject to the provisions of the statutes
of Delaware, the Certificate of Incorporation, and the By-Laws.
MEETINGS OF DIRECTORS
17. After each annual election of directors, the newly elected directors may
meet for the purpose of organization, the election of officers, and the
transaction of other business, at such time and place as shall be fixed by the
stockholders at the annual meeting, and, if a majority of the directors be
present at such place and time, no prior notice of such meeting will be required
to be given to the directors. The place and time of such meeting may also be
fixed by written consent of the directors.
18. Regular meetings of the Board of Directors may be held without notice at
such time and at such place as shall from time to time be determined by the
Board.
19. Special meetings of the directors may be called by the president on two
days' notice in writing or on one days notice by telegram to each director and
shall be called by the president in like manner on the written request of two
directors.
20. Special meetings of the directors may be held within or without the State of
Delaware at such place as is indicated in the notice or waiver of notice
thereof.
21. A majority of the directors in office at the time of any regular or special
meeting shall constitute a quorum.
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22. Any action required or permitted to be taken at any meeting of the Board of
Directors may be taken without a meeting, if all members of the Board consent
thereto in writing, and the writing or writings are filed with the minutes of
proceedings of the Board.
23. Members of the Board of Directors may participate in a meeting of the Board
of Directors by means of a conference telephone or similar communications
equipment by means of which all persons participating in the meeting may hear
one another, and such participation in a meeting shall constitute presence in
person at the meeting.
COMMITTEES
24. The Board of Directors may, by resolution, create committees from time to
time, which committees shall have and may exercise all the powers and authority
of the Board of Directors to manage the business and affairs of the corporation.
However, the committees shall not have the power to amend the Certificate of
Incorporation, adopt an agreement of merger or consolidation, recommend to the
stockholders the sale, lease or exchange of all or substantially all of the
corporation's property and assets, recommend to the stockholders a dissolution
of the corporation or a revocation of a dissolution, amend the By-Laws of the
corporation; and, unless a resolution or the Certificate of Incorporation
expressly so provides, no such committee shall have the power to declare a
dividend or authorize the issuance of stock.
INDEMNIFICATION
25. The personal liability of the directors of the corporation is hereby
eliminated to the fullest extent permitted by the provisions of paragraph (7) of
subsection (b) of Section 102 of the General Corporation Law of the State of
Delaware, as the same may be amended and supplemented.
OFFICERS OF THE CORPORATION
26. The officers of the corporation shall be a president, a secretary, a
treasurer, and such other officers as may from time to time be chosen by the
Board of Directors. All offices may be held by the same person.
27. The officers of the corporation shall hold office until their successors are
chosen and qualify in their stead. Any officer chosen or appointed by the Board
of Directors may be removed either with or without cause at any time by the
affirmative vote of a majority of the whole Board of Directors. If the office of
any officer or officers becomes vacant for any reason, the vacancy shall be
filled by the affirmative vote of a majority of the whole Board of Directors.
28. In case of the absence or disability of any officer of the corporation, or
for any other reason deemed sufficient by a majority of the Board of Directors,
the duties of that officer may be delegated by the Board of Directors to any
other officer or to any director.
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INDEMNIFICATION
29. The corporation shall, to the fullest extent permitted by the provisions of
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities, or other matters referred to in or covered by said
section. The indemnification provided for herein shall not be deemed exclusive
of any other rights to which those indemnified may be entitled under any
agreement, vote of stockholders or disinterested directors, or otherwise. Such
indemnification shall apply both as to action in his official capacity of one
holding office, and shall continue as to a person who has ceased to be a
director, officer, employee, or agent and shall inure to the benefit of the
heirs, executors, and administrators of such a person."
SECRETARY
30. The secretary shall attend all meetings of the corporation, the Board of
Directors, and its committees. He shall act as clerk thereof and shall record
all of the proceedings of such meetings in a book kept for that purpose. He
shall have custody of the corporate seal of the corporation and shall have
authority to affix the seal to any instrument requiring it and when so affixed,
it may be attested by his signature. He shall give proper notice of meetings of
stockholders and directors and shall perform other such duties as shall be
assigned to him by the president or the Board of Directors.
TREASURER
31. The treasurer shall have custody of the funds and securities of the
corporation and shall keep full and accurate accounts of receipts and
disbursements in books belonging to the corporation. He shall deposit all monies
and other valuable effects in the name and to the credit of the corporation in
such depositories as may be designated by the Board of Directors.
32. The treasurer shall disburse such funds of the corporation as may be ordered
by the Board or the president, taking proper vouchers for such disbursements,
and shall render to the president and directors, whenever they may require it,
an account of all his transactions as treasurer and of the financial condition
of the corporation, and at the regular meeting of the Board next preceding the
annual members meeting, a like report for the preceding year.
33. The treasurer shall keep an account of stock registered and transferred in
such manner subject to such regulations as the Board of Directors may prescribe.
34. The treasurer shall give the corporation a bond if required by the Board of
Directors in such sum and with security satisfactory to the Board of Directors
for the faithful performance of the duties of his office and the restoration to
the corporation, in the case of his death, resignation, or removal from office,
of all books, paper, vouchers, money and other property of whatever kind in his
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possession, belonging to the corporation. He shall perform such other duties as
the Board of Directors or executive committee may from time to time prescribe or
require.
PRESIDENT
35. The president shall be the chief executive officer of the corporation. He
shall preside at all meetings of the stockholders and the Board of Directors,
and shall have general and active management of the business of the corporation,
and shall see that all orders and resolutions of the Board of Directors are
carried into effect.
36. The president shall execute bonds, mortgages, and other contracts requiring
a seal, under the seal of the corporation, except where required or permitted by
law to be otherwise signed and executed, and except where the signing and
execution thereof shall be expressly delegated by the Board of Directors to some
other officer or agent of the corporation.
STOCKS
37. Every holder of stock in the corporation shall be entitled to have a
certificate, signed by, or in the name of the corporation by, the president or
secretary of the corporation, certifying the number of shares owned by him in
the corporation. Certificates may be issued for partly paid shares, and in such
case upon the face or back of the certificates issued to represent any such
partly paid shares, the total amount of the consideration to be paid therefore,
and the amount paid thereon, shall be specified.
38. Any or all of the signatures on the certificates may be facsimile.
39. The Board of Directors may direct a new certificate or certificates to be
issued in place of any certificate or certificates theretofore issued by the
corporation alleged to have been lost, stolen, or destroyed, upon the making of
an affidavit of that fact by the person claiming their certificate of stock to
be lost, stolen or destroyed. The Board of Directors may, in its discretion and
as a condition precedent to the issuance thereof; require the owner of such
lost, stolen, or destroyed certificate or certificates to give the corporation a
bond in such sum as it may direct as indemnity against any claim that may be
made against the corporation with respect to the certificate alleged to have
been lost, stolen, or destroyed.
CHECKS
40. All checks, drafts, or orders for the payment of money shall be signed by
the treasurer or by such other officer or officers as the Board of Directors may
from time to time designate. No check shall be signed in blank.
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BOOKS AND RECORDS
41 The Books, accounts, and records of the corporation, except as otherwise
required by the laws of the State of Delaware, may be kept within or without the
State of Delaware, at such place or places as may from time to time be
designated by the By-Laws or by the resolutions of the directors.
NOTICES
42 Notice required to be given under the provisions of these By-Laws to any
director, officer or stockholder, shall not be construed to mean personal
notice, but may be given in writing by depositing the same in a post office or
letter box, in a post-paid sealed wrapper, addressed to such stockholder,
officer, or director at such address as appears on the books of the corporation,
and such notice shall be deemed to be given at the time when the same shall thus
be mailed. Any stockholder, officer, or director, may waive, in writing, any
notice required to be given under these By-Laws, whether before or after the
time stated therein.
DIVIDENDS
43. Dividends upon the capital stock of the corporation, subject to the
Certificate of incorporation, may be declared by the Board of Directors at any
regular or special meeting, pursuant to law. Dividends may be paid in cash, in
property, or in shares of the capital stock of the corporation, subject to the
provisions of the Certificate of Incorporation.
44. Before payment of any dividend, there may be set aside out of any funds of
the corporation available for dividends such sum or sums as the directors from
time to time, in their absolute discretion, think proper as a reserve or
reserves to meet contingencies or for equalizing dividends, or for repairing or
maintaining any property of the corporation, or for such other purposes as the
directors shall think conducive to the best interest of the corporation. The
directors may modify or abolish any such reserve in the manner by which it was
created.
FISCAL YEAR
45. The fiscal year of the corporation shall be determined by the Board of
Directors.
AMENDMENT OF BY-LAWS
46. These By-Laws may be amended, altered, repealed, or added to at any regular
meeting of the stockholders or of the Board of Directors, or at any special
meeting called for that purpose, by affirmative vote of a majority of the
stockholders entitled to vote, or by affirmative vote of a majority of the whole
board, as the case may be.
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47. Any and all disputes and controversies by and between the shareholders or
the directors arising out of or with respect to the business of or affecting the
affairs of the corporation, which disputes and controversies cannot be resolved
under the terms of the corporate By-Laws or Certificate of Incorporation,
because of a tie vote or deadlock between the directors and shareholders shall
be settled by arbitration in the following manner. Each side of the dispute
shall be entitled to name one arbitrator and both arbitrators so named shall
together agree upon a third arbitrator, with the findings of the arbitration
panel to be binding upon all parties to the dispute. Unless otherwise mutually
agreed by the parties the arbitration shall take place in accordance with and
subject to the provisions of the Delaware Uniform Arbitration Act., 10 Del. C.
"5701 et.seq.
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