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EXHIBIT 3.5
BYLAWS
OF
EVERGREEN NETWORK.COM,INC.
ARTICLE I
OFFICES
Section 1. Offices:
The initial principal office of Evergreen Network.com, Inc. ("Corporation")
shall be 3336 North 32nd Street, Suite 106, in the city of Phoenix, Arizona
85018. The Corporation shall have other offices at such places as the Board of
Directors may from time to time determine. The Board of Directors may change the
location of the Corporation's principal office at its discretion.
ARTICLE II
SHAREHOLDERS MEETINGS
Section 1. Place:
The place of the shareholders' meetings shall be the principal office of the
Corporation unless some other place either within or without of the State of
Colorado shall be determined and designated from time to time by the Board of
Directors.
Section 2. Annual Meetings:
The annual meeting of the shareholders of the Corporation for the election of
directors to secede those whose terms expire, and for the transaction of such
other business as may properly come before the meeting, shall be held each year
on the first Monday in June beginning in the year 2001.
If the annual meeting of the shareholders be not held, or if held and directors
shall not have been elected for any reason, then the election of directors may
be held at any meeting of shareholders thereafter called pursuant to these
Bylaws and the Colorado Business Corporation Act ("Act").
Section 3. Special Meetings:
Special Meetings of the shareholders for any purpose or purposes may be called
by the President, the Board of Directors, or the holders of ten percent or more
of all the shares entitled to vote at such meetings, by the giving of notice in
writing as hereinafter described.
Section 4. Voting:
At all meetings of shareholders, voting may be viva voce, but any qualified
voter may demand a stock vote, whereupon such vote shall be taken by ballot and
the Secretary shall record the name of the shareholder voting, the number of
shares voted, and, if such vote shall be in person or by proxy appointed by the
shareholder in accordance with the Act, or by his duly authorized
attorney-in-fact.
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Each shareholder shall have such rights to vote as the Articles of Incorporation
provide for each share of stock registered in his name on the books of the
Corporation, except where the transfer books of the Corporation shall have been
closed or a date shall have been fixed as a record date, not to exceed, in any
case, 60 days preceding the meeting, for the determination of shareholders
entitled to vote. The Secretary of the Corporation shall make, at least 10 days
before each meeting of shareholders, a complete list of the shareholders
entitled to vote at such meeting or any adjournment thereof, arranged in
alphabetical order, with the address of and the number of shares held by each,
which list, for a period of 10 days prior to such meeting, shall be kept on file
at the principal office of the Corporation and shall be subject to inspection by
any shareholder for any purpose germane to the meeting at any time during usual
business hours. Such list shall also be produced and kept open at the time and
place of the meeting and shall be subject to the inspection of any shareholder
for any purpose germane to the meeting during the whole time of the meeting.
Section 5. Order of Business:
The order of business at any meeting of shareholders shall be as follows:
1. Calling the meeting to order.
2. Calling of roll.
3. Proof of notice of meeting.
4. Report of the Secretary of the stock represented at the meeting and the
determination of the existence or lack of a quorum.
5. Reading of minutes of last previous meetings and disposal of any unapproved
minutes.
6. Reports of officers.
7. Reports of committee.
8. Election of directors, If appropriate.
9. Unfinished business.
10. New business.
11. Adjournment.
To the extent that these Bylaws do not apply, Roberts' Rules of Order shall
prevail.
Section 6. Notices:
Written or printed notice stating the place, day, and hour of the meeting and,
in case of a special meeting, the purpose or purposes for which the meeting is
called, shall be delivered not less that 10 nor more than 60 days before the
date of the meetings, either personally or by mail, by or at the direction of
the President, the Secretary, or the officer or persons calling the meeting, to
each shareholder or record entitled to vote at such meeting, except that, if the
authorized capital stock is to be increased, at least 30 days' notice shall be
given. Notice to shareholders of record, if mailed, shall be deemed delivered as
to any shareholder of record when deposited in the United States mail,
addressed to the shareholder at his address as it appears on the stock transfer
books of the Corporation, with postage prepaid. If three successive letters
mailed to the last known address of any shareholder of record are returned as
undeliverable, no further notices to such shareholder shall be necessary until
another address for such shareholder is made known to the Corporation.
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When a meeting is adjourned to another time or place, notice need not be given
of the adjourned meeting if the time and place thereof are announced at the
meeting at which the adjournment is taken. At the adjourned meeting the
Corporation may transact any business which might have been transacted at the
original meeting after the adjournment a new record date is fixed for the
adjourned meeting, a notice of the adjourned meeting shall be given to each
shareholder of record entitled to vote at the meeting.
Section 7. Quorum:
A quorum at any annual or special meeting shall consist of the representation in
person or by proxy of a majority in number of the shares of outstanding capital
stock of the Corporation entitled to vote at such meeting, and the vote of a
majority of the quorum shall be the act of the shareholders unless the vote of a
greater number, or voting by classes, is required by the Act or the Articles of
Incorporation. In the event a quorum be not present, the meeting may be
adjourned by those present for a period not to exceed 60 days at any one
adjournment. The shareholders entitled to vote, present either in person or by
proxy at such adjourned meeting, shall, It equal to one-half of the shares
entitled to vote at the meeting, constitute a quorum, and the vote of a majority
of the quorum shall be the act of the shareholders at such adjourned meeting
unless the vote of a greater number, or voting by classes, is required by the
Act or the Articles of Incorporation.
Section 8. Action by Shareholders Without a Meeting.
Any action required to be or which may be taken at a meeting of the shareholders
of the Corporation may be taken without a meeting if one or more written
consents selling forth the action so taken is signed by all of the shareholders
entitled to vote with respect to the subject matter thereof, and delivered to
the Secretary of the Corporation for inclusion in the corporate records. Such
action if effective when all shareholders entitled to vote have signed the
consent unless the consent specifies a different effective date.
ARTICLE III
BOARD OF DIRECTORS
Section 1. Organization and Power:
The Board of Directors shall constitute the policy making or legislative
authority of the Corporation. Management of the affairs, property, and business
of the Corporation shall be vested in the Board of Directors. Directors need not
be shareholders of the Corporation nor residents of Colorado. Directors shall
have all powers with respect to the management, control, and determination of
policies of the Corporation that are not limited by these Bylaws, the Articles
of Incorporation, or the statutes of the State of Colorado, and the enumeration
of any power shall riot be considered a limitation thereof.
Section 2. Classification of Board:
The business and property of the Corporation shall be conducted and managed by
its Board of Directors which shall consist of not less than three members. The
exact number of Directors shall be fixed from time to time by the Board of
Directors pursuant to a resolution adopted by a majority of the entire Board of
Directors. The Directors shall be divided into three classes; as nearly equal in
number as possible, with respect to the times for which they shall severally
hold office. Class A directors first chosen shall hold office for one year or
until the first annual election following their election; Class B directors
first chosen shall hold office for two years or until the second annual election
following their election; and Class C directors first chosen shall hold office
for three years or until the third annual election following their election;
and, in each case, until their successors to the Class of Directors whose term
shall expire at the time shall be elected to hold office for a term of three
years, so that the term of one Class of Directors shall expire each year. Each
Director shall hold office until his successor shall be elected and shall
qualify.
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Section 2. Vacancies:
Any vacancy in the Board of Directors, however caused or created, shall be
filled by the affirmative vote of a majority of the remaining directors, though
less than a quorum of the Board, or at a special meeting of the shareholders
called for that purpose. The directors elected to fill vacancies shall hold
office for the unexpired term and until their successors are elected and
quality.
Section 3. Regular Meetings:
A regular meeting of the Board of Directors shall be held, without other notice
than this Bylaw, immediately after and at the same place as the annual meeting
of shareholders or any special meeting of shareholders at which a director or
directors shall have been elected. The Board of Directors may provide by
resolution the time and place, either within or without the State of Colorado,
for the holding of additional regular meetings without other notice than such
resolution.
Section 4. Special Meetings:
Special meetings of the Board of Directors may be held at the principal office
of the Corporation, or such other place as may be fixed by resolution of the
Board of Directors for such purpose, at any time on call of the President or of
any member of the Board, or may be held at any time and place without notice, by
unanimous written consent of all the members, or with the presence and
participation of all members at such meeting.
Section 5. Notices:
Notices of both regular and special meetings, when hold by unanimous consent or
participation, shall be mailed or delivered by the Secretary to each member of
the Board not less than two days before any such meeting and notices of special
meetings may state the purposes thereof. No failure or irregularity of notice of
any regular meeting shall invalidate such meeting or any proceeding thereat.
Section 6. Quorum and Manner of Acting:
A quorum for any meeting of the Board of Directors shall be a majority of the
Board of Directors as then constituted. Any act of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors. Any action of such majority, although not at a regularly called
meeting, and the record thereof, it assented to in writing by all of the other
members of the Board, shall always be as valid and effective in all respects as
if otherwise duly taken by the Board of Directors.
Section 7. Committees:
The Board of Directors may, by resolution of a majority of the full Board,
designate two or more directors to constitute an Executive Committee and one or
more other committees, each of which shall have and may exercise, to the extent
provided in such resolution, all of the authority of the Board of Directors in
the management of the Corporation, except that no such committee shall have the
authority to declare dividends or distributions; approve or recommend to the
shareholders actions or proposals required by the Act to be approved by
shareholders; fill vacancies on the Board of Directors or any committee thereof,
amend the Corporation's Bylaws; approve a plan of merger not requiring
shareholder approval; reduce earned or capital surplus; authorize or approve the
reacquisition of shares unless pursuant to a general formula or method specified
by the Board of Directors pursuant to the Act or authorize or approve the
issuance or sale of, or any contract to issue or sell, shares or designate the
terms of a series of a class of shares.
Neither the designation or any such committee, the delegation of authority to
such committee, on or any action by such committee pursuant to its authority
shall alone constitute compliance by any member of the Board of
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Directors, nor a member of the committee in question, with his responsibility to
act in good faith, in a manner he reasonably believes to be in the best
interests of the Corporation, and with such care as an ordinarily prudent person
in a like position would use under similar circumstances.
Section 8. Action by Directors Without a Meeting:
Any action required to be, or which may be, taken at a meeting of the Board of
Directors, Executive Committee or other committee or the directors, may be taken
without a meeting if one or more written consents setting forth the action so
taken is signed by all directors or committee members entitled to vote with
respect to the subject matter thereof, and delivered to the Secretary of the
Corporation for inclusion in the corporate records. Such action is effective
when all directors or committee members have signed the consent, unless the
consent specifies a different effective date.
Section 9. Order of Business:
The order of business at any regular or special meeting of the Board of
Directors, unless otherwise prescribed for any meeting by the Board, shall be as
follows:
1. Reading and disposal of any unapproved minutes.
2. Reports of officers and committees.
3. Unfinished business.
4. New business.
5. Adjournment.
To the extent that these Bylaws do not apply, Roberts' Rules of Order shall
prevail.
Section 10. Remuneration:
No stated salary shall be paid to directors for their services as much, but, by
resolution of the Board of Directors, a fixed sum and expenses of attendance, if
any, may be allowed for attendance at each regular or special meeting of the
Board. Members of special or standing committees may be allowed like
compensation for attending meetings. Nothing herein contained shall be construed
to preclude any director from receiving compensation for serving the Corporation
in any other capacity, subject to such resolutions of the Board of Directors as
may then govern receipt of such compensation.
ARTICLE IV
OFFICERS
Section 1. Titles:
The officers of the Corporation shall consist of a President, one or more Vice
Presidents, a Secretary and a Treasurer, each of whom shall be elected for one
year by the directors at their first meeting following the annual meeting of
shareholders. Such officers shall hold office until their successors are elected
and qualify. The Board of Directors may from time to time elect or appoint one
or more Vice Presidents and such other officers and assistant officers as it
deems necessary, each of whom shall serve during such terms as may be fixed by
the Board at a duly held meeting. Any two or more offices may be held by the
same person except the offices of President and Secretary.
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Section 2. President:
The President shall preside at all meetings of shareholders and, in the absence
of a, or the, Chairman of the Board of Directors, at all meetings of the
directors. The President shall be generally vested with the power of the chief
executive officer of the Corporation and shall countersign all certificates,
contracts and other instruments of the Corporation as authorized by the Board
of Directors, or required by Law. The President shall make reports to the Board
of Directors and shareholders and shall perform such other duties and services
as may be required from time to time by the Board of Directors.
Section 3. Vice President:
If a Vice President is elected or appointed, or if more than one Vice President
is elected, the Vice President bearing the title of "Senior" or "Executive"
Vice President, or similar title, shall perform all the duties of the President
if the President is absent or for any other reason is unable to perform the
duties of the office and shall have such other duties as the Board of Directors
shall authorize or direct.
Section 4. Secretary:
The Secretary shall issue notices of all meetings of shareholders and directors,
shall keep minutes of all such meetings, and shall record all proceedings. The
Secretary shall have custody and control of the corporate records and books,
excluding the books of account, together with the corporate seat. The Secretary
shall make such reports and perform such other duties as may be consistent with
the office or as may be required from time to time by the Board of Directors.
Section 5. Treasurer:
The Treasurer shall have custody of all monies and securities of the Corporation
and shall have supervisions over the regular books of account. The Treasurer
shall deposit all monies, securities, and other valuable effects of the
Corporation in such banks and depositories as the Board of Directors may
designate and shall disburse the funds of the Corporation in payment or just
debts and demands against the Corporation, or as they may be ordered by the
Board of Directors, shall render such account of the transactions of the
Corporation may be required by the President or the Board of Directors from time
to time and shall otherwise perform such duties as may be required by the Board
of Directors. The Board of Directors may require the Treasurer to give a bond
indemnifying the Corporation against larceny, theft, embezzlement, forgery,
misappropriation, or any other act of fraud or dishonesty resulting from
performance of the duties as Treasurer of the Corporation, which bond shall be
in such amount as appropriate resolution or resolutions of the Board of
Directors may require.
Section 6. Vacancies or Absences:
If a vacancy in any office arises in any manner, the directors then in office
may choose by a majority vote, a successor to hold office for the unexpired
term of the officer. It any officer shall be absent or unable for any reason to
perform the duties of the office, the Board of Directors, to the extent not
otherwise inconsistent with these Bylaws, may direct that the duties of such
officer during such absence or inability shall be performed by such other
officer or subordinate officer as seems advisable to the Board.
Section 7. Compensation:
No officer shall receive any salary or compensation for his services unless and
until the Board of Directors authorizes and fixes the amount and terms of such
salary or compensation.
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ARTICLE V
STOCK
Section 1. Certificates of Shares:
Each holder of stock of the Corporation shall be entitled to a stock certificate
signed by the President (or Vice President if one is appointed) and also by the
Secretary or an assistant secretary of the Corporation. The certificates of
shares shall be in such form not inconsistent with the Articles of
Incorporation, as shall be prepared or approved by the Board of Directors. The
certificates shall be consecutively numbered. Each certificate shall state upon
its face that the Corporation is organized under the laws of Colorado; the name
of the person to whom issued, the number and class of shares and the designation
of the series, it any, which such certificate represents; par value of each
share represented by the certificate, or a statement that the shares are without
par value. The name of the person owning the shares represented thereby, with
the number of such shares and the date of issue, shall be entered on the
Corporation's books, and no certificate shall be valid unless it be signed by
the proper officers as set forth above. The seal of the Corporation, or a
facsimile thereof, may be affixed to the stock certificates. The signatures of
officers as above described on any such certificate may be facsimiles if the
certificate is countersigned by a transfer agent or registered by a registrar
both of which may be the Corporation itself or an employee of the Corporation.
Section 2. New Certificates:
All certificates surrendered to the Corporation shall be canceled and no new
certificate shall be issued, except to evidence transfer of stock from the
unissued stock or treasury of the Corporation, or, in the case of a lost
certificate, except upon posting a bond of indemnity in such form and with such
surety or sureties and for such amount as shall be satisfactory to the directors
and upon producing by affidavit or otherwise such evidence of loss or
destruction as the Board may require, until the former certificates for the same
number of shares have been surrendered and canceled.
Section 3. Transfer of Shares:
Shares in the capital stock of the Corporation shall be transferred only on the
books of the Corporation by the holder thereof in person, or by the holder's
attorney, upon surrender and cancellation of certificates for a like number of
shares. The delivery of a certificate of stock of this Corporation to a bona
fide purchaser or pledge for value, together with a written transfer of the same
or a written power of attorney to sell, assign, and transfer the same, signed by
the owner of the certificate, shall be a sufficient delivery to transfer the
title against all persons except the Corporation. No transfer of stock shall be
valid against the Corporation until it shall have been registered upon the books
of the Corporation.
Section 4. Closing of Transfer Books or Provisions for Record Date:
For purposes of determining shareholders entitled to notice of or to vote at any
meeting of shareholders or any adjournment thereof, or entitled to receive
payment of dividends, the transfer books may be closed by the Board of Directors
for a period not exceeding 70 days prior to such action. In lieu of closing the
stock transfer books, the Board of Directors may fix in advance a day not than
10 nor more than 60 days prior to the holding of any such meeting of
shareholders, or payment of dividends, as the day as of which shareholders
entitled to notice of and to vote at such meetings, or to payment of dividends,
as the case may be, shall be determined.
Section 5. Regulations:
The Board of Directors shall have power and authority to take all action they
deem expedient concerning the issue, transfer, and registration of certificates
for shares of the capital stock of the Corporation. The Board of Directors may
appoint a transfer agent and a registrar and may require all stock certificates
to bear the signature of such registrar.
Section 6. Restrictions on Stock:
The Board of Directors may restrict any stock issued by giving the Corporation
or any shareholder "first right of refusal to purchase" the stock, by making the
stock redeemable or by restricting the transfer of the stock under such
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terms and in such manner as the directors may deem necessary and as are not
inconsistent with the Articles of Incorporation or Act. Any stock so restricted
must carry a stamped legend setting out the restriction or conspicuously noting
the restriction and stating where it may be found in the records of the
Corporation.
ARTICLE VI
DIVIDENDS AND FINANCES
Dividends may be declare the directors and paid out of any finds legally
available therefor under the Act, as may be deemed advisable from time to time
by the Board of Directors of the Corporation. Before declaring any dividends,
the Board of Directors may set aside out of net Profits as a reserve fund to
meet contingencies or for other purposes deemed proper and to the best interests
of the Corporation.
Section 2. Monies:
The monies, securities, and other valuable effects of the Corporation shall be
deposited in the name of the Corporation in such banks or trust companies as the
Board of Directors shall designate and shall be drawn out or removed only as may
be authorized by the Board of Directors from time to time.
Section 3. Fiscal Year:
Unless and until the Board of Directors by resolution shall determine otherwise,
the fiscal year shall be the calendar year with the first fiscal year to end
December 31, 2000.
ARTICLE VII
SEAL
The Board of Directors shall provide a corporate seal which shall be in the form
of a circle and shall have inscribed thereon the name of the Corporation and the
words "SEAL, COLORADO," and shall be entrusted in the care of the Secretary of
such other officer of the Corporation as the Board of Directors shall designate.
ARTICLE VIII
NOTICES
Section 1. Requirements:
Whenever a notice shall be required by Act or by these Bylaws, such notice may
be given in writing by depositing the same in the United States mails in a
postpaid, sealed envelope addressed to the person for whom such notice is
intended to his or her home or other address, as the same shall appear on the
stock transfer books of the Corporation. A waiver of any notice in writing,
signed by a shareholder, director, or officer, whether before, at, or after the
time stated in such waiver for holding a meeting, shall be deemed the equivalent
of duly giving such notice.
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Section 2. Waiver:
By attending a meeting, a shareholder: (a) waives objection to lack of notice or
defective notice of such meeting unless the shareholder at the beginning of
the meeting, objects to the holding of the meeting or the transacting of
business at the meeting; (b) waives objection to consideration at such meeting
of a particular matter not within the purpose or purposes described in the
meeting notice unless the shareholder objects to considering the matter when it
is presented.
By attending or participating in a regular or special meeting, a director waives
any required notice of such meeting unless the director, at the beginning of the
meeting, objects to the holding of the meeting or the transacting of business at
the meeting.
Section 3. Ratification:
The ratification or approval in writing of the minutes of any meeting of
shareholders, directors, or officers shall have the same force and effect as if
the ratifying party were present in person and participated in said meeting.
ARTICLE IX
AMENDMENTS
Subject to repeal or change by action of the shareholders, or unless the
shareholders in amending or repeating a particular bylaw expressly provide that
the Board of Directors may not amend or repeal such bylaw, these Bylaws may be
altered, amended, or repealed by resolution of a majority of the Board.
ARTICLE X
INDEMNIFICATION
Section 1. Definitions:
For purposes of this Article X, the following terms shall have the meanings set
forth below:
(a) "Corporation" includes the Corporation and any domestic or foreign
predecessor entity of the Corporation in a merger, consolidation, or other
transaction in which the predecessor's existence ceased upon consummation of the
transaction.
(b) "Director" means an individual who is or was a director of the
Corporation and an individual who, while a director of the Corporation, is or
was serving at tile Corporation's request as a director, officer, partner,
trustee, employee, or agent of any other foreign or domestic corporation or of
any partnership, joint venture, trust, other enterprise, or employee benefit
plan. A director shall be considered to be serving an employee benefit plan at
the Corporation's request if his duties to the Corporation also impose duties on
or otherwise involve services by him to the plan or to participants in or
beneficiaries of the plan.
(c) "Expenses" includes attorney fees.
(d) "Liability" means the obligation to pay a judgment, settlement,
penalty, fine (including an excise tax assessed with respect to an employee
benefit plan), or reasonable expense incurred with respect to a proceeding.
(e) "Official capacity" when used with respect to a director, means
the office of director in the Corporation, and, when used with respect to an
individual other than a director, means the office in the Corporation hold by
the officer or the employment or agency relationship undertaken by the employee
or agent on behalf of the
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Corporation. "Official capacity" does not include service for any other foreign
or domestic corporation or for any partnership, joint venture, trust, other
enterprise, or employee benefit plan.
(f) "Party" includes an individual who was, is, or is threatened to
be made a named defendant or respondent in a proceeding.
(g) "Proceeding" means any threatened, pending, or completed action,
suit, or proceeding, whether civil, criminal, administrative, or investigative
and whether formal or informal.
Section 2. Permissive Indemnification:
(a) Except as provided in paragraph (d) of this Section 2, the
Corporation may indemnify against liability incurred in any proceeding an
individual made a party to the proceeding because he is or was a director if:
(i) he conducted himself in good faith; (ii) he reasonably believed: (a) in the
case of conduct in his official capacity with the Corporation, that his conduct
was in the Corporation's best Interests; or (b) in all other cases, that his
conduct was at least not opposed to the Corporation's best interest; and (iii)
in the case of any criminal proceeding, he had no reasonable cause to believe
his conduct was unlawful.
(b) A director's conduct with respect to an employee benefit plan for
a purpose he reasonably believed to be in the interest of the participants in or
beneficiaries of the plan is conduct that satisfies the requirements of
subparagraph (8) of subparagraph (ii) of paragraph (a) of this Section 2. A
director's conduct with respect to any employee benefit plan for a purpose that
did not reasonably believe to be in the interests of the participants in or
beneficiaries of the plan shall be deemed not to satisfy the requirements of
subparagraph (i) of paragraph (a) of this Section 2.
(c) The termination of any proceeding by judgment, order, settlement,
or conviction, or upon a plea of nolo contendere or its equivalent, is not of
itself determinative that the individual did not meet the standard of conduct
set forth in paragraph (a) of this Section 2.
(d) The Corporation may not indemnify a director under this Section 2
either: (i) in connection with a proceeding by or in the right of the
Corporation in which the director was adjudged liable to the Corporation; or
(ii) in connection with any proceeding charging improper personal benefit to the
director, whether or not involving action in his official capacity, in which he
was adjudged liable on the basis that personal benefit was improperly received
by him.
(e) Indemnification permitted under this Section 2 in connection with a
proceeding by or in the right of the Corporation is limited to reasonable
expenses incurred in connection with this proceeding.
Section 3. Mandatory Indemnification:
Unless limited by the Articles of Incorporation, the Corporation shall be
required to indemnify a person who is or was a director of the Corporation and
who was wholly successful, on the merits or otherwise, in defense of any
proceeding to which he was a party against reasonable expenses incurred by him
in connection with the proceeding.
Section 4. Court-Ordered Indemnification:
Unless limited by the Articles of Incorporation, a director who is or was a
party to a proceeding may apply for indemnification to the court conducting the
proceeding or to another court of competent jurisdiction. On receipt of an
application, the court, after giving any notice the court considers necessary,
may order indemnification in the following manner:
(a) If it determines the director is entitled to mandatory
indemnification under Section 3, the court shall order indemnification, in which
case the court shall also order the Corporation to pay the directors' reasonable
expenses incurred to obtain court-ordered indemnification.
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(b) If it determines that the director is fairly and reasonably
entitled to indemnification in view of all the relevant circumstances, whether
or not the director met the standard of conduct set forth in paragraph (a) of
Section 2 or was adjudged liable in the circumstances described in paragraph (d)
of Section 2, the court may order such indemnification as the court deems
proper: except that the indemnification with respect to any proceeding in which
liability shall have been adjudged in the circumstances described in paragraph
(d) of Section 2 is limited to reasonable expenses incurred.
Section 5. Determination:
(a) The Corporation may not indemnify a director under Section 2 unless
authorized in the specific case after a determination has been made that
indemnification of the director is permissible in the circumstances because he
has met the standard of conduct set forth in paragraph (a) of Section 2.
(b) The determination required to be made by paragraph (a) of this
Section 5 shall be made: (i) by the Board of Directors by a majority vote of a
quorum, which quorum shall consist of directors not parties to the proceeding;
or (ii) if a quorum cannot be obtained, by a majority vote of a committee of the
Board designated by the Board, which committee shall consist of two or more
directors not parties to the proceeding; except that directors who are parties
to the proceedings may participate in the designation of directors for the
committee.
(c) If the quorum cannot be obtained or the committee cannot be
established under paragraph (b) of this Section 5, or even it a quorum is
obtained or a committee designated if such quorum or committee so directs, the
determination required to be made by paragraph (a) of this Section 5 shall be
made: (i) by independent legal counsel selected by a vote of the Board of
Directors or the committee in the manner specified in subparagraph (i) or (ii)
of paragraph (b) of this Section 5 or, it a quorum of the full Board cannot be
obtained and a committee cannot be established, by independent legal counsel
selected by a majority vote of the full Board; or (ii) by the shareholders.
(d) Authorization of indemnification and evaluation as to
reasonableness of expenses shall be made in the same manner as the determination
that indemnification is permissible: except that, if the determination that
indemnification is permissible is made by independent legal counsel,
authorization of indemnification and evaluation as to reasonableness of expenses
shall be made by the body that selected said counsel.
Section 6. Payment in Advance:
(a) The Corporation may pay for or reimburse the reasonable expenses
incurred by a director who is a party to the proceeding in advance of the final
disposition of the proceeding if: (i) the director furnishes the Corporation a
written affirmation of his good-faith belief that he has met the standard of
conduct described in subparagraph (i) of paragraph (a) of Section 2; (ii) the
director furnishes the Corporation a written undertaking, executed personally or
on his behalf, to repay the advance if it is determined that he did not meet
such standard of conduct; (iii) a determination is made that the facts then
known to those making the determination would not preclude indemnification under
this Section 6.
(b) The undertaking required by subparagraph (ii) of paragraph (a) of
this section 6 shall be an unlimited general obligation of the director, but
need not be secured and may be accepted without reference to financial ability
to make repayment.
Section 7. Indemnification of Officers, Employees and Agents:
Unless limited by the Articles of Incorporation:
(a) An officer of the Corporation who is not a director is entitled to
mandatory indemnification pursuant to Section 3 of this Article X and is
entitled to apply for court-ordered indemnification pursuant to Section 4 of
this Article X in each case to the same extent as a director;
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(b) The Corporation may indemnity and advance expenses pursuant to
Section 6 of this Article X to an officer, employee, or agent of the Corporation
who is not a director to the same extent as a director; and
(c) The Corporation may indemnify and advance expenses to an officer,
employee, or agent of the Corporation who is not a director to a greater extent
if consistent with law and if provided for by its Articles of Incorporation,
Bylaws, resolution of its shareholders or directors, or in a contract.
Section 8. Insurance:
The Corporation may purchase and maintain insurance on behalf of an
individual who is or was a director, officer, employee, fiduciary, or agent of
the Corporation and who, while a director, officer, employee, fiduciary or agent
of the Corporation, is or was serving at the request of the Corporation as a
director, officer, partner, trustee, employee, fiduciary, or agent of any other
foreign or domestic corporation or of any partnership joint venture, trust,
other enterprise, or employee benefit plan against any liability asserted
against or incurred by him in any such capacity or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability under the provisions of this section.
Section 9. Notice to Shareholders:
Any indemnification of or advance of expenses to a director in accordance with
this Article X, if arising out of a proceeding by or on behalf of the
Corporation, shall be reported in writing to the shareholders with or before the
notice of the next shareholders' meeting.
CERTIFICATE
I do hereby certify that I am President of Evergreen Network.com Inc., and I do
hereby certify that the above and foregoing Bylaws were duly adopted as the
Bylaws of said Corporation by the Unanimous Written Consent of the Board of
Directors,
Dated: February 14, 2000 -------------------------------------
Howard E. Tooke
President, Evergreen
Network.com Inc.
(SEAL)
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