EXHIBIT 3.5
BY-LAWS
OF AERIES HEALTHCARE CORPORATION
ARTICLE I
OFFICES
Section 1. REGISTERED OFFICE. The registered office of Aeries
Healthcare Corporation (the "Corporation") in the State of Delaware shall be
located at Corporation Trust Center, 1209 Orange Street, Wilmington, Delaware.
The registered agent of the Corporation at the registered office is The
Corporation Trust Company.
Section 2. OTHER OFFICES. The Corporation may also have offices at such
other places, both within and without the State of Delaware, as the Board of
Directors of the Corporation (the "Board" or "Board of Directors") may from time
to time determine or as the business of the Corporation may require.
ARTICLE II
STOCKHOLDERS
Section 1. PLACE OF MEETING. All meetings of the stockholders for the
election of directors and for any other purpose may be held at such time and
place, within or without the State of Delaware, as shall be stated in the notice
of the meeting or in a duly executed waiver of notice thereof.
Section 2. ANNUAL MEETING. Annual meetings of stockholders shall be
held in the month of May or June, on such day and at such time as the Board of
Directors shall designate, at which the stockholders shall elect a Board of
Directors and transact such other business as may properly be brought before the
meeting.
Section 3. NOTICE OF ANNUAL MEETING. Notice of the annual meeting shall
be given by mailing, not more than sixty (60) days nor less than ten (10) days
prior thereto, a written notice stating the time and place thereof, directed to
each stockholder of record entitled to vote at the meeting at his, her or its
address as the same appears upon the records of the Corporation.
Section 4. LIST OF STOCKHOLDERS. At least ten (10) prior to each annual
or special meeting of the stockholders, the officer who has charge of the stock
ledger of the Corporation shall prepare and make a complete list of the
stockholders entitled to vote at said meeting, which shall be arranged in
alphabetical order and include the address of and the number of shares
registered in the name of each stockholder. The list shall be produced and
available for examination for a period of
at least ten (10) days prior to a meeting. Further, the list shall be produced
and kept at the time and place of the meeting during the whole time thereof and
may be inspected by any stockholder who may be present.
Section 5. SPECIAL MEETINGS. Special meetings of the stockholders, for
any purpose or purposes, may be called by the Chairman of the Board or the
President, and shall be called by the President or Secretary at the request in
writing of a majority of the Board of Directors. Such request shall state the
purpose or purposes of the proposed meeting.
Section 6. NOTICE OF SPECIAL MEETING. Written or telegraphic notice of
a special meeting of stockholders, stating the time, place and object thereof,
shall be given to each stockholder entitled to vote thereat, not more than sixty
(60) nor less than ten (10) days before the date fixed for the meeting.
Section 7. BUSINESS TRANSACTED AT A SPECIAL MEETING. Business
transacted at any special meeting of stockholders shall be limited to the
purposes stated in the notice.
Section 8. QUORUM. Except as otherwise provided in the Certificate of
Incorporation of the Corporation (the "Certificate of Incorporation"), a
majority of the issued and outstanding shares of the Corporation's common stock,
par value $.01 per share ("Common Stock"), present in person or by proxy, shall
constitute a quorum for the transaction of business at any meeting of the
stockholders; provided, that when a specified matter is required to be voted on
by a class or series of capital stock, voting as a separate class, the holders
of a majority of the issued and outstanding shares of such class or series shall
constitute a quorum for the transaction of business with respect to such matter.
Section 9. METHOD OF VOTING. Each holder of Common Stock shall, at
every meeting of the stockholders, be entitled to one vote for each share of
Common Stock held by such stockholder.
Every stockholder entitled to vote at a meeting of stockholders or to
express consent without a meeting may authorize another person or persons to act
for him, her or it by proxy. Every proxy shall be executed in writing by the
stockholder or his, her or its agent, except that a proxy may be given by a
stockholder or his, her or its agent by telegram or cable or its equivalent.
Unless it is coupled with an interest, a proxy shall be revocable at will. A
proxy shall not be revoked by the death or incapacity of a stockholder but such
proxy shall continue in force until revoked by the personal representative or
guardian of the stockholder. The presence at any meeting of any stockholder who
has given a proxy shall not revoke such proxy unless the stockholder shall file
written notice of such revocation with the secretary of the meeting prior to the
voting of such proxy.
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A person named in a proxy as the attorney or agent of a stockholder
may, if the proxy so provides, substitute another person to act in his, her or
its place, including any other person named as an attorney or agent in the same
proxy. The substitution shall not be effective until an instrument effecting it
is filed with the Secretary of the Corporation.
Section 10. ACTION BY STOCKHOLDERS WITHOUT A MEETING. Subject to the
provisions of Section 228 of the Delaware General Corporation Law, whenever the
vote of stockholders at a meeting thereof is required or permitted to be taken
in connection with any corporate action by any provision of the Delaware General
Corporation Law or of the Certificate of Incorporation, the meeting and the vote
of stockholders may be dispensed with and the action may be taken without a
meeting upon the written consent of stockholders who would have been entitled to
cast the minimum number of votes that would be necessary to authorize such
action at a meeting at which all shares entitled to be voted thereat were
present and voted.
Section 11. CONDUCT AT MEETINGS. At each meeting of stockholders, the
Chairman of the Board of Directors or in his or her absence the President of the
Corporation or in his or her absence any Vice President of the Corporation or in
his or her absence a chairman chosen by the vote of a majority in interest of
the stockholders present in person or represented by proxy and entitled to vote
thereat, shall act as chairman. The Secretary or in his or her absence an
Assistant Secretary or in the absence of the Secretary and all Assistant
Secretaries a person whom the chairman of the meeting shall appoint shall act as
secretary of the meeting and keep a record of the proceedings thereof. The Board
of Directors shall be entitled to make such rules or regulations for the conduct
of meetings of stockholders as it shall deem necessary, appropriate or
convenient. Subject to such rules and regulations, the chairman shall have the
authority to prescribe such rules, regulations and procedures and to do all such
acts as, in the judgment of such chairman, are necessary, appropriate or
convenient for the proper conduct of the meeting, including, without limitation,
establishing an agenda or order of business for the meeting, rules and
procedures for maintaining order at the meeting and the safety of those present,
limitations on participation in such meeting to stockholders of record of the
Corporation and their duly authorized and constituted proxies, and such other
persons as the chairman shall permit, restrictions on entry at the meeting after
the time fixed for the commencement thereof, limitations on the time allotted to
questions or comments by participants and regulation of the opening and closing
of the polls for balloting on matters which are to be voted on by ballot. The
chairman shall have absolute authority over matters of procedure and there shall
be no appeal from the ruling of the chairman. The chairman may rule that a
resolution, nomination or motion not be submitted to the stockholders for a vote
unless seconded by a stockholder or a proxy for a stockholder. The chairman may
require that any person who is neither a bona fide stockholder nor a proxy for a
bona fide stockholder leave the meeting, and upon the refusal of a stockholder
to comply with a procedural ruling of the chairman which the chairman deems
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necessary for the proper conduct of the meeting, may require that such
stockholder leave the meeting. The chairman may, on his or her own motion,
summarily adjourn any meeting for any period he or she deems necessary if he or
she rules that orderly procedures cannot be maintained at the meeting. Unless,
and to the extent, determined by the Board of Directors or the chairman of the
meeting, meetings of stockholders shall not be required to be held in accordance
with rules of parliamentary procedure.
Section 12. PROCEDURE NECESSARY TO BRING BUSINESS BEFORE AN ANNUAL
MEETING. To be properly brought before an annual meeting of stockholders,
business must be either (a) specified in the notice of meeting (or any
supplement thereto) given by or at the direction of the Board of Directors, (b)
properly brought before the meeting by or at the direction of the Board, or (c)
properly brought before the meeting by a stockholder. In addition to any other
applicable requirements, for business to be properly brought before an annual
meeting by a stockholder, the stockholder must have given timely notice thereof
in writing, either by personal delivery or by United States mail, postage
prepaid, to the Secretary of the Corporation not less than one hundred and
twenty (120) days in advance of the date of the Corporation's proxy statement
released to stockholders in connection with the previous year's annual meeting
of stockholders; provided, however, that if the Corporation did not release a
proxy statement in connection with the previous year's annual meeting then the
stockholder must give such notice not later than one hundred and twenty (120)
days prior to the anniversary date of the immediately preceding annual meeting.
A stockholder's notice to the Secretary shall set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a brief description
of the business desired to be brought before the annual meeting and the reasons
for conducting such business at the annual meeting, (ii) the name and record
address of the stockholder proposing such business, (iii) the class and number
of shares of the Corporation which are beneficially owned by the stockholder,
and (iv) any material interest of the stockholder in such business.
Notwithstanding anything in these By-laws to the contrary, no business
shall be conducted at the annual meeting except in accordance with the
procedures set forth in this Section 12 of Article II and any other applicable
requirements; provided, however, that nothing in this Section 12 of Article II
shall be deemed to preclude discussion by any stockholder of any business
properly brought before the annual meeting.
The chairman of an annual meeting shall, if the facts warrant,
determine and declare to the meeting that business was not properly brought
before the meeting in accordance with the provisions of this Section 12 of
Article II or any other applicable requirements, which determination shall be
conclusive, and, as a result, any such business shall not be transacted.
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ARTICLE III
DIRECTORS
Section 1. NUMBER AND ELECTION OF DIRECTORS. The number of directors
which shall constitute the whole Board shall be not less than one (1) nor more
than ten (10) directors. The Board, upon adoption of these By-laws, shall
consist of one (1) director, and thereafter the number of directors which shall
constitute the whole Board may be increased or decreased by resolution of the
Board of Directors, but shall in no case be less than one (1) director. The
directors shall be elected at the annual meeting of the stockholders, except as
provided in Section 9 of this Article III, and each director elected shall hold
office until his or her successor is elected and qualifies. Directors need not
be stockholders.
Section 2. REGULAR MEETINGS. Regular meetings of the Board may be held
on five (5) days written notice, at such time as shall be from time to time
determined by the Chairman of the Board, or the President. Written notice for
any such meeting shall state the place, date and hour of the meeting and shall
be delivered either personally or by first class mail or overnight courier
service.
Section 3. SPECIAL MEETINGS. Special meetings of the Board of Directors
may be called by the Chairman of the Board or the President and shall be called
by the President or Secretary at the request in writing of a majority of the
directors then in office. Written notice of any special meeting shall be given,
either personally or by first class mail or overnight courier service, to each
director at least two (2) days prior to the date thereof.
Section 4. PLACE OF MEETING; WAIVER OF NOTICE. Meetings of the Board of
Directors shall be held at such place as shall be designated in the notice of
meeting if notice is required. Notice of any meeting, if required, need not be
given to any director who signs a waiver of notice before or after the meeting.
The attendance of any director at any meeting without the director protesting
prior to the conclusion of such meeting the lack of notice thereof shall
constitute a waiver of notice by such director.
Section 5. QUORUM. Except as otherwise provided in the Certificate of
Incorporation, a majority of the directors then in office shall constitute a
quorum for the transaction of business at any meeting of the Board of Directors.
Section 6. MANNER OF ACTING. Except as otherwise provided in the
Certificate of Incorporation or herein, the act of a majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
Section 7. ACTION WITHOUT A MEETING. Any action required or permitted
to be taken by the Board of Directors or by a committee thereof may be taken
without a meeting if, prior to such action, all of the members of the Board or
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committee consent in writing to a resolution authorizing the action. Such
written consents may be executed in counterparts, and shall be filed with the
minutes of the Corporation.
Section 8. TELEPHONIC ATTENDANCE AT MEETING. Any or all directors may
participate in a meeting of the Board of Directors or a committee of the Board
by means of conference telephone or any means of communication by which all
persons participating in the meeting are able to hear each other.
Section 9. VACANCIES. If the office of any director becomes vacant for
any reason, such vacancy shall be filled by a majority vote of the directors
remaining in office.
Section 10. CHAIRMAN OF THE BOARD. A Chairman of the Board of Directors
may be elected by the Board of Directors from among its members.
Section 11. COMPENSATION OF DIRECTORS. The directors may be paid their
expenses, if any, relating to their attendance at meetings of the Board of
Directors, and directors who are not full-time employees of the Corporation may
be paid a fixed sum for attendance at meetings of the Board of Directors or a
stated salary as a director. No such payment shall preclude any director from
serving the Corporation in any other capacity and receiving compensation
therefor. Members of special or standing committees may be allowed like
compensation for attending committee meetings.
Section 12. COMMITTEES OF DIRECTORS. The Board of Directors may, by
resolution passed by a majority of the Board, designate one or more committees
of the Board of Directors, including an executive committee, each committee to
consist of two (2) or more directors of the Corporation. The Board may designate
one or more directors as alternative members of any committee who may replace
any absent or disqualified member at any meeting of the committee. Any such
committee, to the extent provided in the enabling resolution and permitted under
Section 141 the Delaware General Corporation Law, shall have and may exercise
the powers of the Board of Directors in the management of the business and
affairs of the Corporation, and may authorize the seal of the Corporation to be
affixed to all papers which may require it. Such committee or committees shall
have such name or names as may be determined from time to time by resolution
adopted by the Board of Directors. Each committee shall keep regular minutes of
its meetings and report them to the Board of Directors when required.
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ARTICLE IV
OFFICERS
Section 1. OFFICERS. The Corporation's officers shall be a President, a
Treasurer, a Secretary and, if desired, one or more Vice Presidents. The
officers shall be elected by the Board of Directors.
Section 2. TERM; REMOVAL. The officers of the Corporation shall hold
office until their successors are chosen and qualify. The Board of Directors may
remove any officer at any time by the affirmative vote of a majority of the
directors at any meeting of the Board at which there is a quorum, without the
necessity of specifying any cause therefor and without any prior notice of such
action to the person removed.
Section 3. VACANCIES. Any vacancy in the Office of the President or any
other office shall be filled by the Board of Directors.
Section 4. PRESIDENT. The President shall, subject to the control of
the Board of Directors, supervise and control all of the business and affairs of
the Corporation. All other officers shall be subject to the authority and
supervision of the President. The President may enter into and execute in the
name of the Corporation contracts or other instruments not in the regular course
of business which are authorized, either generally or specifically, by the Board
of Directors. The President shall have the general powers and duties of
management usually vested in the office of the president of a corporation.
Section 5. VICE PRESIDENTS. The Board of Directors may appoint one or
more Vice Presidents, each of whom shall perform such duties and possess such
powers as shall be assigned him or her by the Board of Directors.
Section 6. TREASURER AND ASSISTANT TREASURER. The Treasurer shall have
charge and custody of, and be responsible for, all funds and securities of the
Corporation, shall keep or cause to be kept regular books of account for the
Corporation and shall perform such other duties and possess such other powers as
are incident to the office of the treasurer of a corporation or as shall be
assigned to the Treasurer by the Board of Directors. The Assistant Treasurer, or
if there shall be more than one, the Assistant Treasurers, in the order
determined by the Board of Directors, shall, in the absence or disability of the
Treasurer, perform the duties and exercise the powers of the Treasurer set forth
herein and as the Board of Directors from time to time may prescribe.
Section 7. SECRETARY AND ASSISTANT SECRETARY. The Secretary shall cause
notices of all meetings to be served as prescribed in these By-laws or by
statute, shall keep or cause to be kept the minutes of all meetings of the
stockholders and the Board of Directors, shall have charge of the corporate
records
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and seal of the Corporation and shall keep a register of the post-office address
of each stockholder which shall be furnished to the Secretary by such
stockholder. The Secretary shall perform such other duties and possess such
other powers as are incident to the office of the secretary of a corporation or
as are assigned by the Board of Directors. The Assistant Secretary, or if there
shall be more than one, the Assistant Secretaries, in the order determined by
the Board of Directors, shall, in the absence or disability of the Secretary,
perform the duties and exercise the powers of the Secretary set forth herein and
as the Board of Directors from time to time may prescribe.
Section 8. SUBORDINATE OFFICERS AND AGENTS. The Board of Directors may
elect or appoint such other officers and agents as the Board shall deem
necessary or desirable, who shall hold their offices for such terms and shall
exercise such powers and perform such duties as shall be determined from time to
time by the Board of Directors.
ARTICLE V
EXECUTION OF DOCUMENTS
Section 1. COMMERCIAL PAPER AND CONTRACTS. All checks, notes, drafts
and other commercial paper of the Corporation shall be signed by the President
or Treasurer of the Corporation or by such other person or persons as the Board
of Directors may from time to time designate.
Section 2. OTHER INSTRUMENTS. All contracts, deeds, mortgages and other
instruments shall be executed by the President, any Vice President or any such
other person or persons as the Board of Directors may from time to time
designate, and, if necessary, by the Secretary or any Assistant Secretary.
ARTICLE VI
FISCAL YEAR
The fiscal year of the Corporation shall be the calendar year.
ARTICLE VII
CERTIFICATES REPRESENTING SHARES
Certificates representing shares of capital stock of the Corporation
shall be in such form as shall be determined by the Board of Directors and shall
be executed by the President or any Vice President and by the Secretary or the
Treasurer, unless the Board of Directors shall direct otherwise.
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ARTICLE VIII
RECORD DATE
For the purpose of determining the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or to
express consent to or dissent from any proposal without any meeting or for the
purpose of determining stockholders entitled to receive payment of any dividend
or allotment of any right, or in order to make a determination of stockholders
for any other purpose, the Board of Directors shall fix, in advance, a date as
the record date for any such determination of stockholders. Such date shall not
be more than sixty (60) nor less than ten (10) days before the date of such
meeting, nor more than sixty (60) days prior to any other action or event to
which it relates. When a determination of stockholders of record for a
stockholders' meeting has been made as provided in this Article VIII, such
determination shall apply to any adjournment thereof, unless the Board of
Directors fixes a new record date for the adjourned meeting.
ARTICLE IX
DIVIDENDS
The Board of Directors may from time to time declare, and the
Corporation may pay, dividends or make other distributions on its outstanding
shares of capital stock in the manner and upon the terms and conditions provided
by the Certificate of Incorporation and by statute.
ARTICLE X
AMENDMENT
As provided in the Certificate of Incorporation, these By-laws may be
altered, amended or repealed, or new by-laws may be adopted by the Board of
Directors, at any regular or special meeting of the Board of Directors. These
By-laws, or any new By-laws adopted by the Board, may also be altered, amended,
or repealed, or new by-laws may be adopted, by the holders of Common Stock, at
any annual or special meeting of the stockholders if notice of such alteration,
amendment, repeal or adoption of new by-laws is contained in the notice of such
meeting.
ARTICLE XI
INDEMNIFICATION
Section 1. RIGHT TO INDEMNIFICATION. Each person who was or is made a
party or is threatened to be made a party to or is otherwise involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "Proceeding"), by reason of the fact:
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a) that he or she is or was a director or officer of the
Corporation, or
b) that he or she, being at the time a director or
officer of the Corporation, is or was serving at the request of the
Corporation as a director, trustee, officer, employee or agent of
another corporation or of a partnership, joint venture, trust or other
enterprise, including service with respect to an employee benefit plan
(collectively, "Another Enterprise" or "Other Enterprise"),
whether either in case (a) or in case (b) the basis of such Proceeding is
alleged action or inaction (x) in an official capacity as a director or officer
of the Corporation, or as a director, trustee, officer, employee or agent of
such Other Enterprise, or (y) in any other capacity related to the Corporation
or such Other Enterprise while so serving as a director, trustee, officer,
employee or agent, shall be indemnified and held harmless by the Corporation to
the fullest extent permitted under Section 145 of the Delaware General
Corporation Law (or any successor provision or provisions) as the same exists or
may hereafter be amended (but, in the case of any such amendment, with respect
to actions taken prior to 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 without
limitation attorneys' fees, judgments, fines, excise taxes assessed in
connection with an employee benefit plan or penalties and amounts paid in
settlement) reasonably incurred or suffered by such person in connection
therewith. The persons indemnified by this Article XI are hereinafter referred
to as "indemnitees." Such indemnification as to such alleged action or inaction
shall continue as to an indemnitee who has after such alleged action or inaction
ceased to be a director of officer of the corporation, or director, officer,
employee or agent of such Other Enterprise; and shall inure to the benefit of
the indemnitee's heirs, executors and administrators. Notwithstanding the
foregoing, except as may be provided in the Certificate of Incorporation or by
the Board of Directors, the Corporation shall not indemnify any such indemnitee
in connection with a proceeding (or portion thereof) initiated by such
indemnitee (but this prohibition shall not apply to a counterclaim, cross-claim
or third-party brought by the indemnitee in any proceeding) unless such
proceeding (or portion thereof) was authorized by the Board of Directors. The
right to indemnification conferred in this Article XI: (i) shall be a contract
right; (ii) shall not be affected adversely to any indemnitee by any amendment
of these By-laws with respect to any action or inaction occurring prior to such
amendment; and (iii) shall, subject to any requirements imposed by law and the
Certificate of Incorporation, include the right to be paid by the Corporation
the expenses incurred in defending any such proceeding in advance of its final
disposition.
Section 2. RELATIONSHIP TO OTHER RIGHTS AND PROVISIONS CONCERNING
INDEMNIFICATION. The rights to indemnification and to the advancement of
expenses conferred in this Article XI shall not be exclusive of any other right
which
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any person may have or hereafter acquire under these By-laws or under any
statute, agreement, vote of stockholders or disinterested directors or
otherwise. The Certificate of Incorporation may contain such other provisions
concerning indemnification, including provisions specifying reasonable
procedures relating to and conditions to the receipt by indemnitees of
indemnification. In the event of a conflict between the indemnification
provision of these By-laws and an indemnification provision of the Certificate
of Incorporation, the Certificate of Incorporation shall prevail.
Section 3. AGENTS AND EMPLOYEES. 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 (or any person serving at the Corporation's request as a
director, trustee, officer, employee or agent of Another Enterprise) or to
persons who are or were a director, officer, employee or agent of any of the
Corporation's affiliates, predecessor or subsidiary corporations or of a
constituent corporation absorbed by the Corporation in a consolidation or merger
or who is or was serving at the request of such affiliate, predecessor or
subsidiary corporation or of such constituent corporation as a director,
officer, employee or agent of Another Enterprise, in each case as determined by
the Board of Directors to the fullest extent of the provisions of this Article
XI in cases of the indemnification and advancement of expenses of directors and
officers of the Corporation, or to any lesser extent (or greater extent, if
permitted by law) determined by the Board of Directors.
ARTICLE XII
LOANS TO AND GUARANTEES OF OBLIGATIONS OF OFFICERS,
DIRECTORS AND EMPLOYEES
This Corporation may lend money to, or guarantee any obligation of, or
otherwise assist, any officer or other employee of this Corporation or of any
subsidiary, even if said officer or other employee is also a director of this
Corporation or of any subsidiary, whenever, in the judgement of the Board of
Directors, such loan, guarantee or assistance may reasonably be expected to
benefit the Corporation. Such loan, guarantee or assistance, if made to an
officer or employee who is also a director, must be authorized by a majority of
the directors then in office. Any such loan, guarantee or other assistance may
be made with or without interest, and may be unsecured, or secured in such
manner as the Board of Directors shall approve, including, without limitation, a
pledge of shares of the Corporation, and may be made upon such other terms and
conditions as the Board may determine. The proceeds of any such loan may be
applied to the purchase of shares of the Corporation and any shares so purchased
shall be deemed to be fully paid and non-assessable.
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ARTICLE XIII
The Corporate Seal shall have inscribed thereon the following: "Aeries
Healthcare Corporation, 1999 Incorporated, Delaware." The seal may be used by
causing it or a facsimile thereof to be impressed or affixed or reproduced or
otherwise.
ARTICLE XIV FORCE AND EFFECT OF BY-LAWS
These By-laws are subject to the provisions of the law of the State of
Delaware and the Corporation's Certificate of Incorporation, as it may be
amended from time to time. If any provision of these By-laws is inconsistent
with a provision in the Delaware statutes or the Certificate of Incorporation,
the provision of the Delaware statutes or the Certificate of Incorporation shall
govern.
Adopted as of: September 9, 1999
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