Common use of Certificate of Incorporation and Bylaws; Records Clause in Contracts

Certificate of Incorporation and Bylaws; Records. Avatech and Merger Sub have delivered or made available to Merger Partner accurate and complete copies of: (a) Avatech’s certificate of incorporation and bylaws, including all amendments thereto, and the certificate of incorporation and bylaws of Merger Sub; (b) the stock records of Avatech and Merger Sub; and (c) except as Disclosed in Part 3.2(c) of the Avatech Disclosure Schedule, the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of Avatech and Merger Sub, the board of directors of Avatech and Merger Sub and all committees of the board of directors of Avatech and Merger Sub since January 1, 2005 (the items described in (a) and (b) above, collectively, the “Avatech Constituent Documents”). Since November 1, 2007, there have been no formal meetings or actions taken by written consent or otherwise without a meeting of the stockholders of Avatech or Merger Sub, the board of directors of Avatech or Merger Sub or any committee of the board of directors of Avatech or Merger Sub that are not fully reflected in the minutes and other records delivered or made available to Merger Partner pursuant to clause (c) above. There has not been any violation in any material respect of the Avatech Constituent Documents, and Avatech has not taken any action that is inconsistent in any material respect with the Avatech Constituent Documents. The books of account, stock records, minute books and other records of Avatech are accurate, up to date and complete in all material respects, and have been maintained in accordance with prudent business practices.

Certificate of Incorporation and Bylaws; Records. Avatech and Merger Sub have Except as otherwise disclosed on Part 2.1(e)(ii) of the Company Disclosure Schedule, the Company has delivered or made available to Merger Partner the Parent accurate and complete copies of: (a) Avatech’s certificate the Certificate of incorporation Incorporation and bylawsBylaws (or similar organizational documents), including all amendments thereto, and thereto of each of the certificate of incorporation and bylaws of Merger SubAcquired Companies; (b) the stock records of Avatech and Merger Subeach of the Acquired Companies; and (c) except as Disclosed in Part 3.2(c) of the Avatech Disclosure Schedule, the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of Avatech each of the Acquired Companies and Merger Sub, the board of directors of Avatech and Merger Sub and all committees each of the board of directors of Avatech and Merger Sub since January 1, 2005 Acquired Companies (the items described in (a), (b) and (bc) above, collectively, the “Avatech Company Constituent Documents”)) that are in its possession. Since November 1, 2007, there There have been no formal meetings or actions taken by written consent or otherwise without a meeting other proceedings of the stockholders of Avatech the Acquired Companies or Merger Sub, the board of directors of Avatech or Merger Sub or any committee of the board of directors of Avatech or Merger Sub Acquired Companies that are not fully reflected in the minutes and other records delivered or made available Company Constituent Documents, except for matters which are not required to Merger Partner pursuant to clause (c) abovebe reflected under the applicable laws. There has not been any violation in any material respect of the Avatech Company Constituent Documents, and Avatech except as otherwise disclosed on Part 2.1(e)(ii) of the Company Disclosure Schedule, none of the Acquired Companies has not taken any action that is inconsistent in any material respect with the Avatech Company Constituent Documents. The Except as otherwise disclosed on Part 2.1(e)(ii) of the Company Disclosure Schedule, the books of account, stock records, minute books and other records of Avatech each of the Acquired Companies are accurate, up to up-to-date and complete in all material respects, and have been maintained in accordance with Legal Requirements and prudent business practices.

Certificate of Incorporation and Bylaws; Records. Avatech Replidyne and Merger Sub have delivered or made available to Merger Partner the Company accurate and complete copies of: (a) AvatechReplidyne’s certificate Certificate of incorporation Incorporation and bylawsBylaws, and the Articles of Incorporation and Bylaws of Merger Sub, in each case including all amendments thereto, and the certificate of incorporation and bylaws of Merger Sub; (b) the stock records of Avatech Replidyne and Merger Sub; and (c) except as Disclosed in Part 3.2(c) of the Avatech Disclosure Schedule, the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of Avatech and Merger Substockholders, the board boards of directors of Avatech and Merger Sub and all committees of the board boards of directors of Avatech Replidyne and Merger Sub since January 1, 2005 (the items described in (a) and (b) above, collectively, the “Avatech Replidyne Constituent Documents”). Since November 1, 2007, there There have been no formal meetings or actions taken by written consent or otherwise without a meeting of the stockholders of Avatech Replidyne or Merger Sub, the board of directors of Avatech Replidyne or Merger Sub or any committee of the board of directors of Avatech Replidyne or Merger Sub that are not fully reflected in the minutes and other records delivered or made available to Merger Partner the Company pursuant to clause (c) above. There has not been any violation in any material respect of the Avatech Replidyne Constituent Documents, and Avatech Replidyne has not taken any action that is inconsistent in any material respect with the Avatech Replidyne Constituent Documents. The Except as set forth in Part 3.2 to the Replidyne Disclosure Schedule, the books of account, stock records, minute books and other records of Avatech Replidyne are accurate, up to date and complete in all material respects, and have been maintained in accordance with prudent business practices.

Certificate of Incorporation and Bylaws; Records. Avatech and Merger Sub have The Company has delivered or made available to Merger Partner the Purchasers accurate and complete (through the date hereof) copies of: (ai) Avatech’s the certificate of incorporation and bylawsbylaws (or, in the case of a limited liability company, the certificate of formation and limited liability company operating agreement, or similar organizational documents), including all amendments thereto, of the Company and each of the certificate of incorporation and bylaws of Merger SubSubsidiaries; (bii) the stock equity records of Avatech the Company and Merger Subeach of the Subsidiaries; and (ciii) except as Disclosed in Part 3.2(c) of the Avatech Disclosure Schedule, the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders holders of Avatech and Merger Subsecurities of the Company or any of its Subsidiaries, the board of directors or board of Avatech and Merger Sub managers, as applicable, of each of the Companies and all committees of the board of directors or board of Avatech and Merger Sub since January 1managers, 2005 as applicable, of each of the Companies (the items described in the foregoing clauses “(a) i),” “(ii)” and “(b) above, collectively, iii)” of this Section 2.2 being collectively referred to herein as the “Avatech Constituent Company Documents”). Since November 1, 2007, there There have been no formal meetings held of, or corporate actions taken by written consent or otherwise without a meeting by, the equityholders of any of the stockholders of Avatech or Merger SubCompanies, the board of directors or board of Avatech or Merger Sub managers, as applicable, of any of the Companies or any committee of the board of directors or board of Avatech or Merger Sub managers, as applicable, of any of the Companies that are not fully reflected in the minutes and other records delivered or made available to Merger Partner pursuant to clause (c) aboveCompany Documents. There has not been any violation in of any material respect of the Avatech Constituent Company Documents, and Avatech at no time has not any of the Companies taken any action that is inconsistent in any material respect with the Avatech Constituent Company Documents. The books of account, stock equity records, minute books and other records of Avatech each of the Companies are accurate, up to up-to-date and complete in all material respects, and have been maintained in accordance with Legal Requirements and prudent business practices.

Certificate of Incorporation and Bylaws; Records. Avatech Ethos and Merger Sub have delivered or made available to Merger Partner the Company accurate and complete copies of: (a) AvatechEthos’s certificate Articles of incorporation Incorporation, annexed hereto as Exhibit “G” and bylawsBylaws, annexed hereto as Exhibit “H”, and the Articles of Incorporation and Bylaws of Merger Sub, annexed hereto as Exhibits “K” and “L”, respectively, in each case including all amendments thereto, and the certificate of incorporation and bylaws of Merger Sub; (b) the stock records of Avatech Ethos and Merger Sub; and (c) except as Disclosed in Part 3.2(c) of the Avatech Disclosure Schedule, the minutes and other records of the meetings and other proceedings (including any actions taken by written consent or otherwise without a meeting) of the stockholders of Avatech and Merger Substockholders, the board boards of directors of Avatech and Merger Sub and all committees of the board boards of directors of Avatech Ethos and Merger Sub since January 1, 2005 (the items described in (a) and (b) above, collectively, the “Avatech Ethos Constituent Documents”). Since November 1, 2007, there There have been no formal meetings or actions taken by written consent or otherwise without a meeting of the stockholders of Avatech Ethos or Merger Sub, the board of directors of Avatech Ethos or Merger Sub or any committee of the board of directors of Avatech Ethos or Merger Sub that are not fully reflected in the minutes and other records delivered or made available to Merger Partner the Company pursuant to clause (c) above. There has not been any violation in any material respect of the Avatech Ethos Constituent Documents, and Avatech Ethos has not taken any action that is inconsistent in any material respect with the Avatech Ethos Constituent Documents. The books of account, stock records, minute books and other records of Avatech Ethos are accurate, up to date and complete in all material respects, and have been maintained in accordance with prudent business practices.