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

Certificate of Incorporation and Bylaws; Records. Ethos and Merger Sub have delivered or made available to the Company accurate and complete copies of: (a) Ethos’s Articles of Incorporation, annexed hereto as Exhibit “G” and Bylaws, 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; (b) the stock records of Ethos and Merger Sub; and (c) 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, the boards of directors and all committees of the boards of directors of Ethos and Merger Sub (the items described in (a) and (b) above, collectively, the “Ethos Constituent Documents”). There have been no formal meetings or actions taken by written consent or otherwise without a meeting of the stockholders of Ethos or Merger Sub, the board of directors of Ethos or Merger Sub or any committee of the board of directors of Ethos or Merger Sub that are not fully reflected in the minutes and other records delivered or made available to the Company pursuant to clause (c) above. There has not been any violation of the Ethos Constituent Documents, and Ethos has not taken any action that is inconsistent with the Ethos Constituent Documents. The books of account, stock records, minute books and other records of Ethos 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. Ethos Avatech and Merger Sub have delivered or made available to the Company Merger Partner accurate and complete copies of: (a) EthosAvatech’s Articles certificate of Incorporationincorporation and bylaws, annexed hereto as Exhibit “G” and Bylaws, 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 Ethos 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 stockholdersstockholders of Avatech and Merger Sub, the boards board of directors of Avatech and Merger Sub and all committees of the boards board of directors of Ethos Avatech and Merger Sub since January 1, 2005 (the items described in (a) and (b) above, collectively, the “Ethos Avatech Constituent Documents”). There 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 Ethos Avatech or Merger Sub, the board of directors of Ethos Avatech or Merger Sub or any committee of the board of directors of Ethos Avatech or Merger Sub that are not fully reflected in the minutes and other records delivered or made available to the Company Merger Partner pursuant to clause (c) above. There has not been any violation in any material respect of the Ethos Avatech Constituent Documents, and Ethos Avatech has not taken any action that is inconsistent in any material respect with the Ethos Avatech Constituent Documents. The books of account, stock records, minute books and other records of Ethos 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. Ethos Replidyne and Merger Sub have delivered or made available to the Company accurate and complete copies of: (a) EthosReplidyne’s Articles Certificate of Incorporation, annexed hereto as Exhibit “G” Incorporation and Bylaws, 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; (b) the stock records of Ethos Replidyne and Merger Sub; and (c) 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, the boards of directors and all committees of the boards of directors of Ethos Replidyne and Merger Sub (the items described in (a) and (b) above, collectively, the “Ethos Replidyne Constituent Documents”). There have been no formal meetings or actions taken by written consent or otherwise without a meeting of the stockholders of Ethos Replidyne or Merger Sub, the board of directors of Ethos Replidyne or Merger Sub or any committee of the board of directors of Ethos Replidyne or Merger Sub that are not fully reflected in the minutes and other records delivered or made available to the Company pursuant to clause (c) above. There has not been any violation of the Ethos Replidyne Constituent Documents, and Ethos Replidyne has not taken any action that is inconsistent with the Ethos 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 Ethos 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. Ethos and Merger Sub have The Company has delivered or made available to the Company Purchasers accurate and complete (through the date hereof) copies of: (ai) Ethos’s Articles the certificate of Incorporation, annexed hereto as Exhibit “G” incorporation and Bylaws, annexed hereto as Exhibit “H”, and the Articles of Incorporation and Bylaws of Merger Sub, annexed hereto as Exhibits “K” and “L”, respectivelybylaws (or, in each 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 Subsidiaries; (bii) the stock equity records of Ethos the Company and Merger Subeach of the Subsidiaries; and (ciii) 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 stockholdersholders of securities of the Company or any of its Subsidiaries, the boards board of directors or board of managers, as applicable, of each of the Companies and all committees of the boards board of directors or board of Ethos and Merger Sub managers, 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 “Ethos Constituent Company Documents”). 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 Ethos or Merger SubCompanies, the board of directors or board of Ethos or Merger Sub managers, as applicable, of any of the Companies or any committee of the board of directors or board of Ethos 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 the Company pursuant to clause (c) aboveDocuments. There has not been any violation of any of the Ethos Constituent Company Documents, and Ethos at no time has not any of the Companies taken any action that is inconsistent in any material respect with the Ethos Constituent Company Documents. The books of account, stock equity records, minute books and other records of Ethos 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. Ethos and Merger Sub have The Company has delivered or made available to the Company Parent accurate and complete copies of: (ai) Ethos’s Articles the certificate of Incorporationincorporation and bylaws, annexed hereto as Exhibit “G” and Bylaws, 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 theretothereto of the Company and each of its Subsidiaries; (bii) the stock records of Ethos the Company and Merger Subeach of its Subsidiaries; and (ciii) 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 stockholdersStockholders of the Company and each of its Subsidiaries, the boards board of directors of the Company and each of its Subsidiaries and all committees of the boards board of directors of Ethos the Company and Merger Sub each of its Subsidiaries (the items described in (ai), (ii) and (biii) above, collectively, the “Ethos Company Constituent Documents”). There have been no formal meetings or actions taken by written consent or otherwise without a meeting other proceedings of the stockholders Stockholders of Ethos or Merger Subthe Company, the board of directors of Ethos the Company or Merger Sub its Subsidiaries or any committee of the board of directors of Ethos the Company or Merger Sub its Subsidiaries that are not fully reflected in the minutes and other records delivered or made available 27 AMBION, INC. AGREEMENT AND PLAN OF MERGER Back to Contents of the Company pursuant to clause (c) aboveCompany. There has not been any violation of the Ethos Company Constituent Documents, and Ethos neither the Company nor any of its Subsidiaries has not taken any action that is inconsistent in any material respect with the Ethos Company Constituent Documents. The books of account, stock records, minute books and other records of Ethos the Company and each of its Subsidiaries are accurate, up to up-to-date and complete in all material respects, and have been maintained in accordance with Applicable Laws and prudent business practices.

Certificate of Incorporation and Bylaws; Records. Ethos 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 the Company Parent accurate and complete copies of: (a) Ethos’s Articles of Incorporation, annexed hereto as Exhibit “G” and Bylaws, annexed hereto as Exhibit “H”, and the Articles Certificate of Incorporation and Bylaws of Merger Sub(or similar organizational documents), annexed hereto as Exhibits “K” and “L”, respectively, in each case including all amendments theretothereto of each of the Acquired Companies; (b) the stock records of Ethos and Merger Subeach of the Acquired Companies; and (c) 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, the boards stockholders of directors and all committees each of the boards Acquired Companies and the board of directors of Ethos and Merger Sub each of the Acquired Companies (the items described in (a), (b) and (bc) above, collectively, the “Ethos Company Constituent Documents”)) that are in its possession. There have been no formal meetings or actions taken by written consent or otherwise without a meeting other proceedings of the stockholders of Ethos the Acquired Companies or Merger Sub, the board of directors of Ethos or Merger Sub or any committee of the board of directors of Ethos 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 be reflected under the Company pursuant to clause (c) aboveapplicable laws. There has not been any violation of the Ethos Company Constituent Documents, and Ethos 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 Ethos 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 Ethos 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.