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Exhibit (e)(4)
CERTIFICATE OF INCORPORATION OF
ENDOSONICS DELAWARE CORPORATION
FIRST: The name of this corporation is Endosonics Delaware Corporation.
SECOND: The address of the registered office of the corporation in the
State of Delaware is 32 Loockerman Square, Suite L 100, Dover, Delaware 19901,
City of Dover, County of Kent, and the name of its registered agent at the
address is The Prentice-Hall Corporation System, Inc.
THIRD: The name and mailing address of the incorporator of the
corporation is:
Michael R. Henson
Endosonics Delaware Corporation
6616 Owens Drive
Pleasanton, California 94588
FOURTH: The purpose of the corporation is to engage in any lawful act
or activity for which corporations may be organized under the General
Corporation Law Of Delaware.
FIFTH: The corporation is authorized to issue 30,000,000 shares,
25,000,000 of which are designated "Common Stock," $0.001 par value, and
5,000,000 of which are designated "Preferred Stock," $0.001 par value. The Board
of Directors is hereby authorized to fix or alter the rights, preferences,
privilege and restrictions granted to or imposed upon any series of Preferred
Stock, and the number of shares constituting any such series and the designation
thereof, or any of them. The Board of Directors is also authorized to increase
or decrease the number of shares of any series, prior or subsequent to the issue
of that series, but not below the number of shares of such series then
outstanding. In case the number of shares of any series shall be so decreased,
the shares constituting such decrease shall resume the status which they had
prior to the adoption of the resolution originally fixing the number of shares
of such series.
SIXTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors is expressly authorized to make, repeal, alter,
amend and rescind from time to time any or all of the Bylaws of the corporation;
provided, however, that any bylaw amendment adopted by the Board of Directors
increasing or reducing the authorized number of directors or amending,
repealing, altering or rescinding Article 3, Section 3.2 of the Bylaws of the
corporation shall require a resolution adopted by the affirmative vote of not
less than sixty-six and two-thirds percent (66-2/3%) of the directors. Any
Bylaws amendment adopted by the stockholders increasing or reducing the
authorized number of directors or amending, repealing, altering or rescinding
Article 3, Section 3.2 of the Bylaws of the corporation shall require the
approval of not less than sixty-six and two-thirds percent (66-2/3%) of the
total voting power of all outstanding shares of stock of the corporation
entitled to vote thereon.
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SEVENTH: The number of directors of the corporation shall be fixed from
time to time by a Bylaw or amendment thereof duly adopted by the Board of
Directors. Any director or the entire Board of Directors may be removed from
office by the stockholders of the corporation only for cause.
EIGHTH: No stockholder will be permitted to cumulate votes in any
election of directors.
NINTH: Special meetings of the stockholders of this corporation for any
purpose or purposes may be called at any time upon the request in writing of a
majority of the Board of Directors or by the Chairman of the Board or President
of the corporation. Any such request shall state the purpose or purposes of the
proposed meeting. As soon as reasonably practicable after receipt of such a
request, written notice of such meeting, stating the place, date (which shall be
sixty (60) days from the date of the notice) and hour of the meeting, shall be
given to each stockholder entitled to vote at such meeting. Special meetings may
not be called other than as provided in this ARTICLE NINTH.
TENTH: Stockholders of the corporation shall take action by meetings
held pursuant to this Certificate of Incorporation and the Bylaws. Stockholders
may not take any action by written consent in lieu of a meeting. Meetings of
stockholders may be held within or outside of the State of Delaware, as the
Bylaws may provide. The books of the corporation may be kept (subject to any
provision contained in the statutes) outside of the State of Delaware at such
place of places as may be designated from time to time by the Board of Directors
or in the Bylaws of the corporation.
ELEVENTH: The corporation reserves the right to amend, alter, change or
repeal any provision contained in the Certificate of Incorporation, in the
manner now or hereafter prescribed by statute, and all rights conferred on
stockholders herein are granted subject to this reservation. Notwithstanding the
foregoing, the provisions set forth in ARTICLES SIXTH, SEVENTH, TENTH, TWELFTH
and this ARTICLE ELEVENTH may not be repealed or amended in any respect unless
such repeal or amendment is approved by the affirmative vote of not less than
sixty-six and two-thirds (66-2/3%) of the total voting powers of all outstanding
shares of stock of this corporation entitled to vote thereon, unless such
amendment or repeal has been previously approved by the vote of not less than
sixty-six and two-thirds (66-2/3%) of the members of the Board of Directors, in
which case those Articles of this Certificate of Incorporation may be so amended
or repealed by a vote of not less than a majority of the total voting power of
all outstanding shares of stock of the corporation entitled to vote thereon.
TWELFTH: A director of the corporation shall not be personally liable
to the corporation of its stockholders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of the
director's duty of loyalty to the corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived any
improper personal benefit. If the Delaware General Corporation Law is hereafter
amended to authorize, with the approval of a corporation's stockholders, further
reductions in the liability of the corporation's directors for breach of
fiduciary duty, then a director of the corporation shall not be liable for any
such breach
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to the fullest extent permitted by the Delaware General Corporation Law as so
amended. Any repeal or modification of the foregoing provisions of this ARTICLE
TWELFTH by the stockholders of the corporation shall not adversely affect any
right or protection of a director of the corporation existing at the time of
such repeal or modification.
THIRTEENTH: Elections of directors need not be by written ballot unless
the Bylaws of the corporation shall so provide.
THE UNDERSIGNED, being the incorporator hereinbefore names, for the
purpose of forming a corporation to do business both within and without the
State of Delaware, and in pursuance of the Delaware General Corporation Law,
does hereby make this Certificate, hereby declaring and certifying that this is
my act and deed and the facts herein stated are true, and accordingly, have
hereunto set may hand this ___ day of August, 1992.
/s/ Michael R. Henson
-----------------------------------
Michael R. Henson
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CERTIFICATE OF MERGER
OF
ENDOSONICS CORPORATION
a California corporation
INTO
ENDOSONICS DELAWARE CORPORATION
a Delaware corporation
The undersigned corporation, organized and existing under and by
virtue of the General Corporation Law of the State of Delaware
DOES HEREBY CERTIFY THAT:
FIRST: The name and state of incorporation of each of the
constituent corporations of the merger is as follows:
<TABLE>
<CAPTION>
Name State of Incorporation
---- ----------------------
<S> <C>
Endosonics Corporation California
Endosonics Delaware Corporation Delaware
</TABLE>
SECOND: An Agreement and Plan of Merger dated as of September 11,
1992 (the "Agreement of Merger") between Endosonics corporation ("Endosonics
California") and Endosonics Delaware Corporation ("Endosonics Delaware") has
been approved, adopted, certified, executed and acknowledged by each of the
constituent corporations in accordance with subsection (c) of Section 252 of the
General Corporation Law of the State of Delaware.
THIRD: The name of the surviving corporation is Endosonics
Delaware.
FOURTH: The Certificate of Incorporation of Endosonics Delaware
shall be the Certificate of incorporation of the surviving corporation without
change or amendment until further amended in accordance with applicable law,
except that Article First of the Certificate of Incorporation of Endosonics
Delaware shall be amended to read in full as follows:
"FIRST: The name of this corporation is
Endosonics Corporation."
FIFTH: The executed Agreement of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 6616 Ovens Drive,
Pleasanton, California 94588.
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SIXTH: A copy of the Agreement of Merger will be furnished by the
surviving corporation, on request and without cost, to any stockholder of either
constituent corporation.
SEVENTH: The authorized capital stock of Endosonics California
consists of (a) 26,000,000 shares of Common Stock, of which 9,028,093 shares are
issued and outstanding, and (b) 5,000,000 shares of Preferred Stock, none of
which are issued and outstanding.
IN WITNESS WHEREOF, this Certificate of Merger is hereby executed
on behalf of the surviving corporation, Endosonics Delaware Corporation, and
attested to by its officers thereunto duly authorized.
Dated: September 23, 1992 ENDOSONICS DELAWARE CORPORATION
By: /s/Michael R. Henson
--------------------------------
Name: Michael R Henson
Title: President and Chief
Executive Officer
Attest: /s/ Edward. Leonard
---------------------------
Name: Edward M. Leonard
Title: Secretary
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