CERTIFICATE OF OWNERSHIP AND MERGER
OF
JOMED ACQUISITION CORP.
WITH AND INTO
ENDOSONICS CORPORATION
-----------------------------------
Pursuant to Section 253 of the General
Corporation Law of the State of Delaware
-----------------------------------
JOMED ACQUISITION CORP, a Delaware corporation (the "Corporation"),
hereby certifies as follows:
1. The Corporation is incorporated pursuant to the General
Corporation Law of the State of Delaware ("DGCL").
2. The Corporation owns more than 90% of the the outstanding
shares of stock of EndoSonics Corporation, a Delaware
corporation ("EndoSonics").
3. On September 20, 2000 the Corporation, by resolutions of the
Board of Directors (a true copy of which is attached hereto
as Exhibit A) duly adopted by written consent, determined,
among other things, to merge the Corporation with and into
EndoSonics Corporation (the "Merger") according to a Plan of
Merger (a true copy of which is attached hereto as Annex A.3)
pursuant to Section 253 of the DGCL. Such resolutions have
not been modified or rescinded and are in full force and
effect on the date hereof.
4. The Merger contemplated herein was approved by JOMED
N.V., the sole stockholder of the Corporation, by written
consent pursuant to Section 228 of the DGCL.
* * * * *
IN WITNESS WHEREOF, the Corporation has caused this Certificate
of Ownership and Merger to be executed in its corporate name this
21st day of September, 2000.
JOMED ACQUISITION CORP.
By: /s/ Tor Peters
----------------------
Name: Tor Peters
Title: President
EXHIBIT A
ACTION BY WRITTEN CONSENT
OF THE BOARD OF DIRECTORS
OF JOMED ACQUISITION CORP.
The undersigned, being all of the members of the Board of
Directors of JOMED Acquisition Corp., a Delaware corporation (the
"Corporation"), acting pursuant to Section 141(f) of the Delaware General
Corporation Law, having given due and proper consideration to all matters
and things which are necessary or appropriate to enable it to evaluate and
reach an informed conclusion as to the fairness and reasonableness of the
actions described below; by this written consent (the "Consent") consent to
the adoption of the following resolutions with the same force and effect as
if they had been unanimously adopted at a duly convened meeting of the
Board of Directors of the Corporation and direct that this Consent be filed
with the minutes of the proceedings of the Board of Directors of the
Corporation:
WHEREAS, the Corporation owns more than ninety percent (90%) of
the outstanding shares of each class of the capital stock of EndoSonics
Corporation, a Delaware Corporation ("EndoSonics") and wishes to merge the
Corporation with and into EndoSonics, pursuant to Section 253 of the
General Corporation Law of the State of Delaware (the "DGCL");
NOW BE IT THEREFORE BEREBY:
RESOLVED, that the form of certificate for fully paid and
nonassessable shares of Common Stock of the Corporation attached hereto be,
and it hereby is, adopted as the certificate to represent fully paid and
nonassessable shares of Common Stock and that a specimen of such
certificate be annexed to this written consent as Annex A.1; and
FURTHER RESOLVED, that whereas this Board of Directors wishes
to offer for sale and issue shares of the Corporation's Common Stock
authorized by its Certificate of Incorporation, the proper officers of the
Corporation be, and they hereby are, authorized and directed to offer for
sale and to sell and issue 1,000 shares of the Corporation's Common Stock
at $124,900.393 per share; and
FURTHER RESOLVED, that the offer of JOMED N.V., a corporation
formed under the laws of The Netherlands ("Parent"), to purchase 1,000
shares of the Corporation's Common Stock, par value $0.001 per share, at a
purchase price of $124,900.393 per share, be, and it hereby is, accepted;
and that upon receipt of payment for such shares, the proper officers of
the Corporation be, and they hereby are, authorized and directed to issue
to Parent a certificate or certificates representing 1,000 paid and
nonassessable shares of Common Stock of the Corporation; and
FURTHER RESOLVED, that whereas this Board of Directors wishes
to offer a promissory note of the Corporation in an amount equal to
$75,000,000.00 for sale to Parent on the terms and conditions of the
promissory note annexed to this written consent as Annex A.2 (the
"Promissory Note"), the proper officers of the Corporation be, and they
hereby are, authorized and directed to offer for sale and to sell and issue
the Promissory Note to Parent;
FURTHER RESOLVED, that the Plan of Merger, a copy of which is
attached hereto as Annex A.3 and is made part of these resolutions,
providing for the merger of the Corporation and EndoSonics, through the
Corporation being merged with and into EndoSonics pursuant to Section 253
of the DGCL (the "Merger") with EndoSonics as the surviving corporation
(the "Surviving Corporation"), is hereby approved; and
FURTHER RESOLVED, that the Merger shall become effective (the
"Effective Time") when the Certificate of Ownership and Merger is filed
with the Secretary of State of the State of Delaware and that the Merger
shall have the effect set forth in Section 259 of the DGCL. The Surviving
Corporation may, at any time after the Effective Time, take any action
(including executing and delivering any document) in the name and on behalf
of either of the Corporation or EndoSonics in order to carry out and
effectuate the transactions contemplated; and
FURTHER RESOLVED, that the President, the Secretary and
Treasurer of the Corporation (collectively, the "Authorized Officers") are
hereby authorized and directed (with the power to delegate such
authorization and direction to any Vice President of the Corporation), in
the name and on behalf of the Corporation, to execute and deliver the
Merger Agreement in substantially such form, with such additions, deletions
or other changes therein as the officer executing the Merger Agreement
shall approve (including without limitation approving the per share Tender
Offer price) such approval to be conclusively evidenced by the execution
and delivery thereof, and to file a Certificate of Ownership and Merger
with the Secretary of State of the State of Delaware; and
FURTHER RESOLVED, that the appropriate officers of the Corporation
be, and they hereby are, authorized, empowered and directed to take or
cause to be taken any and all such further actions, to execute and deliver
all such other instruments and documents, for, and in the name and on
behalf of, the Corporation, to incur and pay all such fees and expenses and
to engage such persons as they in their discretion deem necessary,
desirable or appropriate to carry out fully the intent and purposes of the
foregoing resolutions and the execution by such officer or officers of any
such instrument or document or the payment of such fees and expenses or the
engagement of such persons or the doing by them of any act in connection
with the foregoing matters shall conclusively establish their authority
therefor and the approval, adoption, ratification, and confirmation by the
Corporation of the instruments or documents so executed, the fees and
expenses so paid, the persons so engaged and the actions so taken; and
FURTHER RESOLVED, that any acts of the officers of the
Corporation and of any person or persons designated and authorized to act
by an officer of the Corporation, which acts would have been authorized by
the foregoing resolutions except that such acts were taken prior to the
adoption of such resolutions, are hereby severally ratified, confirmed,
approved and adopted as acts in the name and on behalf of the Corporation;
FURTHER RESOLVED, that all actions previously taken by any
director of the Corporation in connection with the transactions
contemplated by the foregoing resolutions are hereby authorized, approved,
adopted, ratified and confirmed in all respects; and
FURTHER RESOLVED, that any person dealing with any officer or
officers of the Corporation in connection with any of the foregoing matters
shall be conclusively entitled to rely upon the authority of such officer
and by his or her execution of any document, agreement or instrument, the
same being a valid and binding obligation of the Corporation enforceable in
accordance with its terms.
* * * * *
IN WITNESS WHEREOF, the undersigned, being all
of the members of the Board of Directors of JOMED Acquisition Corp., have
executed this written consent as of the 20th day of September, 2000.
/s/ Peter Klemm
---------------------------------
Name: Peter Klemm
Title: Director
/s/ Tor Peters
---------------------------------
Name: Tor Peters
Title: Director
/s/ Antti Ristinmaa
---------------------------------
Name: Antti Ristinmaa
Title: Director
ANNEX A.3
PLAN OF MERGER
JOMED Acquisition Corp., a Delaware corporation (the
"Corporation") shall be and hereby is, at the Effective Time of the Merger,
merged (the "Merger") with and into EndoSonics Corporation, a Delaware
corporation ("EndoSonics"), which shall be the surviving corporation (the
"Surviving Corporation"), in accordance with the terms and conditions set
forth below.
Cancellation of Shares
Each issued and outstanding share of capital stock of the
Corporation shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation.
All shares of EndoSonics that are owned by EndoSonics or any
affiliate of EndoSonics and by the Corporation shall be cancelled and
retired and shall cease to exist and no consideration shall be delivered in
exchange therefor; provided, that shares of EndoSonics held beneficially or
of record by any plan, program or arrangement sponsored or maintained for
the benefit of employees of EndoSonics or any Subsidiaries thereof shall
not be deemed to be held by EndoSonics regardless of whether the
Corporation has, directly or indirectly, the power to vote or control the
disposition of such Shares.
Each issued and outstanding share of EndoSonics (other than
shares to be cancelled in accordance with the preceding paragraph and any
shares which are held by stockholders exercising appraisal rights pursuant
to Section 262 of the DGCL ("Dissenting Stockholders")) shall be converted
into the right to receive $11.00 per share in cash, payable to the holder
thereof, without interest (the "Merger Consideration"), upon surrender of
the certificate formerly representing such share. All converted shares,
when so converted, shall no longer be outstanding and shall automatically
be cancelled and retired and shall cease to exist, and each holder of a
certificate representing any such shares shall cease to have any rights
with respect thereto, except the right to receive the Merger Consideration
therefor upon the surrender of such certificate. All shares which are held
by stockholders exercising appraisal rights pursuant to section 262 of the
DGCL shall no longer be outstanding and shall automatically be cancelled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive payment from the Surviving Corporation
of the "fair value" of such shares as determined in accordance with Section
262 of the DGCL.
Mailing of Plan of Merger
As soon as practicable after the approval of this Plan of
Merger by the directors of the Corporation, the appropriate officers of the
Corporation shall promptly mail a copy of this Plan of Merger to each
shareholder of record of EndoSonics. On or as soon as practicable after the
mailing of this Plan of Merger, the appropriate officers of the Corporation
shall prepare and file a Certificate of Ownership and and Merger with the
Secretary of State of the State of Delaware.
Dissenting Shares
At the Effective Time, each issued and outstanding share of
EndoSonics Common Stock held by a stockholder who has perfected his right
to an appraisal pursuant to Section 262 of the DGCL (each such share a
"Dissenting Share" and each such stockholder a "Dissenting Stockholder")
shall become the right to receive such consideration as may be determined
to be due to such Dissenting Stockholder pursuant to the law of the State
of Delaware; provided, however, that each share of EndoSonics outstanding
at the Effective Time and held by a Dissenting Stockholder who shall, after
the Effective Time, withdraw his demand for appraisal or lose his right of
appraisal as provided in such law, shall be deemed to be converted, as of
the Effective Time, into the amount of cash such Dissenting Stockholder
otherwise would have been entitled to receive as a result of the Merger.
Pursuant to Section 262(d)(2) of the DGCL, EndoSonics, as the Surviving
Corporation, shall notify each stockholder of record of EndoSonics within
ten days after the Effective Time that (i) the Merger has become effective
and (ii) appraisal rights are available for any or all shares of the
EndoSonics as provided in Section 262 of the DGCL.
Directors and Officers
The directors of the Corporation at the Effective Time of
the Merger shall be the directors of the Surviving Corporation after the
Effective Time of the Merger and shall continue to so serve, subject to the
applicable provisions of the DGCL, the Certificate of Incorporation and the
By-laws of the Surviving Corporation, until their respective successors
shall have been duly elected and qualified as provided in the By-laws of
the Surviving Corporation.
The officers of EndoSonics at the Effective Time of the
Merger shall be the officers of the Surviving Corporation after the
Effective Time of the Merger and shall continue to so serve, subject to the
applicable provisions of the Certificate of Incorporation and the By-laws
of the Surviving Corporation, until their respective successors shall have
been duly appointed as provided in the By-laws of the Surviving
Corporation.
Rights and Duties of EndoSonics as the Surviving
Corporation.
At the Effective Time, for all purposes the separate
existence of the Corporation shall cease, and the Corporation shall be
merged with and into EndoSonics which, as the Surviving Corporation, shall
thereupon and thereafter possess all the rights, privileges, powers and
franchises as well of a public as of a private nature, and be subject to
all the restrictions, disabilities and duties of each of the Corporation
and EndoSonics (the "Constituent Corporations") so merged; and all and
singular, the rights, privileges, powers and franchises of each of the
Constituent Corporations, and all property, real, personal and mixed, and
all debts due to either of the Constituent Corporations and EndoSonics on
whatever account, as well for stock subscriptions as all other things in
action or belonging to each of such Constituent Corporations shall be
vested in the Surviving Corporation; and all property, rights, privileges,
powers and franchises, and all and every other interest shall be thereafter
as effectually the property of the Surviving Corporation as they were of
the several and respective Constituent Corporations, and the title to any
real estate vested by deed or otherwise, under the laws of the State of
Delaware, in any of such Constituent Corporations, shall not revert or be
in any way impaired by reason of the DGCL; but all rights of creditors and
all liens upon any property of any of the Constituent Corporations shall be
preserved unimpaired, and all debts, liabilities and duties of the
respective Constituent Corporations shall thenceforth attach to the
Surviving Corporation, and may be enforced against it to the same extent as
if said debts, liabilities and duties had been incurred or contracted by
it. If at any time the Surviving Corporation shall consider or be advised
that any further assignment or assurances in law or any other things are
necessary or desirable to vest in the Surviving Corporation, according to
the terms hereof, the title of any property or rights of the Corporation,
the last acting officers and directors of the Corporation or the
corresponding officers and directors of the Surviving Corporation, as the
case may be, shall and will execute and make all such proper assignments
and assurances and do all things necessary or proper to vest title in such
property or rights in the Surviving Corporation, and otherwise to carry out
the purposes of this Plan of Merger.
Effective Time. As used in this Plan of Merger, the term
"Effective Time" shall mean the date and time at which an executed
Certificate of Ownership and Merger setting forth a copy of these
resolutions is filed with the Secretary of State of the State of Delaware
pursuant to Sections 253 and 103 of the DGCL or such other date and time as
is specified in such executed Certificate of Ownership and Merger.
* * * * *
