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Exhibit 2.3
CERTIFICATE OF MERGER
MERGING
RW ACQUISITION CORPORATION,
a Delaware corporation
WITH AND INTO
CARDIOGENESIS CORPORATION
a Delaware corporation
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Pursuant to Section 251 of the General Corporation Law of the State of Delaware
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RW Acquisition Corporation, a Delaware corporation ("Merger Sub"), and
Cardiogenesis Corporation, a Delaware corporation ("Cardiogenesis"), DO HEREBY
CERTIFY AS FOLLOWS:
FIRST: That the constituent corporations to the merger certified here
are Merger Sub and Cardiogenesis. Merger Sub was incorporated on October 16,
1998 pursuant to the Delaware General Corporation Law (the "Delaware Law"), and
Cardiogenesis was incorporated on April 11, 1996 pursuant to the Delaware Law.
SECOND: That an Agreement and Plan of Reorganization (the
"Reorganization Agreement") dated as of October 21, 1998 by and among Eclipse
Surgical Technologies, Inc., a California corporation, Merger Sub and
Cardiogenesis, setting forth the terms and conditions of the merger of Merger
Sub with and into Cardiogenesis (the "Merger"), has been approved, adopted,
certified, executed and acknowledged by each of the constituent corporations in
accordance with Section 251 of the Delaware Law.
THIRD: That Cardiogenesis shall be the surviving corporation in the
merger (the "Surviving Corporation") and the name of the Surviving Corporation
shall be Cardiogenesis Corporation.
FOURTH: That pursuant to the Reorganization Agreement, the Restated
Certificate of Incorporation of the Surviving Corporation is amended to read in
its entirety as set forth in Exhibit A attached hereto.
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FIFTH: That an executed copy of the Reorganization Agreement is on file
at the office of the Surviving Corporation at the following address:
Cardiogenesis Corporation
540 Oakmead Parkway
Sunnyvale, California 94086
SIXTH: That an executed copy of the Reorganization Agreement will be
furnished by the Surviving Corporation, on request and without cost, to any
stockholder of any constituent corporation.
SEVENTH: That the Merger shall become effective upon the filing of this
Certificate of Merger with the Secretary of State of the State of Delaware.
IN WITNESS WHEREOF, each of Merger Sub and Cardiogenesis has caused this
Certificate of Merger to be executed in its corporate name as of this 17th day
of March, 1999.
CARDIOGENESIS CORPORATION
a Delaware corporation
By: /s/ Allen W. Hill
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Allen W. Hill
President & Chief Executive Officer
RW ACQUISITION CORPORATION
a Delaware corporation
By: /s/ Douglas Murphy-Chutorian
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Douglas Murphy-Chutorian
Chief Executive Officer
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EXHIBIT A
RESTATED CERTIFICATE OF INCORPORATION
OF
CARDIOGENESIS CORPORATION
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RESTATED CERTIFICATE OF INCORPORATION
OF
CARDIOGENESIS CORPORATION
FIRST. The name of the corporation is CARDIOGENESIS CORPORATION.
SECOND. The address of the corporation's registered office in the State
of Delaware is 1209 Orange Street, Wilmington, New Castle County, Delaware
19801. The name of the registered agent at such address is The Corporation
Trust Company.
THIRD. 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.
FOURTH. The total number of shares which the corporation shall have
authority to issue is 1,000 shares of capital stock, and the par value of each
share is $0.001 per share.
FIFTH. The Board of Directors of the corporation is expressly
authorized to adopt, amend or repeal the by-laws of the corporation, but the
stockholders may make additional by-laws and may alter or repeal any by-law
whether adopted by them or otherwise.
SIXTH. Elections of directors need not be by written ballot except and
to the extent provided in the by-laws of the corporation.
SEVENTH. (a) To the fullest extent permitted by law, no director of the
corporation shall be personally liable for monetary damages for breach of
fiduciary duty as a director. Without limiting the effect of the preceding
sentence, if the Delaware General Corporation Law is hereafter amended to
authorize the further elimination or limitation of the liability of a director,
then the liability of a director of the corporation shall be eliminated or
limited to the fullest extent permitted by the Delaware General Corporation Law,
as so amended.
(b) Neither any amendment nor repeal of this Article Seventh,
nor the adoption of any provision of this Certificate of Incorporation
inconsistent with this Article Seventh, shall eliminate, reduce or otherwise
adversely affect any limitation on the personal liability of a director of the
corporation existing at the time of such amendment, repeal or adoption of such
an inconsistent provision.