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EXHIBIT 3.3.3
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
MAY 22, 1996
No. 11178-95
/s/ DEAN HELLER
---------------
Dean Heller, Secretary of State
CERTIFICATE OF AMENDMENT
OF CERTIFICATE OF DESIGNATION
ESTABLISHING THE RIGHTS AND PREFERENCES OF
5% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
VISTA LASER CENTERS OF MICHIGAN, INC.
a Nevada corporation
We the undersigned, GHASSAN BARAZI and THEODORE J. MAYER, do hereby
certify:
(1) They are the President and Secretary, respectively, of VISTA LASER
CENTERS OF MICHIGAN, INC., a Nevada corporation (the "Corporation").
(2) Pursuant to the authority granted under the Corporation's Articles
of Incorporation, the Board of Directors of said Corporation by unanimous
consent in writing effective as of April 30, 1996 adopted a resolution to amend
the Certificate of Designation Establishing the Rights and Preferences of its 5%
Series B Cumulative Convertible Preferred Stock, as follows:
"WHEREAS, this Corporation is authorized by its Articles of
Incorporation to issue 5,000,000 shares of preferred stock, par value
$0.01 per share (the "Preferred Stock"); and
"WHEREAS, this Corporation has previously designated 200,000
shares of its Preferred Stock as 5% Series B Cumulative Convertible
Preferred Stock by a Certificate of Designation filed with the Nevada
Secretary of State on November 2, 1995 as amended by a Certificate of
Amendment filed on January 8, 1996; and
"WHEREAS, the Board of Directors of this Corporation is
authorized, as to the Preferred Stock, within the limitations and
restrictions stated in the Articles of Incorporation, to fix by
resolution or resolutions the designation of each series of Preferred
Stock and the powers, preferences and relative participating, optional or
other special rights and qualifications, limitations or restrictions
thereof, including, without limitation, such provisions as may be desired
concerning dividends, redemption, voting, dissolution or the distribution
of assets, conversion or exchange, and such other subjects or matters as
may be fixed by resolution or resolutions of the Board of Directors; and
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"WHEREAS, the Board of Directors of this Corporation desires,
pursuant to its authority granted under the Articles of Incorporation, to
amend the provisions of Section 5 of the Certificate of Designation;
"NOW, THEREFORE, BE IT RESOLVED, that Section 5 of the
Certificate of Designation Establishing the Rights and Preferences of the
5% Series B Cumulative Convertible Preferred Stock is hereby amended in
its entirety to read as follows:
"Section 5. Dividends and Restrictions on Certain
Repurchases.
"5.1. The holders of the shares of Series B Preferred Stock
shall be entitled to receive, when, as and if declared by the Board of
Directors, out of funds legally available for the payment of dividends or
as dividends payable in Common Stock in accordance with the provisions of
this Section 5, cumulative dividends at the annual rate of 5% per annum
($0.125 per share). Each of such annual dividends shall be fully
cumulative and shall accrue (whether or not declared or permitted to be
paid), from the first day such shares were first issued.
"5.2. If declared by the Board of Directors, dividends shall
be payable annually on the last day of the month in which the corporation
shall successfully complete an initial public offering of its securities
with the first dividend payment date to be the last day of the month in
which the first anniversary of such initial public offering shall occur.
In the event any shares of Series B Preferred Stock shall be outstanding
for more or less than the period covered by such dividend year, the
amount of the dividend shall be prorated for such periods. Such dividends
shall be paid to the holders of record at the close of business on the
date specified by the Board of Directors of the Corporation at the time
the dividend is declared (the "Record Date"); provided, however, that
such Record Date shall be not more than 30 days nor less than 10 days
prior to the respective dividend payment date.
"5.3. All dividends paid with respect to shares of the Series
B Preferred Stock shall be paid pro rata to the holders entitled thereto.
"5.4. No dividends, other than dividends payable solely in
securities of the Corporation, shall be declared by the Board of
Directors on any class or series of equity securities of the Corporation
unless and until such time as all accrued and unpaid dividends on the
Series B Preferred Stock have been paid in full or unless the Series B
Preferred Stock has been redeemed in accordance with its terms or are
fully converted into Common Stock of the Corporation or are otherwise
reacquired and retired in full by the Corporation. The Corporation may
not pay or set apart for payment, other than dividends or other
distributions or payments payable solely in Common Stock, any other
distributions on any shares of the Corporation's Common Stock, and may
not purchase or otherwise redeem for cash or other tangible property,
other than in shares of Common Stock, any shares of the Corporation's
Common Stock or any warrants, rights or options exercisable for or
convertible into any shares of Common Stock unless and until such time as
the Series B Preferred Stock has been redeemed in accordance with its
terms or are fully converted into Common Stock of the Corporation or are
otherwise reacquired and retired in full by the Corporation.
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"5.5(a). In the event the Corporation shall have accrued the
payment of dividends beyond a date on which dividends would otherwise be
declared hereunder due to the fact that the Corporation is not legally
permitted to pay dividends in cash on all outstanding shares of Series B
Preferred stock under the laws of the State of Nevada, the Corporation,
at the election of its Board of Directors made at any time thereafter (so
long as such dividends may not be paid in cash from funds legally
available therefor), may elect to pay all cumulative accrued dividends
otherwise due and payable in shares of Common Stock or Series B Preferred
Stock in lieu of cash. In such event, the Corporation shall advise each
holder of record of Series B Preferred Stock in writing on the Record
Date, not more than 30 days nor less than 10 days prior to the respective
dividend payment date, of the Corporation's election to make such
interest payment in shares of the Corporation's Common Stock or Series B
Preferred Stock. For the purposes of this Certificate, "Common Stock"
shall mean the Corporation's Common Stock as constituted on the Record
Date.
"5.5(b) For any dividend payment to be made in Common Stock or
Series B Preferred Stock as herein provided, the number of shares
issuable for such dividend payment shall be determined by dividing the
cumulative accrued dividend payments due on said dividend payment date by
the Dividend Stock Value. "Dividend Stock Value" shall mean 100% of the
Fair Market Value per share of the class or series of securities to be
paid as dividends determined as of the applicable Record Date for the
payment of such accrued dividends. For this purpose "Fair Market Value"
as of any specific Record Date shall be determined by reference to the
unweighted average closing sale prices for the class or series of
securities to be paid as dividends during the ten days on which such
shares are actually traded in the NASDAQ system or on a national
securities exchange immediately prior to the Record Date upon which Fair
Market Value is to be determined. (If for any reason closing sale prices
are not quoted by the NASDAQ system on any such day, then the closing
market price for such day shall be deemed the closing bid price for such
day as reported by the National Quotation Bureau). In the event the class
or series of securities to be paid as dividends is not actively quoted
and traded in any securities market, the Fair Market Value thereof shall
be determined in the exclusive discretion of the Corporation's Board of
Directors acting in good faith."
(3) We further certify that the number of shares constituting the series
of 5% Series B Cumulative Convertible Preferred Stock, of which 200,000 shares
have been issued, is 200,000 shares. The number of shares of the corporation
outstanding and entitled to vote on this amendment to the Certificate of
Designation Establishing the Rights and Preferences of the 5% Series B
Cumulative Convertible Preferred Stock is 200,000 shares of 5% Series B
Cumulative Convertible Preferred Stock, and the said amendments to the
Certificate of Designation have been consented to and approved by a majority
vote of the stockholders holding at least a majority of the 5% Series B
Cumulative Convertible Preferred Stock outstanding and entitled to vote thereon.
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IN WITNESS WHEREOF, we have executed this instrument as of the dates set
forth below.
/s/ GHASSAN BARAZI
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Ghassan Barazi, President
/s/ THEODORE J. MAYER
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Theodore J. Mayer, Secretary
Province of Ontario }
} s.
County of Essex }
On May 12, 1996, personally appeared before me, a Notary Public in and
for the jurisdiction named above, GHASSAN BARAZI, who acknowledged that he
executed the above instrument in his authorized capacity as President of VISTA
LASER CENTERS OF MICHIGAN, INC., and that by his signature on the instrument,
the entity upon behalf of which the person acted executed the instrument.
[Notary Seal] /s/ G. F. COUREY
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Signature of Notary
State of New York }
} s.
County of ____________ }
On 3rd day of May, 1996, personally appeared before me, a Notary Public,
THEODORE J. MAYER, who acknowledged that he executed the above instrument in his
authorized capacity as Secretary of VISTA LASER CENTERS OF MICHIGAN, INC., and
that by his signature on the instrument, the entity upon behalf of which the
person acted executed the instrument.
/s/ MOHAN K. DANSINGHANI
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Signature of Notary
[Notary Stamp]
DANSINGHANI MOHAN K.
Notary Public, State of New York
No. 01DA5039674
Qualified in Nassau County
Commission Expires Feb. 21, 1997