1 EXHIBIT 3.2.2 FILED IN THE OFFICE OF THE SECRETARY OF STATE OF THE STATE OF NEVADA APR 12 1996 DEAN HELLER, SECRETARY OF STATE /s/ DEAN HELLER --------------- CERTIFICATE OF AMENDMENT OF CERTIFICATE OF DESIGNATION ESTABLISHING THE RIGHTS AND PREFERENCES OF 10% SERIES A CUMULATIVE CONVERTIBLE PREFERRED STOCK THE LASER EYE SITES 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 THE LASER EYE SITES 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 December 12, 1995 adopted a resolution to amend the Certificate of Designation Establishing the Rights and Preferences of its 10% Series A 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 790,000 shares of its Preferred Stock as 10% Series A Cumulative Convertible Preferred Stock by a Certificate of Designation filed with the Nevada Secretary of State on November 2, 1995; 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 number and 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 2 "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 5.2 of the Certificate of Designation to increase the authorized number of shares of 10% Series A Cumulative Convertible Preferred Stock to 1,100,000 shares, to change dividend payment dates on its 10% Series A Cumulative Convertible Preferred Stock from quarter-annually in each year to one annual payment date, and to add certain adjustment provisions to prevent dilution in the event common stock is hereafter sold by the Corporation as a price less than the conversion price applicable hereunder; "NOW, THEREFORE, BE IT RESOLVED, that Section 1 of the Certificate of Designation Establishing the Rights and Preferences of the 10% Series A Cumulative Convertible Preferred Stock is hereby amended in its entirety to read as follows: "Section 1. Designation, Number and Restrictions on Issuance. The designation of the series of Preferred Stock authorized by these resolutions shall be "10% Series A Cumulative Convertible Preferred Stock" (the "Series A Preferred Stock"). The authorized number of shares constituting the Series A Preferred Stock shall be One Million One Hundred Thousand (1,100,000) shares. The Board of Directors is further authorized, within the limitations and restrictions set forth in the Articles of Incorporation or stated in any resolution or resolutions of the Board of Directors, to increase or decrease (but not below the number of shares of such series then outstanding) the number of shares of Series A Preferred Stock subsequent to the issuance of shares of such series. 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 these or any subsequent resolutions originally fixing the number of shares of such series." "BE IT FURTHER RESOLVED, that Section 2.4 of the Certificate of Designation Establishing the Rights and Preferences of the 10% Series A Cumulative Convertible Preferred Stock is hereby amended be adding a new subsection (C) thereto to read as follows: "(C) In addition to any adjustment required by the provisions of subsections (A) and (B) of this Section 2.4, the Conversion Ratio shall also be adjusted from time to time in accordance with the provisions of this subsection (C): C-1. Certain Definitions. For the purposes of this subsection (C), the following terms and provisions shall apply: (i) "Conversion Price" shall initially mean $5.00 per share of Common Stock, representing the conversion price applicable to the purchase of Common Stock upon conversion of Series A Preferred at the initial Conversion Ratio in effect hereunder and taking the initial value of each share of Series A Preferred for such purpose at $5.00 per share; provided, that in the event of any adjustment of the Conversion Ratio under 3 subsections (A) or (B) above, or in the event of any adjustment to the Conversion Price required by the provisions of this subsection (C), the Conversion Price in effect thereafter shall be proportionately and equitably adjusted. (ii) "Convertible Securities" shall include any options, rights or warrants to subscribe for or purchase Common Stock in the Corporation or any securities convertible into or exchangeable for Common Stock without the payment of any further consideration other than cash, if any. C-2. Certain Events Not Requiring Adjustment. (a) No adjustment of the Conversion Price and Conversion Rate shall be made under the provisions of this subsection (C) unless such adjustment would require an increase or decrease of at least $.05 in the Conversion Price per share of Common Stock (it being understood that the such Conversion Price is initially $5.00 per share of Common Stock, as aforesaid); provided that any adjustment(s) which by reason of this clause (a) are not required to be made shall be carried forward and shall be made at the time of, and together with, the next subsequent adjustment hereunder which, together with any adjustment(s) so carried forward, shall require an increase or decrease of at least $.05 in the Conversion Price then in effect hereunder. (b) Nothwithstanding anything to the contrary hereinafter set forth, no adjustment to the Conversion Price or to the number of shares of Common Stock issuable upon conversion of Series A Preferred shares hereunder will be required: (i) upon the exercise of any options or warrants to purchase securities granted or issued by the Corporation prior to its initial public offering of securities or upon the conversion into Common Stock of any shares of the Company's preferred stock issued in connection with the Corporation's initial public offering of securities or oustanding prior to such initial public offering; or (ii) upon the grant or exercise or any other options to officers, directors, employees or consultants which may hereafter be granted or exercised under the Company's stock option plan or under any other employee benefit plan of the Corporation; or (iii) upon the issuance or sale of Common Stock upon conversion or exchange of any Convertible Securities, whether or not any adjustment in the Conversion Price was made or required to be made upon the issuance or sale of such Convertible Securities. C-3. Adjustments. Except as provided above, in case of the issuance or sale by the Corporation for cash or other 4 consideration of any Common Stock or Convertible Securities (and whether or not the right of conversion or exchange thereunder is immediately exercisable), in which the price per share for which Common Stock is issuable, either in such transaction or upon the conversion or exchange of such Convertible Securities, shall be less than the Conversion Price then in effect, then the Conversion Price to be in effect after any such transaction shall be reduced to a Conversion Price (calculated to the nearest cent) determining by dividing (i) an amount equal to (a) the sum of the number of shares of Common Stock outstanding and issuable upon the conversion or exchange of all Convertible Securities outstanding immediately prior to the transaction, said sum to be multiplied by the Conversion Price then in effect, plus (b) the aggregate consideration to be received for the Common Stock and/or Convertible Securities issuable in the transaction (including any proceeds receivable upon the exercise of any right of conversion or exchange thereunder), by (ii) the the sum of the number of shares of Common Stock outstanding and issuable upon the conversion or exchange of all Convertible Securities outstanding immediately after the transaction. Whenever any adjustment to the Conversion Price is required hereunder, a proportionate adjustment to the Conversion Ratio and number of shares of Common Stock issuable upon conversion of the Series A Preferred shall be made. Such adjustment shall become effective as of the date upon which an transaction requiring an adjustment hereunder shall take effect. On the expiration of any right, warrant or option or the termination of any right to convert or exchange any Convertible Securities which required an adjustment hereunder, the Conversion Price then in effect hereunder shall forthwith be readjusted to such Conversion Price as would have obtained (a) had the adjustments made upon the issuance or sale of such rights, warrants, options or Convertible Securities been made upon the basis of the issuance of only the number of shares of Common Stock theretofore actually delivered (and the total consideration received therefor) upon the exercise of such rights, warrants or options or upon the conversion or exchange of such Convertible Securities and (b) had adjustments been made on the basis of the Conversion Price as adjusted under clause (a) of this paragraph for all transactions (which would have affected such adjusted Conversion Price) made after the issuance or sale of such rights, warrants, options or Convertible Securities. In case the Corporation shall modify the rights of conversion, exchange or exercise of any Convertible Securities, other than the Series A Preferred stock, for any reason other than an event that would require adjustment to prevent dilution, such that the consideration per share to be received by the Corporation after 5 such modification is less than the Conversion Price in effect prior to such modification, the Conversion Price to be in effect after such modification shall be determined by multiplying the Conversion Price in effect immediately prior to such event by a fraction, of which the numerator shall be the number of shares of Common Stock outstanding and issuable upon the conversion or exchange of all Convertible Securities outstanding immediately prior to the transaction multiplied by the Conversion Price on the date prior to the modification plus the number of shares of Common Stock which the aggregate consideration receivable by the Corporation for the securities affected by the modification would purchase at the then current market price, and of which the denominator shall be the number of shares of Common Stock outstanding and issuable upon the conversion or exchange of all Convertible Securities outstanding immediately after such modification plus the number of shares of Common Stock to be issued upon conversion, exchange or exercise of the modified securities at the modified rate. Such adjustment shall become effective as of the date upon which any such modification shall take effect. In case of the sale of any shares of Common Stock, any Convertible Securities, any rights or warrants to subscribe for or purchase, or any options for the purchase of, Common Stock or Convertible Securities requiring an adjustment to the Conversion Price hereunder, the consideration received by the Corporation therefor shall be deemed to be: (i) if sold for cash, the gross sales price therefor without deducting therefrom any expense paid or incurred by the Corporation or any underwriting discounts or commissions or concessions paid or allowed by the Corporation in connection therewith; and (ii) if sold for property other than cash, the current fair market value thereof as determined in good faith by the Board of Directors of the Corporation." "BE IT FURTHER RESOLVED, that Section 5.2 of the Certificate of Designation Establishing the Rights and Preferences of the 10% Series A Cumulative Convertible Preferred Stock is hereby amended in its entirety to read as follows: "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 sucessfully complete an initial public offering of its securities with the first dividend payment date to be in the year 1997. In the event any shares of Series A 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; 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." 6 (3) We further certify that the number of shares constituting the series of 10% Series A Cumulative Convertible Preferred Stock, of which 100,000 shares have been issued, is 790,000 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 10% Series A Cumulative Convertible Preferred Stock is 100,000 shares of 10% Series A 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 10% Series A Cumulative Convertible Preferred Stock outstanding and entitled to vote thereon. IN WITNESS WHEREOF, we have executed this instrument as of the dates set forth below. /s/ GHASSAN BARAZI ---------------------------- Ghassan Barazi, President /s/ THEODORE J. MAYER ---------------------------- Theodore J. Mayer, Secretary 7 Province of Ontario } } s. County of Essex } On April 4th, 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 THE LASER EYE SITES 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 --------------------------- Signature of Notary State of New York } } s. County of New York } On 12/15, 1995, 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 THE LASER EYE SITES OF MICHIGAN, INC., and that by his signature on the instrument, the entity upon behalf of which the person acted executed the instrument. /s/ JOSE M. YENKO --------------------------- Signature of Notary [Notary Stamp] JOSE M. YENKO NOTARY PUBLIC, State of New York No. 31-4677999 Qualified in New York County Commission Expires July 31, 1996