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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
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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
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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 5.2 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
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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
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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
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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."
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(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
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Ghassan Barazi, President
/s/ THEODORE J. MAYER
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Theodore J. Mayer, Secretary
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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
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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
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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