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EXHIBIT 3.3.1
FILED
IN THE OFFICE OF THE
SECRETARY OF STATE OF THE
STATE OF NEVADA
NOV 02 1995
DEAN HELLER, SECRETARY OF STATE
/s/ DEAN HELLER
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No. 11178-95
CERTIFICATE OF DESIGNATION
ESTABLISHING THE RIGHTS AND PREFERENCES OF
5% SERIES B CUMULATIVE CONVERTIBLE PREFERRED STOCK
THE LASER EYE SITES OF MICHIGAN, INC.
a Nevada corporation
We the undersigned, GHASSAN BARRAZI 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 October 16, 1995, has duly adopted the following
recitals and resolutions:
"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,
of which 100,000 shares are issued and outstanding; 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 determine
and fix the rights, preferences, privileges and restrictions relating to a
second series of said Preferred Stock, and to fix the number of shares
constituting and the designation of such series;
"NOW, THEREFORE, BE IT RESOLVED, that there is hereby authorized a
series of Preferred Stock on the terms and with the provisions herein set
forth:
Section 1. Designation, Number and Restrictions on Issuance. The
designation of the series of Preferred Stock authorized by these
resolutions shall be "5% Series B Cumulative Convertible Preferred Stock"
(the "Series B Preferred Stock"). The authorized number of shares
constituting the Series B Preferred Stock shall be Two Hundred Thousand
(200,000) 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 B 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.
Section 2. Conversion Rights.
2.1. As used herein, the term "Common Stock" shall mean and include
the Corporation's Common Stock, no par value, as constituted on September
1, 1995, and as the same shall be constituted thereafter including
adjustments required for any capital reorganization or reclassification
thereof subsequent to September 1, 1995. At any time hereafter and up to
the close of business on the second business day immediately preceding a
date fixed for redemption of Series B Preferred Stock in accordance with
Section 7 below, at the election of the respective holders of Series B
Preferred Stock and subject to the terms and conditions set forth herein,
issued and outstanding shares of the Series B Preferred Stock may be
converted into fully paid and nonassessable shares of Common Stock of the
Corporation at the conversion ratio of One (1) share of Common Stock for
each share of Series B Preferred Stock, subject to adjustment from time to
time as provided in Section 2.4 below (herein called the "Conversion
Ratio").
2.2. In order to exercise the conversion privilege, a holder of
outstanding shares of Series B Preferred Stock shall surrender certificates
for the Series B Preferred Stock to be converted and exchanged at the
principal office of the Corporation, and shall give written notice to the
Corporation at said office that the holder elects to convert such Series B
Preferred Stock into shares of the Corporation's Common Stock. Such notice
shall also state the name or names (with addresses) in which certificates
for shares of Common Stock issuable on such conversion shall be issued,
subject to compliance with applicable securities laws. No payment or
adjustment shall be made upon any
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conversion on account of any accrued and unpaid dividends on the Series B
Preferred Stock surrendered for conversion, and the right to payment of any
such accrued and unpaid dividends shall be waived and forfeited by
conversion into Common Stock.
2.3. The Corporation shall not issue fractions of shares of Common
Stock upon conversions of shares of Series B Preferred Stock. If more than
one certificate representing shares of the Series B Preferred Stock shall
be surrendered for conversion at one time by the same holder, the number of
full shares of Common Stock which shall be issuable upon conversion thereof
shall be computed on the basis of the aggregate number of shares of Series
B Preferred Stock so surrendered. If any fractional interest in a share of
Common Stock would otherwise be deliverable upon the conversion of any
shares of Series B Preferred Stock, the Corporation shall pay a cash
adjustment in respect of such fractional interest in an amount equal to the
current market value of such fractional interest. Any such current market
value shall be computed on the basis of the last reported sale price of
Common Stock on any securities exchange or as reported by the National
Association of Securities Dealers Automated Quotation System (or the quoted
closing bid price if there be no sales on such date) at the close of
business on the date of conversion (or, if such day is not a trading day,
on the next preceding trading day). So long as there is outstanding any
Series B Preferred Stock, there shall be reserved unissued, out of the
authorized but unissued shares of Common Stock, a number of shares
sufficient to provide for conversion of Series B Preferred Stock in
accordance with the provisions of this Section 2.
2.4. The Conversion Ratio shall be subject to adjustment from time to
time hereafter as follows:
(A) In case the Corporation at any time after September 1, 1995 shall
issue a stock dividend on its outstanding shares of Common Stock or shall
subdivide or combine the outstanding shares of Common Stock issuable upon
conversion of the Series B Preferred Stock, the Conversion Ratio and number
of shares issuable upon conversion of the Series B Preferred Stock shall be
proportionately and equitably adjusted as if the holder of record of Series
B Preferred Stock had converted shares of Series B Preferred Stock into
Common Stock immediately prior to such event. Any such adjustment shall
become effective at the close of business on the date that such stock
dividend, subdivision or combination relating to the Common Stock shall
become effective. For the purposes of such adjustment, the Conversion Ratio
in effect immediately prior to such stock dividend, subdivision or
combination shall forthwith be changed to a Conversion Ratio determined by:
(i) dividing the total number of shares of Common Stock
outstanding immediately after the stock dividend, subdivision or
combination, by an amount equal to the total number of shares of
Common Stock outstanding immediately prior to such stock dividend,
subdivision or combination; and
(ii) multiplying the result of clause (i) above by the actual
Conversion Ratio in effect immediately prior to such stock dividend,
subdivision or combination.
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and the total of shares of Common Stock thereafter issuable and
deliverable on conversion of the Series B Preferred Stock shall be the
number of shares obtained by applying the Conversion Ratio as so
adjusted.
(B) In case of any capital reorganization or any reclassification
of the shares of Common Stock of the Corporation (other than as a
result of a stock dividend, subdivision or combination, as aforesaid),
or in case of any consolidation with or merger of the Corporation into
or with another corporation, or the sale, lease or other disposition
of the properties of the Corporation as an entirety or substantially
as an entirety, then as a part of such reorganization,
reclassification, consolidation, merger, sale, lease or other
disposition, as the case may be, lawful provision shall be made so
that the holders of record of the Series B Preferred Stock shall have
the right thereafter to receive upon conversion thereof the kind and
amount of shares of stock or other securities or property which such
holders would have been entitled to receive if, immediately prior to
such reorganization, reclassification, consolidation, merger, sale,
lease or other disposition, such holders had held the number of shares
of Common Stock which were then issuable upon the conversion of the
Series B Preferred Stock then held by them. In any such case,
appropriate adjustment shall be made in the application of the
provisions set forth herein with respect to the rights and interests
thereafter of the holders of record of the Series B Preferred Stock,
to the end that the provisions set forth herein (including provisions
with respect to adjustments of the Conversion Ratio) shall thereafter
be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon the
conversion of such Series B Preferred Stock.
2.5. Upon any conversion of Series B Preferred Stock in
accordance with the foregoing, all of such shares of Series B
Preferred Stock shall be cancelled and revert to the status of
authorized and unissued shares of Preferred Stock.
Section 3. Voting Rights. The holders of Series B Preferred Stock
shall be entitled to one vote per share on all matters on which
stockholders of the Corporation are entitled to vote, in addition to
any voting rights required by law; provided, however, that in the
event there shall be an adjustment in the Conversion Ratio pursuant to
the provisions of Section 2.4 above, the number of votes per share for
Series B Preferred Stock shall be similarly adjusted so that the votes
per share of Series B Preferred Stock shall at all times be equal to
the number of full shares of Common Stock into which such shares of
Series B Preferred Stock may be converted.
Section 4. Rank and Preference. Shares of Series B Preferred
Stock shall, with respect to dividend rights, rights on redemption and
rights on liquidation, winding up and dissolution, have preference
over and rank prior to all classes of Common Stock and shall rank pari
passu with all other series of Preferred Stock. In case the stated
dividends and the amounts payable on liquidation, distribution or sale
of assets, dissolution or winding up of the Corporation are not paid
in full, the shareholders of all series of Preferred Stock shall share
ratably in the payment of dividends, including accumulations, if any,
in accordance with
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the sums which would be payable on such shares if all dividends were
declared and paid in full and in any distribution of assets other than
by way of dividends, in accordance with the sums which would be
payable on such distribution if all sums payable were discharged and
paid in full.
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, 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 quarterly-annually on the last days of March, June, September
and December of each year. In the event any shares of Series B
Preferred Stock shall be outstanding for less than the period covered
by such dividend year, the amount of the dividend shall be prorated
for such period. 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.
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 Common
Stock, shall be declared by the Board of Directors on any class or
series of equity securities of the Corporation other than its 10%
Series A Cumulative Convertible Preferred Stock 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.
Section 6. Liquidation, Dissolution or Winding-Up.
6.1. In the event of any liquidation, dissolution or winding up
of the Corporation, either voluntary or involuntary, the holders of
Series B Preferred Stock then outstanding shall be entitled to receive
ratably, prior and in preference to any distribution of any of the
assets of the
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Corporation to the holders of any other equity securities of the
Corporation other than Preferred Stock, by reason of their ownership
thereof, the sum of TWO DOLLARS AND FIFTY CENTS ($2.50) per share
outstanding plus all accrued and unpaid dividends thereon, each
payable in cash (which may be payable from either capital or surplus)
or, if cash is not then available, in property of the Corporation. In
the event it is necessary or advisable for the Corporation to
determine the value of property for any purpose hereunder, the value
of such property so received by holders of Series B Preferred Stock
will be deemed to be its fair market value as determined in good faith
by the Board of Directors of the Corporation unless a majority in
interest of the holders of issued and outstanding Series B Preferred
Stock shall demand an independent appraisal of such property. If, upon
the occurrence of any such event, the assets thus distributed among
the holders of the Series B Preferred Stock shall be insufficient to
permit the payment to such holders of the full preferential amount due
to them hereunder, then the entire assets of this Corporation legally
available for distribution shall be distributed ratably among the
holders of all series of the Preferred Stock. Except as provided
above, holders of the Series B Preferred Stock shall not be entitled
to any distribution in the event of liquidation, dissolution or
winding up of the affairs of the Corporation.
6.2. For the purposes of this Section 6, a sale of all or
substantially all of the assets of this Corporation or a merger of the
Corporation with or into any other corporation or corporations where
the Corporation is not the surviving entity, shall not be deemed to be
a liquidation, dissolution or winding-up of the Corporation within the
meaning of Section 6.1 unless no provision has been made for the
exchange of securities for Series B Preferred Stock in connection with
the consummation of any such sale of assets or merger.
6.3. The liquidation payment with respect to each outstanding
fractional share of Series B Preferred Stock shall be equal to a
ratably proportionate amount of the liquidation payment with respect
to each outstanding share of Series B Preferred Stock.
Section 7. Redemption.
7.1. NO MANDATORY REDEMPTION. The Corporation shall have no
mandatory obligation to redeem shares of Series B Preferred Stock;
provided, however, in the event of any liquidation, dissolution or
winding-up of the Corporation, either voluntary or involuntary, or in
the event or sale of all or substantially all of the assets of this
Corporation or a merger of the Corporation with or into any other
corporation or corporations where the Corporation is not the surviving
entity and in which no provision has been made for the exchange of
securities for Series B Preferred Stock, each share of Series B
Preferred Stock then outstanding shall be entitled to receive the
consideration specified in Section 6.1 above.
7.2. OPTIONAL REDEMPTION. The Corporation at its option, at any
time and from time to time, may redeem all or any portion of the
Series B Preferred Stock (and if only a portion, in an amount equal to
an even multiple of 10,000 shares) then outstanding at a redemption
price of FIVE DOLLARS ($5.00) per share plus the payment of all
accrued and unpaid
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dividends on the shares so redeemed.
7.3. Upon any redemption of Series B Preferred Stock, written
notice shall be given to the holders of the Series B Preferred Stock
for shares to be purchased or redeemed at least thirty (30) days prior
to the date fixed for redemption. The notice shall be addressed to
each such stockholder at the address of such holder appearing on the
books of the Corporation or given by such holder to the Corporation
for the purpose of notice, or, if no such address appears or is so
given, at the last known address of such shareholder. Such notice
shall specify the date fixed for redemption, shall state that all
shares of Series B Preferred Stock outstanding are to be redeemed and
the number of shares of Series B Preferred Stock to be so redeemed,
and shall call upon such holder to surrender to the Corporation on
said date, at the place designated in the notice, such holder's
certificate or certificates representing the shares to be redeemed on
the date fixed for redemption stated in such notice. Unless such
person shall elect to convert the same into Common Stock in accordance
with Section 2 above, each holder of shares of Series B Preferred
Stock called for redemption shall surrender the certificate or
certificates evidencing such shares to the Corporation at the place
designated in such notice and shall thereupon be entitled to receive
payment of the redemption price on the date fixed for redemption.
7.4. If, on or prior to any date fixed for redemption, the
Corporation deposits, with any bank or trust company in the State of
New York, as a trust fund, a sum sufficient to redeem all shares of
Series B Preferred Stock called for redemption which have not
theretofore been surrendered for conversion, with irrevocable
instructions and authority to the bank or trust company to pay, on or
after the date fixed for redemption, the redemption price of the
shares to their respective holders upon the surrender of their share
certificates, then from and after the date of redemption the shares to
be redeemed shall be redeemed and dividends and other distributions on
those shares shall cease to accrue after the date such shares were
called for redemption. The deposit shall constitute full payment for
the shares of Series B Preferred Stock to their holders and from and
after the date of the deposit the shares of Series B Preferred Stock
shall no longer be outstanding, and the holders thereof shall cease to
be shareholders with respect to such shares, and shall have no rights
with respect thereto except the right to receive from the bank or
trust company payment of the redemption price of the shares without
interest upon surrender of their certificates therefor and the right
to receive from the Corporation any accrued dividends thereon through
the date such shares were called for redemption. Any interest accrued
on any funds so deposited shall be the property of, and paid to, the
Corporation.
7.5. In the event that fewer than all the outstanding shares of
Series B Preferred Stock are to be redeemed, the number of shares to
be redeemed shall be determined by the Board of Directors and the
shares to be redeemed shall be selected by lot or pro rata as may be
determined by the Board of Directors. In case it shall designate by
lot the shares so to be redeemed, the Board of Directors shall have
full power and authority to prescribe the manner in which the drawings
by lot shall be conducted.
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7.6. Notwithstanding anything contained herein to the contrary,
the Corporation may not redeem any shares of Series B Preferred Stock
and no sums therefor shall be paid or set aside for payment by the
Corporation if, at the time and after giving effect to such payment,
the same is prohibited by the laws of the State of Nevada.
7.7. Upon any redemption of Series B Preferred Stock in
accordance with the foregoing, all of such shares of Series B
Preferred Stock shall be cancelled and revert to the status of
authorized and unissued shares of Preferred Stock.
Section 8. Required Notices. In case at any time:
(a) the Corporation shall declare or pay any dividend payable in
stock or other consideration or make any distribution to the
holders of its Common Stock; or
(b) the Corporation shall offer to the holders of its Common Stock
any additional shares of stock of any class or other rights;
(c) there shall be any capital reorganization or reclassification of
the capital stock of the Corporation, or any consolidation or
merger of the Corporation with, or sale of all or substantially
all of its assets to, another corporation; or
(d) there shall be a voluntary or involuntary dissolution,
liquidation or winding-up of the Corporation;
then, in any one or more of such cases, the Corporation shall cause to
be mailed to the holders of record of then outstanding shares of
Series B Preferred Stock (i) at least 30 days' prior written notice of
the date on which the books of the Corporation shall close or a record
shall be taken for such dividend, distribution or subscription rights
or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding-up, and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, sale,
dissolution, liquidation or winding-up, at least 30 days' prior
written notice of the date when the same shall take place. Such notice
in accordance with the foregoing clause (i) shall also specify, in the
case of any such dividend, distribution or subscription rights, the
date on which the holders of Common Stock shall be entitled thereto,
and such notice in accordance with the foregoing clause (ii) shall
also specify the date on which the holders of Common Stock shall be
entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification,
consolidation, merger, sale, dissolution, liquidation or winding-up,
as the case may be.
Section 9. Amendments and Additional Covenants.
9.1. So long as any Series B Preferred Stock shall be
outstanding, this Corporation shall not, without the prior approval of
the holders of not less than a majority of the then issued and
outstanding shares of Series B Preferred Stock voting as a class,
permit the Corporation to amend or repeal any provision of, or add any
provision to, this Certificate or the Corporation's Articles of
Incorporation or bylaws, if
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such action would alter or change the preferences, rights, privileges
or powers of, or the restrictions provided for the benefit of, the
Series B Preferred Stock.
9.2. So long as any Series B Preferred Stock shall be
outstanding, the Corporation shall:
9.2.1 maintain its books of account and financial statements and
records in accordance with generally accepted accounting
principles, and all determinations hereunder, if any, which
are dependent upon a calculation of the Corporation's
financial condition shall be determined in accordance with
generally accepted accounting principles;
9.2.2 promptly pay and discharge, or cause to be paid and
discharged, when due and payable, all lawful taxes,
assessments and governmental charges or levies imposed upon
the income, profits, property, or business of the Corporation
or any subsidiary, except where the Corporation is contesting
any of the foregoing in good faith by appropriate proceedings;
and
9.2.3 keep its properties in good repair, working order, and
condition, reasonable wear and tear excepted, and from time to
time make all needful and proper repairs, renewals,
replacements, additions, and improvements thereto, and the
Corporation shall at all times comply with the provisions of
all material leases to which it is a party or under which it
occupies property so as to prevent any loss or forfeiture
thereof or thereunder.
9.3. So long as any Series B Preferred Stock shall be
outstanding, the Corporation shall furnish to each holder of record of
the Series B Preferred Stock as soon as practicable, but in any event
within 150 days after the end of each fiscal year of the Corporation,
an income statement, statement of cash flow and statement of changes
in stockholders' equity for such fiscal year, and a balance sheet of
the Corporation as of the end of such year, such year-end financial
statements to be in reasonable detail, prepared in accordance with
generally accepted accounting principles, and audited and certified by
independent public accountants selected by the Board of Directors of
the Corporation.
RESOLVED FURTHER, that the President or any Vice President of
this Corporation and the Secretary or any Assistant Secretary of the
Corporation are hereby authorized and directed to prepare, sign, and
file with the Secretary of the State of Nevada a Certificate of
Designation of Series B Preferred Stock of the Corporation in
accordance with the resolutions set forth herein."
(3) We further certify that the authorized number of shares of
Preferred Stock of this Corporation is 5,000,000 shares; that the number of
shares constituting the first series of Preferred Stock, of which 100,000 shares
have been issued, is 790,000 shares, and that the number of shares constituting
the second series of Preferred Stock established by the foregoing resolutions,
none of which have been issued, is 200,000 shares.
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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
Province of Ontario }
} s.
County of Essex }
On October 25th, 1995, 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
Gabriel Joseph Courey
State of New York }
} s.
County of New York }
On Oct. 30, 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/ PATRICIA MURRAY
---------------------------
Signature of Notary
[Notary Stamp]
PATRICIA MURRAY
Notary Public, State of New York
No. 31-4793355
Qualified in New York County
Commission Expires 11-30 1996