Unassociated Document


    CERTIFICATE
      OF DESIGNATION

     

    OF
      THE

     

    SERIES A
      CONVERTIBLE PREFERRED STOCK

     

    OF

     

    STAAR
      SURGICAL COMPANY

     

    Pursuant
      to Section 151

    of
      the


    General
      Corporation Law of the State of Delaware

     

    Pursuant
      to Section 103 of the Delaware General Corporation Law (the “DGCL”),
      STAAR
      Surgical Company, a corporation duly organized and existing under the laws
      of
      the State of Delaware (the “Corporation”),
      does
      hereby certify the following: 

     

    1.
      Article Fourth of the Certificate of Incorporation of the Corporation authorizes
      the issuance of up to ten million (10,000,000) shares of preferred stock,
      $.01 par value (the “Preferred
      Stock”),
      and
      expressly vests in the Board of Directors of the Corporation the authority
      to
      issue the shares of Preferred Stock, to act from time to time by resolution
      to
      establish one or more series of Preferred Stock, and to fix the designation,
      powers, preferences and rights of the shares of each such series and their
      qualifications, limitations, or restrictions.

     

    2.
      Pursuant to the authority described in the preceding paragraph, the Board of
      Directors, at a duly called meeting held on October 22, 2007, at which a
      quorum was present and acted throughout, adopted the following resolutions
      establishing a series of Preferred Stock:

     

    RESOLVED,
      that a series of the class of authorized Preferred Stock of the Corporation
      be
      and hereby is created, and that the designation and amount thereof and the
      voting powers, preferences and relative participating, optional and other
      special rights of the shares of such series, and the qualifications, limitations
      or restrictions thereof are as follows:

     

    Series A
      Convertible Preferred Stock

     

    1.  Designation
      and Amount.
      The
      shares of the series created by these resolutions shall be designated
“Series A Convertible Preferred Stock” (the “Series A
      Preferred Stock”)
      and
      the number of shares constituting such series shall be one million seven hundred
      thousand (1,700,000).

     

    2.  Dividends
      and Distributions.
      The
      Series A Preferred Stock shall have the right to participate pari passu in
      any dividend or distribution paid with respect to the Common Stock, if as and
      when declared by the Board of Directors, based on the number of shares of Common
      Stock into which a share of Preferred Stock is convertible hereunder as of
      the
      record date for such dividend or distribution.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    3.  Liquidation
      Preference.
      In the
      event of any voluntary or involuntary liquidation, dissolution or winding up
      of
      the Corporation, or the acquisition of the Corporation by another entity by
      means of any reorganization, merger or consolidation, or any transaction in
      which the Corporation’s stockholders of record as constituted immediately prior
      to such transaction (by virtue of securities issued in such transaction) fail
      to
      hold, directly or indirectly, more than 50% of the voting power of the resulting
      or surviving corporation following such transaction (but excluding, however,
      any
      reorganization, merger or consolidation effected exclusively for the purpose
      of
      changing the domicile of the Corporation) (an “Acquisition
      Transaction”),
      or a
      sale, lease, license or disposition of all or substantially all of the assets
      of
      the Corporation (collectively, a “Liquidation”),
      the
      holders of the outstanding shares of Series A Preferred Stock shall be
      entitled to receive, out of the assets of the Corporation available for
      distribution to its stockholders, whether from capital, surplus funds or
      earnings, prior and in preference to any distribution of any of the assets
      of
      the Corporation to the holders of the Common Stock, and any other series of
      Preferred Stock (except with respect to a reorganization, merger, consolidation
      or an Acquisition Transaction, such Preferred Stock that has been designated
      for
      issuance upon exercise of rights issued to the Corporation’s stockholders
      pursuant to a stockholder rights plan (“Stockholder Rights Plan”)), an amount
      per share equal to the Redemption Price for such share, as defined in
Section 6(a)
      below.
      After the full liquidation preference of the holders of the outstanding shares
      of Series A Preferred Stock has been satisfied as set forth in this
Section 3,
      the
      Series A Preferred Stock shall have no right to participate in the
      distribution of the remaining assets of the Corporation. Until the effective
      date of the Liquidation, each holder of Series A Preferred Stock may elect
      to convert such holder’s Shares to Common Stock and participate in the proceeds
      of the Liquidation to be paid to holders of Common Stock in lieu of any
      liquidation preference.

     

    4.  Conversion
      Rights.
      The
      Series A Preferred Stock shall be convertible at no cost to the holder into
      shares of Common Stock as set forth in this Section 4.
      The
      shares of Common Stock issuable on such conversion (the “Conversion
      Shares”)
      shall
      be equal to the number of shares of Series A Preferred Stock converted
      times the Conversion Ratio as defined in Section 4(d)
      below;
      provided, however, that, subject to the provisions of Section
      6(h)
      below,
      following due notice by the Corporation of a Change of Control as provided
      in
      Section 5(b) the conversion right set forth in this Section 4(a) shall expire
      two (2) days prior to the effective date of the Change of Control set forth
      in
      the notice.

     

    (a)  Conversion
      at Option of Holder.
      Each
      holder of Series A Preferred Stock shall have the right, at the option of
      the holder at any time after the date on which shares of Series A Preferred
      Stock first are issued (the “Issue
      Date”),
      to
      convert each of the holder’s shares of Series A Preferred Stock into fully
      paid and nonassessable shares of Common Stock in a number equal to the
      Conversion Ratio (as defined in Section 4(d)
      below)
      as of the effective date of the conversion.

     

    (b)  Mechanics
      of Conversion at Option of Holder.
      Before
      any holder of Series A Preferred Stock shall be entitled to receive the
      Conversion Shares issuable pursuant to Section 4(a),
      the
      holder shall surrender the certificate or certificates therefor, duly endorsed,
      at the office of the Corporation or of any transfer agent for the Series A
      Preferred Stock, and shall give written notice to the Corporation at its
      principal corporate office of the election to convert the shares of Preferred
      Stock. The notice shall state the name or names in which the certificate or
      certificates for shares of Common Stock are to be issued, and the address or
      addresses to which the certificates are to be delivered. The Corporation shall,
      as soon as practicable, but in any event in no less than seven (7) business
      days
      thereafter, issue the Conversion Shares issuable with respect to the surrendered
      shares, and deliver the certificates evidencing the Conversion Shares to the
      address or addresses set forth in the notice. The cancellation of the
      surrendered shares of Series A Preferred Stock and the issuance of the
      Conversion Shares of Common Stock shall be deemed to have occurred immediately
      prior to the close of business on the date the shares of Series A Preferred
      Stock to be converted are surrendered to the Corporation or the transfer agent,
      and the person or persons entitled to receive the shares of Common Stock
      issuable upon such conversion shall be treated for all purposes as the record
      holder or holders of such shares of Common Stock as of such date.

     

    
      
        
        

      

      
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    (c)  Automatic
      Conversion.
      At
      12:01 a.m. on the fifth (5th)
      anniversary of the Issue Date (the “Preferred
      Termination Date”),
      each
      share of Series A Preferred Stock shall automatically be converted into the
      number of fully paid and nonassessable shares of Common Stock equal to the
      Conversion Ratio as of the Preferred Termination Date. The record holder of
      each
      share of Series A Preferred Stock shall be treated for all purposes as the
      record holder of the related Conversion Shares as of the Preferred Termination
      Date. From and after the Preferred Termination Date, any unredeemed and
      otherwise validly outstanding certificate for the Series A Preferred Stock
      shall be deemed cancelled and to be evidence only of the Conversion Shares
      issuable with respect to the shares of Series A Preferred Stock enumerated
      on such certificate. After the Preferred Termination Date, upon surrender to
      the
      Corporation by the holder of a certificate of Series A Preferred Stock the
      holder will be entitled to receive certificates evidencing the Conversion
      Shares.

     

    (d)  Conversion
      Ratio.
      The
      number of shares of Common Stock issuable on the conversion of one share of
      Series A Preferred Stock (the “Conversion
      Ratio”)
      shall
      be equal to the Redemption Price divided by $4.00, subject to adjustments from
      time to time as follows:

     

    (i)  Splits,
      Reverse Splits, Combinations, Stock Dividends and the Like.
      If,
      after the Issue Date, the Corporation fixes a record date for a split, reverse
      split, subdivision or combination of the outstanding shares of Common Stock,
      or
      the determination of holders of Common Stock entitled to receive a dividend
      or
      other distribution payable in additional shares of Common Stock or other
      securities or rights convertible into, or entitling the holder thereof to
      receive directly or indirectly, additional shares of Common Stock (hereinafter
      referred to as “Common
      Stock Equivalents”)
      without payment of any consideration by such holder for the additional shares
      of
      Common Stock or the Common Stock Equivalents (including the additional shares
      of
      Common Stock issuable upon conversion or exercise thereof), then, as of such
      record date (or the date of such dividend distribution, split or subdivision
      if
      no record date is fixed), the Conversion Ratio shall be adjusted by multiplying
      the Conversion Ratio in effect prior to such event by a fraction, the
      denominator of which is the total number of shares of Common Stock and Common
      Stock Equivalents issued and outstanding immediately prior to such event, and
      the numerator of which is the number of shares of Common Stock and Common Stock
      Equivalents to be outstanding immediately after such event.

     

    (ii)  Recapitalization,
      Reclassification or Reorganization.
      If the
      Corporation shall undergo any capital reorganization or any reclassification
      of
      the stock of the Corporation (other than as a result of a stock dividend or
      subdivision, split-up or combination of shares) or a reorganization, merger
      or
      consolidation that does not constitute or result in a Change of Control (as
      defined in Section 5(a)),
      then
      the Conversion Ratio shall be adjusted so that after such transaction a holder
      of Series A Preferred Stock will receive on conversion of such holder’s
      shares the same number and kind of securities that such holder would receive
      in
      consideration of the Conversion Shares had such holder converted the Preferred
      Stock immediately prior to such event.

     

    
      
        
        

      

      
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    (e)  Fractional
      Shares.
      No
      fractional shares shall be issued upon conversion of any share or shares of
      the
      Series A Preferred Stock and the number of shares of Common Stock to be
      issued shall be rounded to the nearest whole share. Whether or not fractional
      shares are issuable upon such conversion shall be determined on the basis of
      the
      total number of shares of Series A Preferred Stock the holder is at the
      time converting into Common Stock and the total number of shares of Common
      Stock
      issuable upon such aggregate conversion. If, after the aforementioned
      determination, the conversion would result in the issuance of a fraction of
      a
      share of Common Stock, the Corporation, shall, in lieu of issuing any fractional
      share, pay the holder otherwise entitled to such fraction a sum in cash equal
      to
      the fair market value of such fraction on the date of conversion.

     

    (f)  Reservation
      of Stock Issuable Upon Conversion.
      The
      Corporation shall at all times reserve and keep available out of its authorized
      but unissued shares of Common Stock, solely for the purpose of effecting the
      conversion of the shares of the Series A Preferred Stock, such number of
      its shares of Common Stock as shall from time to time be deemed sufficient
      to
      effect the conversion of all outstanding shares of the Series A Preferred
      Stock; and if at any time the number of authorized but unissued shares of Common
      Stock shall not be sufficient to effect the conversion of all then outstanding
      shares of the Series A Preferred Stock, the Corporation will take such
      corporate action as may, in the opinion of its counsel, be necessary to increase
      its authorized but unissued shares of Common Stock to such number of shares
      as
      shall be sufficient for such purpose, including, without limitation, engaging
      in
      best efforts to obtain the requisite stockholder approval of any necessary
      amendment to this Certificate.

     

    (g)  Issue
      Taxes.
      The
      Corporation shall pay any and all issue and other taxes and costs that may
      be
      payable in respect of any issue or delivery of shares of Series A Preferred
      Stock or Common Stock issued on conversion of the Series A Preferred Stock
      pursuant hereto.

     

    (h)  No
      Impairment.
      The
      Corporation will not, by amendment of its Certificate of Incorporation or
      through any reorganization, transfer of assets, consolidation, merger,
      dissolution, issue or sale of securities or any other voluntary action, avoid
      or
      seek to avoid the observance of performance of any of the terms to be observed
      or performed hereunder by the Corporation, but will at all times in good faith
      assist in the carrying out of all the provisions of this Section 4
      and in
      the taking of all such actions as may be necessary or appropriate in order
      to
      protect the rights of the holders of the Series A Preferred Stock against
      impairment.

     

    (i)  Certificates
      of Adjustment.
      Upon the
      occurrence of each adjustment or readjustment of the Conversion Ratio pursuant
      to this Section 4,
      the
      Corporation at its expense shall promptly compute such adjustment or
      readjustment in accordance with the terms hereof and prepare and furnish to
      each
      holder of Series A Preferred Stock a certificate executed by the Corporation’s
      President or Chief Financial Officer setting forth such adjustment or
      readjustment and showing in detail the facts upon which such adjustment or
      readjustment is based. The Corporation shall, upon the written request at any
      time of a holder of Series A Preferred Stock, furnish or cause to be
      furnished to such holder a like certificate setting forth (i) such adjustments
      and readjustments, (ii) the Conversion Ratio at the time in effect and (iii)
      the
      number of shares of Common Stock and the amount, if any, of other property
      which
      at the time would be received upon the conversation of the Series A Preferred
      Stock.

     

    
      
        
        

      

      
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    (j)  Notices.
      In
      the
      event that the Corporation shall determine to effect or undergo any of the
      events described in Section 4(d),
      then,
      in connection with each such event, the Corporation shall send to the holders
      of
      Series A Preferred Stock (i) at least twenty (20) days’ prior written
      notice of the date on which, if applicable, a record shall be taken for any
      related dividend, distribution or subscription rights (and specifying the date
      on which the holders of Common Stock shall be entitled thereto) or for
      determining rights to vote, if any, with respect to such matter and (ii) at
      least twenty (20) days’ prior written notice of the date when the matter in
      question shall be consummated (and, if applicable, specifying the date on which
      the holders of Common Stock shall be entitled to exchange their Common Stock
      for
      securities or other property deliverable upon the occurrence of such event).
      Each such written notice (or a subsequent notice given at least ten (10) days
      prior to any events described in Section 4(d))
      shall
      set forth, in reasonable detail, (i) the event requiring the notice and (ii)
      if
      an adjustment is required to be made, (A) the amount of such adjustment, (B)
      the
      method by which such adjustment was calculated and (C) the adjusted Conversion
      Ratio (if the Conversion Ratio has been adjusted). Failure to timely provide
      such notice shall entitle the holders of Series A Preferred Stock to retain
      the benefit of the applicable notice period notwithstanding anything to the
      contrary contained in any insufficient notice received by such holder. The
      notice period shall begin on the date such holder actually receives a written
      notice containing all the information required to be provided in this
Section
      4(j),
      such
      receipt evidenced by (i) a receipt from an established international courier
      of
      delivery confirming verification of receipt, (ii) a return receipt of a
      registered or certified mail delivery or (iii) a confirmation of transmission
      of
      a facsimile or confirmation of delivery of electronic mail.

     

    5.  Change
      of Control.

     

    (a)  Definition
      Change of Control.
      “Change
      of Control”
shall
      mean the acquisition by any individual, entity or group (within the meaning
      of
      Section 13(d)(3) or 14(d)(2) of the Securities Exchange Act of 1934, as amended
      (the “Exchange
      Act”))
      of
      beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
      Exchange Act) of more than 50% of the combined voting power of the then
      outstanding Common Stock and any other securities of the Corporation entitled
      to
      vote generally in the election of directors (the “Voting
      Securities”),
      but
      excluding, for this purpose, any such acquisition by (i) a parent or subsidiary
      of the Corporation, (ii) any corporation with respect to which, following such
      acquisition, a majority of the combined voting power of the then outstanding
      securities of such corporation entitled to vote generally in the election of
      directors is then beneficially owned, directly or indirectly, by individuals
      and
      entities who were the beneficial owners of the Voting Securities of the
      Corporation immediately prior to such acquisition in substantially the same
      proportion as their ownership, immediately prior to such acquisition, of the
      Voting Securities.

     

    (b)  Notice
      of Change in Control.
      The
      Corporation shall give each holder of record of Series A Preferred Stock
      written notice of an impending Change of Control not later than twenty (20)
      days
      prior to the earlier of (i) any record date relating to such Change of Control,
      (ii) any stockholders’ meeting called to approve such transaction, or (iii) the
      closing of such transaction, and shall also notify such holders in writing
      of
      the final approval of such transaction, the intended effective date, and that,
      subject to the provisions of Section
      6(h)
      below,
      the holders’ option to convert the shares of Series A Preferred Stock shall
      expire at the close of business on the second (2nd) business day prior to the
      effective date of the transaction. Such notice shall describe the material
      terms
      and conditions of the impending transaction, and the Corporation shall
      thereafter give such holders prompt notice of any material changes. The
      transaction shall in no event take place sooner than twenty (20) days after
      the
      Corporation has given the first notice provided for herein or sooner than ten
      (10) days after the Corporation has given notice of any material changes
      provided for herein; provided, however, that such periods may be shortened
      upon
      the written consent of the holders of a majority of the Series A Preferred
      Stock.

     

    
      
        
        

      

      
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    6.  Redemption
      and Voting Rights.

     

    (a)  Definition
      of Redemption Price.
      The
      Redemption Price as of any date shall be the sum of (i) US$4.00 per share plus
      (ii) an amount equal to the sum of all accrued or declared but unpaid dividends,
      if any, on such share.

     

    (b)  Redemption
      Pursuant to Call Right of the Corporation. At
      any
      time on or after the first anniversary of the Issue Date, and as permitted
      under
      Section 160 of the DGCL, the Corporation may redeem all of the outstanding
      shares of Series A Preferred Stock at the Redemption Price by delivering a
      notice of redemption (a “Call
      Notice”)
      to the
      holders, which Call Notice shall specify a Redemption Date not less than thirty
      (30) or more than ninety (90) days from the date of such notice; provided,
      however,
      that
      each holder of shares of Series A Preferred Stock will continue to have the
      right to convert such shares until the close of business on the fifth (5th)
      business day prior to the Redemption Date.

     

    (c)  Redemption
      at Option of Holders.
      At any
      time on or after the third anniversary of the Issue Date, upon the written
      request of the holders of a majority of the outstanding shares of Series A
      Preferred Stock (which request shall be accompanied by the certificate(s),
      duly
      endorsed, evidencing such holders’ shares and specify a Redemption Date not less
      than thirty (30) or more than ninety (90) days from the date of such request),
      the Corporation shall redeem all of the issued and outstanding shares of
      Series A Preferred Stock on the specified Redemption Date at the Redemption
      Price. Upon delivery of such request all conversion rights of the Series A
      Preferred Stock shall terminate. If less than all of the shares of Series A
      Preferred Stock are included in the request, the Corporation shall provide
      notice to the remaining holders that the Series A Preferred Stock has been
      redeemed, together with instructions for tendering the certificates for such
      stock.

     

    (d)  Redemption
      upon Liquidation or Change of Control.
      On or
      prior to the effective date of any Change in Control or Liquidation of the
      Corporation, any holder of shares of Series A Preferred Stock may elect to
      have redeemed at the Redemption Price such shares of Series A Preferred
      Stock that are issued and outstanding on such date; provided,
      however, that,
      subject to the provisions of Section
      6(h) below,
      each holder of shares of Series A Preferred Stock will continue to have the
      right to convert such shares until the close of business on the second (2nd)
      business day prior to the effective date of the transaction, at which time
      such
      right expires, and provided
      further, that
      if
      the Corporation has not timely provided to any record holder the notice
      specified in Section 4(j)
      or
Section 5(b),
      then
      until the fifteenth (15th) day after the Corporation has delivered such notice
      such holder shall have the right (the “Notice Failure Right”) to elect to be
      deemed to have redeemed or converted such holder’s shares of Series A
      Preferred Stock immediately before the effective date of the Liquidation or
      Change of Control. The Redemption Date for any redemption under this
Section 6(d)
      shall be
      the effective date of the Liquidation or Change of Control.

     

    
      
        
        

      

      
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    (e)  Effect
      of Redemption.
      If,
      with respect to all shares of Series A Preferred Stock to be redeemed, the
      Redemption Price has been timely paid, from and after the applicable Redemption
      Date all rights of the holders of the Series A Preferred Stock (except the
      right to receive the Redemption Price and any Notice Failure Right) shall cease
      with respect to such shares, and such shares shall not thereafter be transferred
      on the books of the Corporation or be deemed to be outstanding for any purpose
      whatsoever.

     

    (f)  Mechanics
      of Redemption.
      From
      and after any Redemption Date each holder of Series A Preferred Stock
      tendering shares for redemption shall surrender to the Corporation at its
      principal corporate office the certificate or certificates representing such
      shares (if not already surrendered pursuant to Section
      6(c)),
      duly
      endorsed, and thereupon the Redemption Price of such shares shall be paid by
      the
      Corporation after receipt of the shares to the person whose name appears on
      such
      certificate or certificates as the owner thereof and each surrendered
      certificate shall be cancelled.

     

    (g)  Payment
      of Redemption Price.
      The
      holders of Series A Preferred Stock shall be entitled to receive the
      Redemption Price on or before the later of the applicable Redemption Date and
      the date five (5) days after the receipt by the Corporation of the certificate
      for the redeemed shares, provided,
      however,
      that in
      no case shall the Corporation be required to pay a Redemption Price which in
      the
      aggregate would be in violation of Section 160 of the DGCL. In such event,
      following a redemption under Section
      6(c) or 6(d)
      those
      funds of the Corporation that are available hereunder for redemption shall
      be
      used to redeem the maximum number possible of such shares ratably among the
      holders of such shares to be redeemed. The tendered shares of Series A
      Preferred Stock for which the applicable Redemption Price is not received on
      or
      before the applicable Redemption Date shall be considered not to have been
      redeemed and shall remain outstanding and entitled to all the rights and
      preferences provided herein and shall be redeemed by the Corporation as soon
      as
      permitted pursuant to this Section 6(g).

     

    (h)  Deemed
      Redemption or Conversion.
      If any
      holder of shares of Series A Preferred Stock does not elect to have such shares
      redeemed pursuant to Section 6(d) or elect to convert such shares pursuant
      to
      Section 4, prior to the close of business on the second (2nd) business day
      prior
      to the effective date of any Change in Control or Liquidation of the Corporation
      (the “Calculation Date”), then upon the effective date of the Change in Control
      or Liquidation but immediately prior thereto, the issued and outstanding shares
      of Series A Preferred Stock shall automatically be deemed to have been converted
      or redeemed dependent on which action results in the higher ultimate proceeds
      payable to the holders of shares of Series A Preferred Stock (the “Higher
      Value”).
      For
      purposes of determining the Higher Value the following shall apply:

     

    (i)  if
      the
      proceeds are paid solely in cash, the Higher Value shall be the higher of (x)
      the aggregate Redemption Price for all shares of Series A Preferred Stock or
      (y)
      the amount that is the higher of (A) the aggregate amount which would be paid
      for all Conversion Shares in such transaction or (B) the aggregate value of
      the
      Conversion Shares based upon the closing price of the Conversion Shares on
      the
      Calculation Date as reported on the NASDAQ Stock Market (including, without
      limitation, the NASDAQ Global Select Market, the NASDAQ Global Market or the
      NASDAQ Capital Market, as applicable) or, if not listed on such exchange, on
      any
      other national securities exchange on which the shares of Common Stock of the
      Corporation are listed or, if not listed on any such other national securities
      exchange, the NASD OTC Bulletin Board or any other quotation facility on which
      the shares of Common Stock of the Corporation are quoted; provided, however,
      that if there is no regular trading market for such shares of Common Stock
      of
      the Corporation, the market value per share shall be determined in good faith
      by
      the Board of Directors;

     

    
      
        
        

      

      
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    (ii)  if
      the
      proceeds paid include securities of another entity, the Higher Value shall
      be
      the higher of (x) the aggregate Redemption Price for all shares of Series A
      Preferred Stock or (y) the amount that is the higher of (A) the aggregate
      valuation of such consideration for all Conversion Shares, as determined in
      good
      faith by the Corporation’s Board of Directors (without regard to any tax
      benefits or other special arrangements attributable to the holders of the
      Conversion Shares as a result of such Change in Control or Liquidation) or
      (B)
      the aggregate value of the Conversion Shares based upon the closing price of
      the
      Conversion Shares on the Calculation Date as reported on the NASDAQ Stock Market
      (including, without limitation, the NASDAQ Global Select Market, the NASDAQ
      Global Market or the NASDAQ Capital Market, as applicable) or, if not listed
      on
      such exchange, on any other national securities exchange on which the shares
      of
      Common Stock of the Corporation are listed or, if not listed on any such other
      national securities exchange, the NASD OTC Bulletin Board or any other quotation
      facility on which the shares of Common Stock of the Corporation are quoted;
      provided, however, that if there is no regular trading market for such shares
      of
      Common Stock of the Corporation, the market value per share shall be determined
      in good faith by the Board of Directors; and

     

    (iii)  if
      the
      proceeds consist of property other than cash or securities, the Higher Value
      shall be the higher of (x) the aggregate Redemption Price for all shares of
      Series A Preferred Stock or (y) the amount that is the higher of (A) the
      aggregate valuation of such property (as determined in good faith by the
      Corporation’s Board of Directors) for all Conversion Shares or (B) the aggregate
      value of the Conversion Shares based upon the closing price of the Conversion
      Shares on the Calculation Date as reported on the NASDAQ Stock Market
      (including, without limitation, the NASDAQ Global Select Market, the NASDAQ
      Global Market or the NASDAQ Capital Market, as applicable) or, if not listed
      on
      such exchange, on any other national securities exchange on which the shares
      of
      Common Stock of the Corporation are listed or, if not listed on any such other
      national securities exchange, the NASD OTC Bulletin Board or any other quotation
      facility on which the shares of Common Stock of the Corporation are quoted;
      provided, however, that if there is no regular trading market for such shares
      of
      Common Stock of the Corporation, the market value per share shall be determined
      in good faith by the Board of Directors.

     

    (i)  Voting
      Rights.
      The
      Series A Preferred Stock shall have no voting rights except as stated in
      this Section
      6,
      as
      required under the DGCL or as otherwise required by applicable law. Except
      for
      the issuance of Preferred Stock in connection with any Stockholder Rights Plan,
      so long as any shares of the Series A Preferred Stock remain outstanding, the
      Corporation shall not, without the vote or written consent of the holders of
      at
      least two thirds of the then outstanding shares of the Series A Preferred Stock,
      authorize or issue, or obligate itself to issue, any other equity security
      (including any security convertible into or exercisable for any equity security)
      senior to or pari
      passu
      with the
      Series A Preferred Stock as to dividend rights, conversion rights, redemption
      rights or liquidation preferences.

     

    
      
        
        

      

      
        -8-

        
          

        

      

      
        
        

      

    

     

    7.  Transfer
      of Shares by Initial Holders.
      The
      Series A Preferred Stock may be transferred only to (i) a third party so
      long as all shares of Series A Preferred Stock are transferred to a single
      entity and such entity is not involved in the research, development,
      manufacture, marketing, sale or distribution of implantable intraocular lenses,
      and related devices or glaucoma wicks, or (ii) affiliates of Canon Inc. or
      Canon
      Marketing Japan Inc. Upon any transfer or purported transfer of shares of
      Series A Preferred Stock to any other party, such shares will automatically
      be converted into Common Stock on the date of such transfer or purported
      transfer at the Conversion Ratio in effect on such date, and the certificate(s)
      therefor shall be deemed cancelled and to be evidence only of the Conversion
      Shares issuable with respect to the shares of Series A Preferred Stock
      enumerated on such certificate. The certificates for the shares of Series A
      Preferred Stock shall bear a legend, in addition to any other legends required
      by law, regulation or contract, as follows:

     

    “The
      transfer of Series A Preferred Stock is restricted by the Certificate of
      Designation, a copy of which may be obtained from the Secretary of the
      Corporation. Any transfer or attempted transfer not permitted under the
      Certificate of Designation shall result in the immediate conversion of the
      shares evidenced by this certificate into shares of Common Stock in the amount
      specified in the Certificate of Designation and the immediate termination of
      all
      rights, preferences and privileges of such shares of Series A Preferred
      Stock.”

     

    8.  Notices.
      Any
      notice required by the provisions of this Certificate of Designation shall
      be in
      writing, shall be deemed effectively given when addressed to each holder of
      record at the address of such holder appearing on the stock register of the
      Series A Preferred Stock, and shall be deemed given: (i) upon personal
      delivery to the party to be notified, (ii) when sent by confirmed facsimile
      if
      sent during normal business hours of the recipient, or if not, then on the
      next
      business day, (iii) five (5) days after having been sent by certified mail,
      return receipt requested, air mail postage prepaid, or (iv) three (3) days
      after
      deposit with a nationally recognized overnight courier, specifying next day
      delivery, with written verification of receipt. The holder or holders of a
      majority of the outstanding shares of Series A Preferred Stock may, at any
      time upon written notice to the Corporation, waive the time, but not below
      five
      (5) days, for notice pursuant to any notice provisions specified herein for
      the
      benefit of such holders, and any such waiver shall be binding upon all holders
      of such securities.

     

    9.  Transfer
      or Assignment.
      The
      rights of the Corporation hereunder (but not its obligations) may be transferred
      or assigned. Except as expressly set forth in Section 7,
      neither
      the Series A Convertible Preferred Stock nor any rights associated
      therewith may be transferred or assigned by the holder.

     

    10.  Ranking.
      Other
      than shares of Preferred Stock issued pursuant to a Stockholder Rights Plan,
      the
      shares of Series A Preferred Stock shall rank senior to all other series of
      the Preferred Stock and to any other class of Preferred Stock that hereafter
      may
      be issued by the Corporation as to the payment of dividends and the distribution
      of assets upon liquidation.

     

    
      
        
        

      

      
        -9-

        
          

        

      

      
        
        

      

    

     

    11.  Reacquired
      Shares.
      Any
      shares of Series A Preferred Stock redeemed, converted or otherwise
      acquired by the Corporation in any manner whatsoever shall be retired and
      cancelled promptly after the acquisition thereof. All such shares shall, upon
      their cancellation, become authorized but unissued shares of Preferred Stock
      and
      may be reissued as part of a new series of Preferred Stock to be created by
      resolution or resolutions of the Board of Directors.

     

    The
      next page is the signature page.

     

    
      
        
        

      

      
        -10-

        
          

        

      

      
        
        

      

    

     

    


    IN
      WITNESS WHEREOF, STAAR Surgical Company caused this Certificate of Designation
      to be signed by its Secretary this 24th day of December, 2007.

     

     

    /s/Charles
      Kaufman

    Charles
      Kaufman

    Secretary

     

    
      
        
        

      

      
        -11-