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EXHIBIT 4.0
ARTICLES OF AMENDMENT TO
ARTICLES OF INCORPORATION OF
LOGAN INTERNATIONAL CORP.
Logan International Corp., a Washington corporation, hereby amends its
Articles of Incorporation to create a new class of preferred shares.
1. The name of the corporation is Logan International Corp.
2. The text of the amendment creating the class of preferred
shares is:
SECTION 1
ISSUE PRICE
1.1 The issue price for the Preferred Stock, Series B shall be
determined by resolution of the board of directors of the Corporation.
SECTION 2
DIVIDENDS
2.1 Payment of Dividends
The holders of the Preferred Stock, Series B shall be entitled
to receive, and the Corporation shall pay thereon, as and when declared by the
board of directors out of monies properly applicable to the payment of
dividends, fixed cumulative preferential cash dividends at the rate of 5% per
share per annum (the "Dividend Payment") on the amount paid-up thereon payable
in arrears on December 31 of each year (the "Dividend Payment Date").
Dividends on the Preferred Stock, Series B shall accrue from and including the
date of issuance. Cheques of the Corporation or its dividend paying agent
payable at par at a chartered bank or trust company shall be issued in respect
of such dividends to the holders of the Preferred Stock, Series B entitled
thereto. The mailing of such cheques shall satisfy and discharge all liability
for the dividends represented thereby, unless the cheques are not paid on due
presentation. If on any Dividend Payment Date, the dividends payable on such
date are not paid in full on all of the Preferred Stock, Series B then issued
and outstanding, the dividends or the unpaid part thereof shall be paid on a
subsequent date or dates as determined by the board of directors. The holders
of the Preferred Stock, Series B shall not be entitled to any dividends other
than or in excess of the cash dividends provided for herein. A dividend which
is represented by a cheque which has not been presented for payment within six
years after it was issued shall be forfeited to the Corporation.
2.2 Dividend for Other than a Full Year
The amount per share of the dividend accrued for any period
which is less than a full year with respect to any Preferred Stock, Series B:
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(a) which is issued, redeemed or purchased; or
(b) where the assets of the Corporation are distributed to the
holders of Preferred Stock, Series B on the liquidation,
dissolution or winding-up of the Corporation, whether
voluntary or involuntary, or on any other distribution of
assets of the Corporation among its shareholders for the
purpose of winding up its affairs,
shall be equal to the amount (rounded to the nearest 1/100th of 1 cent)
calculated by multiplying the Dividend Payment by a fraction of which the
numerator is the number of days during the year that the share has been
outstanding (including the date of issuance or the first day of the year as
well as the Dividend Payment Date or date of redemption, purchase, or
distribution of assets, as applicable) and the denominator is 365.
2.3 Interest Payment
The holders of the Preferred Stock, Series B shall be entitled
to receive, as provided herein, an amount equivalent to interest at the rate of
8% per annum on the amount of all Dividend Payments not paid on their
respective Dividend Payment Dates and which remain outstanding from time to
time, which shall be compounded annually on each Dividend Payment Date (the
"Interest Amount").
SECTION 3
REDEMPTION AND PURCHASE
3.1 General
Subject to Section 6, the Preferred Stock, Series B may be
redeemed or purchased by the Corporation as provided in this Section, but not
otherwise.
3.2 Redemption Rights
(a) Subject to Section 6, the Corporation may at its option redeem
at any time all or from time to time any number of the
outstanding Preferred Stock, Series B on payment of the
Redemption Price as provided in Section 3.3.
(b) If less than all of the outstanding Preferred Stock, Series B
are to be redeemed, the shares to be redeemed shall be
selected by lot, in single shares or in units of 10 shares or
less, or pro rata (disregarding fractions) as the board of
directors or a committee thereof in its sole discretion shall
by resolution determine.
3.3 Redemption Price
The price at which any Preferred Stock, Series B is redeemable
(the "Redemption Price") shall be the aggregate of all accrued and unpaid
dividends up to and including the date fixed for redemption, the amount paid-up
thereon, any Interest Amount applicable thereto and a redemption premium of 10%
of the amount paid-up thereon.
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3.4 Redemption Procedure
(a) Notice of redemption (the "Redemption Notice") of the
Preferred Stock, Series B shall be given by the Corporation
not less than 30 days prior to the date fixed for redemption
to each holder of any Preferred Stock, Series B to be
redeemed. Accidental failure or omission to give the
Redemption Notice to one or more of such holders shall not
affect the validity of such redemption. The Redemption Notice
shall set out the Redemption Price, the date fixed for
redemption, the place of redemption and, in the case of
partial redemption, the number of the holder's shares to be
redeemed.
(b) On and after the date fixed for redemption, the Corporation
shall pay or cause to be paid the Redemption Price to or to
the order of the holders of the Preferred Stock, Series B
redeemed on presentation and surrender, at the place of
redemption, of the respective certificates representing such
shares, and the holders of the Preferred Stock, Series B
called for redemption shall cease to be entitled to dividends
or to exercise any of the rights of holders in respect
thereof, unless payment of the Redemption Price shall not be
made in accordance with the foregoing provisions, in which
case the rights and privileges of the holders shall remain
unimpaired.
(c) The Corporation shall have the right at any time after mailing
the Redemption Notice to deposit the Redemption Price of the
shares thereby called for redemption, or such part thereof as
at the time of deposit has not been claimed by the
shareholders entitled thereto, in a special account with a
chartered bank or trust company for the holders of such
shares, and upon the deposit being made or upon the date fixed
for redemption, whichever is the earlier, the Preferred Stock,
Series B in respect of which the deposit shall have been made
shall be deemed to be redeemed and the rights of each holder
thereof shall be limited to receiving, without interest, his
proportionate part of the Redemption Price so deposited upon
presentation and surrender of the certificates representing
his shares so redeemed.
(d) If less than all the Preferred Stock, Series B represented by
any certificate are redeemed, a new certificate for the
balance shall be issued without cost to the holder.
3.5 Purchase
Subject to Section 6, the Corporation may purchase at any time
all or from time to time any number of the outstanding Preferred Stock, Series
B in the open market (including purchases through or from an investment dealer
or firm holding membership on a stock exchange) or pursuant to tenders received
by the Corporation upon an invitation for tenders addressed to all holders of
the Preferred Stock, Series B, at a price per share not exceeding the
Redemption Price plus costs of purchase. If, upon any invitation for tenders,
the Corporation receives tenders for
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Preferred Stock, Series B at the same price in an aggregate number greater than
the number for which the Corporation is prepared to accept tenders, the shares
to be purchased shall be selected from the shares offered at prices as nearly
as may be pro rata (to the nearest 10 shares) according to the number of
Preferred Stock, Series B offered in each tender, in the manner as the board of
directors or a committee thereof in its sole discretion shall by resolution
determine.
3.6 Redeemed or Purchased Preferred Stock, Series B
Preferred Stock, Series B redeemed or purchased by the
Corporation shall remain as authorized but unissued Preferred Stock, Series B
and shall be available for issuance as such, unless payment for same is not
made by the Corporation in the ordinary course.
SECTION 4
VOTING RIGHTS
4.1 General
The holders of the Preferred Stock, Series B shall be entitled
to receive notice of and to attend at all meetings of shareholders of the
Corporation, other than separate meetings of the holders of another class or
series of shares. A holder of any Preferred Stock, Series B shall be entitled
to vote at such meetings on the basis of one vote per share.
SECTION 5
LIQUIDATION, DISSOLUTION OR WIND-UP
5.1 Priority of Distributions
In the event of the liquidation, dissolution or winding-up of
the Corporation or other distribution of the assets of the Corporation among
its shareholders for the purpose of winding up its affairs, whether voluntary
or involuntary, the holders of the Preferred Stock, Series B shall be entitled,
before any amounts shall be paid to or any property or assets of the
Corporation are distributed among the holders of the Common Stock, or any other
share of the Corporation ranking junior to the Preferred Stock, Series B, to
receive an amount equal to the amount paid-up thereon, together with all
accrued and unpaid dividends thereon, any Interest Amount applicable thereto
and a premium of 10% of the amount paid-up thereon. After payment to the
holders of the Preferred Stock, Series B of the amounts so payable to them,
they shall not be entitled to share in any further distribution of the assets
of the Corporation.
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5.2 Ratable Distribution
If any accrued and unpaid dividends, amounts payable on the
return of capital, any Interest Amount or any premium in respect of the
Preferred Stock, Series B are not paid in full, all series of Preferred Stock
shall participate ratably in respect of accrued and unpaid dividends, the
return of capital, any Interest Amount and the premium.
SECTION 6
RESTRICTIONS ON DIVIDENDS AND
ISSUE OR RETIREMENT OF SHARES
6.1 The Corporation shall not at any time without, but may at any
time with, the approval of the holders of the Preferred Stock, Series B given
in accordance with Section 9, authorize or issue any shares, other than
additional series of Preferred Stock, ranking prior to or on a parity with the
Preferred Stock, Series B as to the payment of dividends or the distribution of
the property or assets of the Corporation. Furthermore, so long as any of the
Preferred Stock, Series B are outstanding, the Corporation shall not:
(a) declare, pay or set apart for payment any dividends (other
than stock dividends in shares of the Corporation ranking
junior to the Preferred Stock, Series B) on any shares of the
Corporation ranking junior to the Preferred Stock, Series B;
(b) call for redemption, redeem, purchase or otherwise retire for
value any shares ranking junior to the Preferred Stock, Series
B (except out of the net cash proceeds of a substantially
concurrent issue of shares of the Corporation ranking junior
to the Preferred Stock, Series B);
(c) call for redemption, redeem, purchase or otherwise retire for
value less than all of the Preferred Stock, Series B;
(d) except out of the net cash proceeds of a substantially
concurrent issue of shares of the Corporation ranking junior
to the Preferred Stock, Series B, call for redemption, redeem,
purchase or otherwise retire for value (i) any Preferred
Stock, other than the Preferred Stock, Series B or (ii) any
shares of a class or series ranking on a parity with the
Preferred Stock, Series B in respect of the payment of
dividends and the distribution of assets in the event of a
liquidation, dissolution or winding-up of the Corporation,
whether voluntary or involuntary, or in the event of any other
distribution of assets of the Corporation among its
shareholders for the purpose of winding up its affairs; or
(e) create or issue any additional Preferred Stock,
unless, in each such case, any Interest Amount and all accrued and unpaid
dividends on the outstanding Preferred Stock, Series B and on all other shares
ranking prior to or on a parity with the Preferred Stock, Series B, up to and
including all dividends payable on the last preceding Dividend Payment Date,
have been declared and paid or set apart for payment.
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SECTION 7
NOTICES AND INTERPRETATION
7.1 Notices
(a) Any notice, cheque, invitation for tenders or other
communication from the Corporation provided for herein shall
be sufficiently given if delivered or if sent by ordinary
first class mail, postage prepaid, to the holders of the
Preferred Stock, Series B at their respective addresses
appearing on the books of the Corporation or, in the event of
the address of any of such holders not so appearing, then at
the last address of such holder known to the Corporation.
Accidental failure to give any notice, invitation for tenders
or other communication to one or more holders of the Preferred
Stock, Series B shall not affect the validity of the notices,
invitations for tenders or other communications properly given
or any action taken pursuant to such notice, invitation for
tender or other communication, but upon a failure being
discovered, the notice, invitation for tenders or other
communication, as the case may be, shall be sent forthwith to
the holder or holders.
(b) If any notice, cheque, invitation for tenders or other
communication from the Corporation given to a holder of
Preferred Stock, Series B pursuant to Section 7.1(a) is
returned on three consecutive occasions because he cannot be
found, the Corporation shall not be required to give or mail
any further notices, cheques, invitations for tenders or other
communications to such shareholder until he informs the
Corporation in writing of his new address.
7.2 Interpretation
(a) In the event that any day on which any dividend on
the Preferred Stock, Series B is payable or on or by
which any other action is required to be taken
hereunder is not a business day, then such dividend
shall be payable or such other action shall be
required to be taken on or before the next succeeding
day that is a business day. "Business day" means a
day other than a Saturday, a Sunday or any other day
that is a statutory or civic holiday in the place
where the Corporation has its head office.
(b) All references herein to a holder of Preferred Stock, Series B
shall be interpreted as referring to a registered holder of
the Preferred Stock, Series B.
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SECTION 8
MODIFICATION
8.1 The provisions set out herein attaching to the Preferred
Stock, Series B may be deleted, varied, modified, amended or amplified with the
prior approval of the holders of Preferred Stock, Series B given in accordance
with Section 9.
SECTION 9
APPROVAL OF PREFERRED STOCK, SERIES B
9.1 Any approval required or permitted to be given by the holders
of the Preferred Stock, Series B with respect to any and all matters referred
to herein shall be deemed to have been sufficiently given by the holders of the
Preferred Stock, Series B if given in accordance with the Corporation's
governing statute and constating documents.
3. The amendment was adopted by Board of Directors on June 26,
1996.
4. The amendment was duly adopted by the Board of Directors.
IN WITNESS WHEREOF, the corporation has caused these Articles of
Amendment to be executed by the undersigned duly authorized officer.
DATED: July 9, 1996 LOGAN INTERNATIONAL CORP.
By: /s/ Jimmy S. H. Lee
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JIMMY S.H. LEE, PRESIDENT