AMENDED AND RESTATED
ARTICLES OF INCORPORATION
OF
TOSCO CORPORATION
Pursuant to the provisions of Section 78.403 of the Nevada Revised
Statutes, the undersigned corporation adopts the following Amended and Restated
Articles of Incorporation as of this date:
FIRST: The name of the corporation is Tosco Corporation.
SECOND: The Articles of Incorporation of the corporation were filed by the
Secretary of State on the 16th day of September, 1955.
THIRD: The names and addresses of the original incorporators are as
follows:
D. C. Smith - Carson City, Nevada
E. A. Haglund - Carson City, Nevada
J. L. Foster - Carson City, Nevada
FOURTH: The Board of Directors of the corporation at a meeting duly
convened and held on the 19th day of November, 1996, adopted a resolution to
amend the original Articles as follows:
Article FOURTH is hereby amended to read as follows:
"FOURTH: The total authorized capital stock of this
corporation is One Hundred Ninety-Nine Million, Five Hundred Thousand
Dollars ($199,500,000) divided into 250,000,000 shares of Common Stock
of the par value of $.75 per share and 12,000,000 shares of Preferred
Stock of the par value of
$1.00 per share."
FIFTH: The number of shares of the corporation outstanding and entitled to
vote on an amendment to the Articles of Incorporation are 43,671,907; that the
above change and amendment has been consented to and approved by a majority vote
of the stockholders holding at least a majority of each class of stock
outstanding and entitled to vote thereon.
SIXTH: The Articles of Incorporation, as amended to the date of this
certificate, are hereby restated as follows:
KNOW ALL MEN BY THESE PRESENTS:
That we, the undersigned, have this day voluntarily associated ourselves
together for the purpose of forming a corporation under and by virtue of the
General Corporation Law of the State of Nevada, and all acts amendatory thereof
or additional thereto, and we hereby certify:
FIRST: That the name of this corporation shall be
TOSCO CORPORATION.
SECOND: That the place where its principal office is to be located is at
the Virginia & Truckee Building in the City of Carson City, County of Ormsby,
State of Nevada, but this corporation may maintain an office in such other place
or places as may be from time to time fixed by its Board of Directors or as may
be fixed by the By-Laws of said corporation.
THIRD: That the objects and purposes for which this corporation is formed
and the nature of the business to be transacted, promoted or carried on by said
corporation are:
(1) To buy, sell, manufacture, construct, fabricate, store, export
and import all kinds, forms and combinations of machinery
appliances and apparatus designed or intended for the extraction
of petroleum, oil and other hydro-carbon substances and the
by-products thereof from rock, shale or other material, and to
transact a general oil refining and oil extraction business;
(2) To carry on the business of licensing others to use apparatus
designed or intended for the extraction of petroleum, oil and
other hydro-carbon substances and the by-products thereof from
rock, shale or other material, upon such terms and conditions as
this corporation may deem advisable;
(3) To manufacture, buy, sell, deal in or in any lawful manner
acquire or dispose of and process machinery and equipment of all
kinds and description; to acquire, manage, control and dispose of
in any lawful manner, all parts, machinery, materials, supplies
and any other article or thing necessary, useful or convenient in
connection with the manufacture, sale and/or disposition of any
of the products of this corporation; to sell, distribute and/or
dispose of said products either directly, on commission through
agents or in any other manner and also to act as agent,
consignment broker or otherwise for any and all products similar
to, convenient or useful in connection with the products of this
corporation;
(4) To manufacture, process, finish, store, sell, install,
distribute, display and acquire, use, hold or dispose of
equipment, tools, machinery, parts, articles or objects of all
kinds, character and/or description as may from time to time be
deemed needful, necessary, useful or incidental to the business
or any part thereof of this corporation;
(5) To do and perform engineering and architectural works of all
kinds, character and description, including preparations of plans
and specifications and expert work; to prepare, manufacture,
develop and generally deal in and with models, dies, castings,
moulds and all other forms and kinds of parts or materials used
in connection therewith and to do every and all things that may
be found from time to time necessary, useful or advisable in the
furtherance of any or all of the business or purposes in which
this corporation will engage;
(6) To become a member of any partnership or a party to any lawful
agreement for sharing profits or to any union of interests,
agreement for reciprocal concessions, joint adventure, or
cooperation or mutual trade agreement with any person,
association, partnership, copartnership, firm or corporation that
is carrying on, or engaging in or that is about to engage in any
business which this corporation is authorized to carry on, or
that is conducting or transacting any business capable of being
conducted so as directly or indirectly to benefit this
corporation;
(7) To conduct and carry on the business of purchasing, designing,
manufacturing, producing, constructing, erecting, assembling,
selling and generally dealing in goods, wares, merchandise,
materials and supplies of any and every description;
(8) To purchase, lease or otherwise acquire lands and buildings
wherever situate for the erection and establishment of a
manufactory or manufactories, plants, buildings and/or workshops
for the manufacture, storage, distribution and sale directly or
indirectly of any of the products of this corporation;
(9) To create, establish, build up and maintain a selling or
purchasing organization for the promotion, sale, advertisement,
distribution or introduction of any and all manufactured
products, merchandise, personal property and subject of trade or
commerce of every kind and nature, and of any patents,
inventions, trademarks or any rights or interests therein and
thereto; to manufacture, handle, deal in, contract for, or
otherwise acquire, advertise, promote, introduce, distribute,
buy, sell, or otherwise dispose of any of the aforesaid, either
for itself and on its own account or for any other person, firm,
association or corporation as general brokers or otherwise;
(10) To conduct a general agency business, to employ, engage, hire,
and to appoint corporations, firms or individuals in any and all
parts of the world, to act as agents and/or brokers and/or
factors for this corporation in such capacity or any other
capacity whatsoever and on such conditions as may be determined
from time to time by the Board of Directors;
(11) To serve as consultants in an advisory, managerial or supervisory
capacity or to act as commercial, purchasing or general agent,
factor or representative of individuals, partnerships,
associations or corporations engaged in industrial, commercial,
mining or mercantile enterprises and as such, to promote, develop
and extend their business and aid in any of their enterprises;
(12) To finance the sales of its products, grant terms of credit in
respect thereof, underwrite or have underwritten, discount or in
any other manner deal with obligations due to it or to persons,
corporations or concerns in which it may be interested;
(13) To enter into, make, perform and carry out contracts of every
kind for any lawful purpose without limit as to amount with any
person, firm, association or corporation;
(14) To acquire by purchase, lease, license or otherwise, products,
processes and formulae, whether patented or unpatented, and to
manufacture, produce, sell, introduce, let or otherwise dispose
of such products, processes or formulae, or the products or
by-products thereof;
(15) To purchase, lease, exchange, hire or otherwise acquire any and
all rights, privileges, permits or franchises suitable or
convenient for any of the purposes of its business;
(16) To undertake and carry on any business, undertaking, enterprise,
venture, transaction or operation commonly undertaken or carried
on by financiers, promoters, contractors, merchants, or
commission agents, and in the course thereof to acquire and
dispose of or otherwise turn to account or realize upon all or
any negotiable or transferable instruments and securities,
including debentures, bonds, notes, certificates of indebtedness,
certificates of interest and all kinds of commercial paper;
(17) To purchase from time to time letters patent of the United States
of America and foreign countries, or the right and license to use
for certain purposes the inventions or processes embodied in
certain letters patent of the United States and foreign
countries, heretofore granted, allowed, granted or issued, or
which may be hereafter allowed, granted or issued, which may be
deemed useful and advantageous in carrying out the further
purposes of the corporation hereby created, as herein set forth,
and as incidental thereto. To manufacture, procure, cause or
license to be manufactured, such inventions or a part thereof, to
be used in such manner, and for such purposes as the corporation
hereby created and formed shall have the legal right and
authority to use or license the same to be used under the letters
patent of the United States and foreign countries, purchased or
licenses acquired by it as aforesaid;
(18) To the same extent as natural persons might or could do, as
principal or agent, to purchase, manufacture, condemn, or
otherwise dispose of and deal in and with lands, real estate and
its tenements and appurtenances, including, water, water rights,
water lands, water privileges, easements and rights of way of all
kinds, franchises, rights and governmental, state, territorial,
county and municipal grants and concessions of every kind and
character and all other kinds of property, real, personal or
mixed, to invest, trade, deal in and with goods, wares and
merchandise and real and personal property of every class and
description;
(19) To purchase, contract for, lease, take or otherwise acquire,
hold, own, build, construct, erect, rebuild, alter, use, manage,
operate, improve, develop, trade and deal in and with, mortgage,
hypothecate or otherwise encumber, sell, assign, grant, transfer,
convey, exchange, lease, sublease, license to others or otherwise
dispose of, real estate and leaseholds, improvements thereon, and
fixtures and personal property incidental thereto or connected
therewith, and personal property of every kind and description,
and any interest, estate or rights therein or thereto, at any and
all places in the United States or any other part of the world,
and to build, construct, erect, rebuild, alter, improve, operate
and maintain buildings and structures and improvements of every
kind, character and description thereon;
(20) To acquire and pay for in cash, stock or bonds of this
corporation or otherwise, the good will, business rights, assets
and property, and to guarantee, undertake, or assume the whole or
any part of the obligations or liabilities of any person, firm,
association or corporation; to hold, maintain and operate, or in
any manner dispose of, the whole or any part of the good will,
business, rights and property so acquired, and to conduct in any
lawful manner the whole or any part of any business so acquired;
and to exercise all the powers necessary or convenient in and
about the management of such business;
(21) To borrow and lend money, to issue bonds, debentures, notes or
obligations and other evidences of indebtedness, secured or
unsecured, of the corporation, from time to time, for moneys
borrowed or in payment for property purchased or otherwise in
connection with any operations of the corporation; to secure any
of the same by mortgage or mortgages upon, or by deed or deeds of
trust of, or by pledge of, any or all of the property, real or
personal, of the corporation wheresoever situated, acquired or to
be acquired; and to sell or otherwise dispose of any and all such
bonds, debentures or obligations in such manner and upon such
terms as may be deemed judicious by the Board of Directors;
(22) To issue, purchase or otherwise acquire, hold, sell, transfer,
reissue or cancel shares of its own capital stock or its own
securities or obligations in the manner and to the extent now or
hereafter authorized or permitted by the laws of the State of
Nevada;
(23) To carry on any other lawful business whatsoever which the
corporation may deem proper, or convenient or capable of being
carried on in connection with the foregoing or otherwise, or
which may be calculated directly or indirectly to promote the
interests of the corporation or to enhance the value of its
property; or which may be incidental or conducive to the
attainment of its objects and purposes; and to have, enjoy, and
exercise all the rights, powers and privileges which are now and
which may hereafter be conferred by the laws of Nevada upon
corporations; to do all and everything necessary, suitable or
proper for the accomplishment of any of the purposes or the
attainment of any of the objects or the furtherance of any of the
powers hereinabove set forth, either alone or in association with
other corporations, associations, firms or individuals, and
either as factor, principal or agent, and to do every other act
or acts, thing or things, incidental or appurtenant to or growing
out of or connected with, the aforesaid business or businesses or
powers or any part or parts thereof, provided the same is not
inconsistent with the laws under which this corporation is
organized, and to do any and all of the things hereinabove set
forth, to the same extent as natural persons might or could do in
any part of the world;
(24) To have one or more offices within or without the State of
Nevada; to carry on all or any of its operations and business and
without restriction or limit as to the amount, to purchase or
otherwise acquire, hold, own, mortgage, sell, convey or otherwise
dispose of real and personal property of every class and
description in any of the states, districts, territories or
colonies of the United States, and in any and all foreign
countries, subject to the laws of such state, district,
territory, colony or country;
(25) The several clauses contained in this statement of purposes shall
be construed both as purposes and powers and the statements
contained in each clause shall, except where otherwise expressed,
be in no wise limited or restricted by reference to or inference
from the terms of any other clause, but shall be regarded as
independent purposes and powers. The business or purpose of this
corporation is, from time to time, to do any one or more of the
acts and things herein set forth, and it is hereby expressly
provided that the foregoing enumeration of purposes and powers
shall not be held to limit or restrict in any manner the powers
of this corporation.
FOURTH: The total authorized capital stock of this corporation is One
Hundred Ninety-Nine Million, Five Hundred Thousand Dollars ($199,500,000)
divided into 250,000,000 shares of Common Stock of the par value of $.75 per
share and 12,000,000 shares of Preferred Stock of the par value of $1.00 per
share.
The designations, preferences and relative, participating, optional or
other special rights of the shares of each class and the qualifications,
limitations or restrictions thereof are as follows:
The 12,000,000 shares of Preferred Stock may be issued in Series, from time
to time, each such Series to have a distinctive designation as shall be stated
and expressed in the resolutions adopted by the Board of Directors of the
Corporation providing for the issuance of shares of such Series. The following
shall also apply to the Preferred Stock:
1. The Preferred Stock may be made subject to redemption at
such time or times and at such price or prices and may be issued
in such Series, with such designations, preferences and relative,
participating, optional or other special rights, or
qualifications, limitations or restrictions thereof as shall be
stated and expressed in the resolutions providing for the issue
of such stock adopted by the Board of Directors of the
Corporation.
2. The holders of Preferred Stock of any class or Series
shall be entitled to dividends at such rates, on such conditions
and at such times as shall be stated and expressed in the
resolutions providing for the issue of such stock adopted by the
Board of Directors of the Corporation, payable in preference to,
or in such relation to, the dividends payable on any other class
or classes of stock, and cumulative or non-cumulative as shall be
so expressed in such resolutions adopted by the Board of
Directors.
3. The holders of Preferred Stock of any class or Series
shall be entitled to such rights upon the dissolution of, or upon
any distribution of the assets of, the Corporation as shall be
stated and expressed in the resolutions providing for the issue
of such stock adopted by the Board of Directors of the
Corporation.
4. Any Preferred Stock of any class or Series may be made
convertible into, or exchangeable for, shares of any other class
or classes or of any other Series of the same or any other class
or classes of stock of the Corporation, at such price or prices
or at such rates of exchange and with such adjustments as shall
be stated and expressed in the resolutions providing for the
issue of such stock adopted by the Board of Directors of the
Corporation.
Except as otherwise by statute or by the resolutions providing for the
issue of the Preferred Stock specifically provided, the Preferred Stock shall
have no voting power, and the Common Stock shall have the sole right and power
to vote on all matters on which a vote of Stockholders is to be taken. Each
holder of Common Stock shall be entitled to vote and shall have one vote for
each share thereof held.
FIFTH: That the names and addresses of the original incorporators are as
follows:
NAMES ADDRESSES
D. C. Smith Carson City, Nevada
E. A. Haglund Carson City, Nevada
J. L. Foster Carson City, Nevada
SIXTH: That the period of the existence of said corporation shall be
unlimited.
SEVENTH: That the members of the governing board of the corporation shall
be styled directors and that the number of directors of the corporation shall be
fixed by the By-Laws of the corporation and may be altered from time to time as
provided therein, but in no event shall the number of directors of the
corporation be less than three nor more than sixteen. At each annual meeting of
stockholders commencing with the year 1986, a director shall be elected to hold
office for a term of one year and until such person's successor shall be duly
elected and qualify, provided that any director whose current term of office
extends beyond the annual meeting of stockholders in the year 1986 shall
continue in office until the end of the term for which he was elected or his
earlier resignation, removal or death. Any vacancies created in the Board of
Directors, through increase in the number of directors or otherwise, may be
filled in accordance with the By-Laws of the corporation and the applicable laws
of the State of Nevada. Any director elected solely by the holders of any class
or series of Preferred Stock of the corporation pursuant to the designations,
preferences and relative, participating, optional or other special rights and
the qualifications, limitations or restrictions of such class or series of
Preferred Stock shall serve for such period and have such voting powers as shall
be stated and expressed in the resolutions adopted by the stockholders or the
Board of Directors of the corporation providing for the issuance of shares of
such class or series. The term of office of any director elected as provided in
the preceding sentence may be greater or less than that of any other director.
That the names and post office addresses of the first Board of Directors
are as follows:
NAMES ADDRESSES
D. C. Smith Carson City, Nevada
E. A. Haglund Carson City, Nevada
J. L. Foster Carson City, Nevada
EIGHTH: That the capital stock of the corporation shall not be subject to
assessment;
That the private property of the stockholders, directors and officers shall
not be subject to the payment of corporate debts to any extent whatever.
NINTH: In furtherance and not in limitation of the powers conferred by
statute, the Board of Directors are expressly authorized:
To hold their meetings, to have one or more offices, and to keep
the books of the corporation, except as may be otherwise specifically
provided by the laws of the State of Nevada, within or without the
State of Nevada, at such places as may be from time to time designated
by them.
To determine from time to time whether and if allowed, under what
conditions and regulations the accounts and books of the corporation
(other than the books required by law to be kept at the principal
office of the corporation in Nevada) or any of them, shall be open to
the inspection of the stockholders and the stockholders' rights in
this respect are and shall be restricted or limited accordingly;
To make, alter, amend and rescind the ByLaws of the corporation,
to fix the amount to be reserved as working capital; and to fix the
times for the declaration and payment of dividends; to authorize and
cause to be executed mortgages and liens upon the real and personal
property of the corporation;
With the consent in writing or pursuant to the affirmative vote
of the holders of at least a majority of the stock issued and
outstanding, at a stockholders' meeting duly called for that purpose,
to sell, assign, transfer, or otherwise dispose of the property of the
corporation as an entirety;
In order to promote the interests of the corporation and to
encourage the utilization of the corporation's lands and other
property, to sell, assign, transfer, lease and in any lawful manner
dispose of such portions of said property as the Board of Directors
shall deem advisable, and to use and apply the funds received in
payment therefor to the surplus account for the benefit of the
corporation, or the payment of dividends, or otherwise; provided that
a majority of the whole board concur therein, and further provided
that the capital stock shall not be decreased except in accordance
with the laws of Nevada;
By a resolution passed by a majority of the whole Board, under
suitable provision of the By-laws, to designate three or more of their
number to constitute an executive committee, which committee shall,
for the time being, as provided in said resolution or in the By-Laws,
have and exercise any or all the powers of the Board of Directors
which may be lawfully delegated in the management of the business and
affairs of the corporation, and shall have power to authorize the seal
of the corporation to be affixed to all papers which may require it.
TENTH: No Stockholder of this Corporation shall have any preemptive or
preferential right of subscription to any shares of stock of this Corporation,
or to Options, Warrants or other interests therein or therefor, or to any
obligations convertible into stock of this Corporation, issued or sold, nor any
other right of subscription to any thereof other than such, if any, as the Board
of Directors of this Corporation in its discretion, from time to time, may
determine, and at such price or prices as the Board of Directors from time to
time may fix pursuant to the authority hereby conferred by the Articles of
Incorporation of this Corporation, and the Board of Directors may issue stock of
this Corporation, or Options, Warrants or interests therein or therefor, or
obligations convertible into stock, without offering such issue of stock,
Options, Warrants or other interests therein or therefor, or obligations
convertible into stock of this Corporation, either in whole or in part, to the
Stockholders of this Corporation. The acceptance of stock in this Corporation
shall be a waiver of any such preemptive or preferential rights which, in the
absence of this provision, otherwise might be asserted by Stockholders of this
Corporation, or any of them.
ELEVENTH: The following provisions are inserted for the management of the
business and for the conduct of the affairs of the Corporation:
(1) In the absence of fraud, no contract, transaction or other
act of the Corporation shall be affected or invalidated in any way by
the fact that any director of the Corporation, any other person, firm
or corporation which owns capital stock of the Corporation (whether or
not a majority of such capital stock), or any affiliate or subsidiary
of such other person, firm or corporation, is in any way interested in
or connected with any other party to such contract, transaction or act
or is himself or itself a party to such contract, transaction or act,
provided that such interest shall be fully disclosed or otherwise
known to the Board of Directors at the meeting of said Board at which
such contract, transaction or act is authorized, ratified or
confirmed; and any director may be counted in determining the
existence of a quorum at any meeting at which such contract,
transaction or act is authorized, ratified or confirmed, and may vote
thereat in connection with such authorization, ratification or
confirmation with like force and effect as if he were not interested
in or connected with any other party, or was not himself a party to
such contract, transaction or act.
(2) The Board of Directors in its discretion may submit for
approval, ratification or confirmation by the stockholders at any
meeting thereof any contract, transaction or act of the Board of
Directors or of any officer, agent or employee of the corporation, and
any such contract, transaction or act which shall have been so
approved, ratified or confirmed by the holders of a majority of the
issued and outstanding stock entitled to vote shall be as valid and
binding upon the corporation and upon the stockholders thereof as
though it had been approved, ratified and confirmed by each and every
stockholder of the corporation.
(3) The corporation shall, to the fullest extent provided by the
Nevada General Corporation Law, indemnify any and all persons whom it
shall have power to indemnify under said Law from and against any and
all of the expenses, liabilities or other matters referred to in or
covered by said Law.
The indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be
entitled under any By-Law, agreement, vote of stockholders or
disinterested directors, statute, rule or by common law or otherwise.
(4) The corporation reserves the right to amend, alter or repeal
any provisions contained in these articles of incorporation in the
manner now or hereafter prescribed by statute, and all rights
conferred on stockholders herein are granted subject to this
reservation.
TWELFTH: 1. The affirmative vote of the holders of not less than a majority
of the Voting Stock (as hereinafter defined) of the corporation shall be
required before the corporation may purchase any outstanding shares of Common
Stock of the corporation at a price known by the corporation to be above Market
Price (as hereinafter defined) from a person known by the corporation to be a
Selling Stockholder (as hereinafter defined), unless (a) the purchase is made as
part of an offer by the corporation to all holders of Common Stock to purchase
shares of Common Stock on the same terms or (b) the purchase is made by the
corporation from any employee benefit plan now or hereafter maintained by the
corporation.
2. For purposes of Article TWELFTH:
(a) The term "Voting Stock" shall mean the outstanding shares of
stock of the corporation entitled to vote in elections of Directors of
the corporation considered as one class.
(b) The majority vote required by Section 1, when applicable,
shall be in addition to any lesser vote or no vote required or
permitted by law or these Articles of Incorporation exclusive of this
Article TWELFTH and the shares of the Selling Stockholder shall, for
this purpose, be counted as having abstained regardless of how they
have been voted.
(c) The term "Market Price" shall mean the highest closing sale
price, during the 30-day period immediately preceding the date of the
making of such purchase agreement, of a share of the Common Stock of
the corporation on the Composite Tape for New York Stock Exchange
Issues, or, if such stock is not quoted on the Composite Tape or is
not listed on such Exchange, on the principal United States securities
exchange registered under the Securities Exchange Act of 1934 on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing bid quotation with respect to a share of
such stock during the 30-day period preceding the date in question on
the National Association of Securities Dealers, Inc. Automated
Quotations System or any system then in use, or if no such quotations
are available, the fair market value on the date in question of a
share of such stock.
(d) The term "Selling Stockholder" shall mean and include any
person who or which is the beneficial owner of in the aggregate five
percent or more of the outstanding shares of Common Stock of the
corporation and who or which has purchased or agreed to purchase any
of such shares within the most recent two-year period.
(e) A "person" shall mean any individual, firm, partnership,
corporation or other entity.
(f) A person shall be the "beneficial owner" of any shares of
Common Stock of the corporation:
(i) which such person or any of its Affiliates or Associates
(as hereinafter defined) beneficially owns, directly or
indirectly; or
(ii) which such person or any of its Affiliates or
Associates has (a) the right to acquire (whether such right is
conditional or exercisable immediately or only after the passage
of time), pursuant to any agreement, arrangement or understanding
or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (b) the right to vote
pursuant to any agreement, arrangement or understanding; or
(iii) which are beneficially owned, directly or indirectly,
by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or
understanding for the purpose of acquiring, holding, voting or
disposing thereof.
(g) The terms "Affiliate" and "Associate" shall have the
respective meanings ascribed to such terms in Rule 12b-2 of the
General Rules and Regulations under the Securities Exchange Act of
1934, as in effect on January 1, 1985.
(h) For the purposes of determining whether a person is a Selling
Stockholder, the number of shares of Common Stock deemed to be
outstanding and the number of shares beneficially owned by the person
shall include shares respectively deemed owned through application of
paragraph (f) of this Section 2 but shall not include any other shares
of Common Stock which may be issuable pursuant to any agreement,
arrangement or understanding, or upon exercise of conversion rights,
warrants or options, or otherwise.
(i) Nothing contained in this Article TWELFTH shall be construed
to relieve any Selling Stockholder or any other person from any
fiduciary obligation imposed by law.
(j) The Board of Directors of the corporation shall have the
power to construe and interpret this Article TWELFTH, including,
without limitation, (i) whether a person is a Selling Stockholder,
(ii) whether a person is an Affiliate or Associate of another, (iii)
whether Section 1 is or has become applicable in respect of a proposed
transaction, (iv) what is the Market Price and whether a price is
above Market Price, and (v) when or whether a purchase or agreement to
purchase any share or shares of Common Stock of the corporation has
occurred and when or whether a person has become a beneficial owner of
any share or shares of Common Stock of the corporation. Any decision
or action reasonably taken by the Board of Directors in good faith
arising out of or in connection with the construction or
interpretation of this Article TWELFTH shall not constitute a
violation of and shall be deemed to be in accordance with the terms of
this Article TWELFTH.
THIRTEENTH: No director or officer shall have any personal liability to the
Corporation or its stockholders for damages for breach of fiduciary duty as a
director or officer, except that this Article THIRTEENTH shall not eliminate or
limit the liability of a director or officer for (i) acts or omissions which
involve intentional misconduct, fraud or a knowing violation of law; or (ii) the
payment of dividends in violation of Section 78.300 of the Nevada Revised
Statutes.
Jefferson F. Allen is the executive vice president of Tosco Corporation and
that Wilkes McClave is the secretary of the corporation; that they have been
authorized to execute the foregoing certificate by resolution of the board of
directors, adopted at a meeting of the directors duly called and that such
meeting was held on the 19th day of November 1996 and that the foregoing
certificate sets forth the text of the Articles of Incorporation as amended to
the date of the certificate.
Dated: February 12, 1997
TOSCO CORPORATION
By:/s/____________________________
Jefferson F. Allen
Its Executive Vice President
and /s/___________________________
Wilkes McClave
Its Secretary
STATE OF CONNECTICUT )
)ss.
COUNTY OF FAIRFIELD )
I, Jane A. Giles, a notary public, do hereby certify that
on this 12th day of February, 1997, personally appeared before me Jefferson F.
Allen and Wilkes McClave, who being by me first duly sworn, declared that they
are the Executive Vice President and Secretary of Tosco Corporation, that they
signed the foregoing documents as Executive Vice President and Secretary of the
corporation, and that the statements therein contained are true.
/s/-----------------------
Notary Public
(Notarial Seal)
My commission expires 10/31/2000