SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DIAMOND SHAMROCK, INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2456753
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
9830 Colonnade Boulevard
San Antonio, Texas 78230
(Address of Principal Executive (Zip Code)
Offices)
DIAMOND SHAMROCK, INC.
LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Timothy J. Fretthold
Senior Vice President/Group Executive
and General Counsel
9830 Colonnade Boulevard
San Antonio, Texas 78230
(Name and address of agent for service)
(210) 641-6800
(Telephone number, including area code, of agent for service)
________________________________________________________________________
Approximate date of proposed commencement of sales pursuant to the Plan: From
time to time after the effective date of this Registration Statement.
______________________________________________________________________
<PAGE>
Calculation of Registration Fee
______________________________________________________________________
Title of Amount Proposed Proposed Amount of
securities to be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share price
_______________________________________________________________________
Common 1,000,000 $27.188 $27,188,000.00 $9,374.42
Stock,
$.01 par
value
_______________________________________________________________________
* Estimated solely for the purpose of computing the registration fee
in accordance with Rule 457(h)(1) based on the market value of
shares of Common Stock of Diamond Shamrock, Inc. (the "Company")
($27.188 per share, which is the average of the high and low sale
prices thereof on the Composite Tape of the New York Stock Exchange
on April 27, 1995.)
** Includes associated preferred share purchase rights issuable
pursuant to the Rights Agreement filed as Exhibit 4.2 hereto.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange Commission
(the "Commission") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "1934 Act").
(b) The Company's Current Reports on Form 8-K, dated January 25, 1995 and
February 6, 1995, and all other reports, if any, filed by the Company pursuant
to Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal year ended
December 31, 1994.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 10 (File No. 1-9409), filed pursuant to Section
12(b) of the 1934 Act, and any amendment or report filed for the purpose of
updating such information.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the 1934 Act subsequent to the filing of this Form S-8 Registration
Statement (the "Registration Statement") and prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed
to be incorporated by reference herein and to be a part hereof from the
respective dates of the filing of such documents.
Item 6. Indemnification of Directors and Officers
Under Delaware law, directors, officers, employees and other individuals
may be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with specified actions, suits
or proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action")) if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of a
derivative action, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the Company.
Article Tenth, Section 2 of the Certificate of Incorporation of the Company
(the "Certificate") provides generally for the Company to indemnify any person
who was or is made a party or is threatened to be made a party to or is involved
in any action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), by reason of the fact that he or
she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Company or a subsidiary thereof or is or was serving
at the request of the Company, joint venture, trust or other enterprise
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, partner, member or trustee or in any other capacity while so serving,
to the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Company to provide broader
indemnification rights than such law prior to such amendment permitted the
Company to provide), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith.
Article Tenth, Section 2(d) of the Certificate provides that the Company
may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Company or another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
The Company and each of its directors have entered into indemnification
agreements. Pursuant to such agreements, each of the directors is entitled to
indemnification whether the director's acts, failures to act, neglect or breach
of duty giving rise to the right to indemnity thereunder occurred prior to or
subsequent to the date of such agreement. Such right, however, is not available
with respect to acts, failures to act, neglect or breaches of duty of a director
occurring prior to the date such person was elected as a director of the
Company.
Such indemnification agreements attempt to specify the extent to which the
directors may receive indemnification under circumstances in which indemnity
would not otherwise be provided by Article Tenth. Such agreements entitle the
directors to indemnification as expressly provided by Article Tenth and to
indemnification for any amount which a director is or becomes legally obligated
to pay relating to or arising out of any claim made against such director
because of any act, failure to act or neglect or breach of duty, including any
actual or alleged error, misstatement or misleading statement, which such
director commits, suffers, permits or acquiesces in while acting in the
director's position with the Company. The right to receive payments under such
agreements in excess of those expressly provided for in Article Tenth would not
be permitted, however, in connection with any claim against a director:
(i) which results in a final, nonappealable order for the director
to pay a fine or similar governmental imposition which the Company is prohibited
by applicable law from paying; or
(ii) to the extent based upon or attributable to the director gaining in
fact a personal profit to which he or she was not legally entitled, including
without limitation profits made from the purchase and sale by the director of
equity securities of the Company which are recoverable by the Company pursuant
to Section 16(b) of the 1934 Act and profits arising from transactions in
publicly traded securities of the Company which were effected by the director in
violation of Section 10(b) of the 1934 Act, including Rule 10b-5 promulgated
thereunder.
Another purpose of the indemnification agreements is to provide the
directors with increased assurance of indemnification by prohibiting the Company
from adopting any amendment to the Company's Certificate or By-Laws which would
have the effect of denying, diminishing or encumbering a director's
indemnification rights pursuant thereto or to the Delaware Law or any other law
as applied to any act or failure to act occurring in whole or in part prior to
the effective date of such amendment.
The Company and certain of its officers have entered into indemnification
agreements similar to those described above with directors.
The Company has purchased and maintains insurance on behalf of any person
who is or was a director or officer against any loss arising from any claim
asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
Item 8. Exhibits
4.1 Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended.
4.2 Rights Agreement between the Company and Ameritrust Company,
National Association, as Rights Agent, dated March 6, 1990
(Exhibit 2 to the Company's Form 8-A Registration Statement
dated March 6, 1990 (the "Form 8-A"))*.
4.3 Certificate of Incorporation of the Company (Exhibit 3.1 to the
Company's Form 10 Registration Statement No. 1-9409 (the "Form 10")),
as amended by a Certificate of Designations Establishing $2.00
Convertible Exchangeable Preferred Stock (an amended form of which is
Exhibit 4.3 to the Company's Form S-1 Registration Statement No.
33-21991) and by a Certificate of Designations Establishing Series A
Junior Participating Preferred Stock (a form of which is Exhibit 3 to
the Company's Form 8-A).*
4.4 By-laws of the Company (Exhibit 3.2 to the Form 10).*
5.1 Opinion of Timothy J. Fretthold, Esq. with respect to the
legality of the Company's securities being registered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit
5.1).
24.1 Powers of Attorney of directors and officers of the Company.
24.2 Certificate regarding resolutions of the Board of Directors of
the Company.
* Each document marked by an asterisk is incorporated herein by reference
to the designated document previously filed with the Commission.
Item 9. Undertakings
A. The Company hereby undertakes
(1) to file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement (a) to include any
prospectus required by Section 10(a) (3) of the Securities and Exchange Act of
1933, as amended (the "1933 Act"), (b) to reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or the
most recent post-effective amendment hereof) which, individually or in the
aggregate, represents a fundamental change in the information set forth in this
Registration Statement, and (c) to include any material information with respect
to the plan of distribution not previously disclosed in this Registration
Statement or any material change to such information in this Registration
Statement;
(2) that, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of the
offering.
B. The Company hereby undertakes that, for purposes of determining any
liability under the 1933 Act, each filing of the Company's annual report
pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the 1933 Act may
be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions or otherwise, the Company is advised that,
in the opinion of the Commission, such indemnification is against public policy
as expressed in the 1933 Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit
or proceeding) is asserted by a director, officer or controlling person in
connection with the securities being registered, the Company will, unless in the
opinion of counsel for the Company the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final adjudication of such
issue.
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing
on Form S-8 and has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of San
Antonio, Texas, on the 2nd day of May, 1995.
DIAMOND SHAMROCK, INC.
By: * R.R. Hemminghaus
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the 1933 Act, this Registration Statement has
been signed by the following persons in the capacities and on the date
indicated:
Signature Title Date
*R.R. HEMMINGHAUS Chairman of the Board May 2, 1995
and Chief Executive
Officer
*R.C. BECKER Vice President and May 2, 1995
Treasurer (Principal
Financial Officer)
*GARY E. JOHNSON Vice President and May 2, 1995
Controller(Principal
Accounting Officer)
*B. CHARLES AMES Director May 2, 1995
*E. GLENN BIGGS Director May 2, 1995
*W.E. BRADFORD Director May 2, 1995
*LAURO F. CAVAZOS Director May 2, 1995
*W.H. CLARK Director May 2, 1995
*WILLIAM L. FISHER Director May 2, 1995
*BOB MARBUT Director May 2, 1995
*KATHERINE D. ORTEGA Director May 2, 1995
Timothy J. Fretthold, by signing his name hereto, does hereby sign this
Registration Statement on Form S-8 on behalf of Diamond Shamrock, Inc. and
each of the above-named officers and directors of Diamond Shamrock, Inc.
pursuant to powers of attorney executed on behalf of the Company and each of
such officers and directors.
*By: /s/ Timothy J. Fretthold
Attorney-in-fact
May 2, 1995
W2165a.LW
<PAGE>
INDEX TO EXHIBITS
Exhibit
No.
Exhibit
4.1 Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended
4.2 Rights Agreement between the Company and Ameritrust Company,
National Association, as Rights Agent, dated March 6, 1990
(Exhibit 2 to the Company's Form 8-A Registration Statement
dated March 6, 1990 (the "Form 8-A"))*
4.3 Certificate of Incorporation of the Company (Exhibit 3.1 to the
Company's Form 10 Registration Statement No. 1-9409 (the "Form 10")),
as amended by a Certificate of Designations Establishing $2.00
Convertible Exchangeable Preferred Stock (an amended form of which is
Exhibit 4.3 to the Company's Form S-1 Registration Statement No.
33-21991) and by a Certificate of Designations of Series A Junior
Participating Preferred Stock (a form of which is Exhibit 3 to the
Company's Form 8-A)*
4.4 By-laws of the Company (Exhibit 3.2 to the Form 10)*
5.1 Opinion of Timothy J. Fretthold, Esq. with respect to the legality of
the Company's securities being registered
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5.1)
24.1 Powers of Attorney of directors and officers of the Company
24.2 Certificate regarding resolutions of the Board of Directors of the
Company
* Each document marked by an asterisk is incorporated herein by reference to
the designated document previously filed with the Commission.
DIAMOND SHAMROCK, INC.
LONG-TERM INCENTIVE PLAN
As Amended and Restated as of May 2, 1995
The purpose of this Diamond Shamrock, Inc. Long-Term Incentive Plan (the "Plan")
is to promote the long-term success of Diamond Shamrock, Inc. (the "Company")
by providing the directors, officers, and other salaried employees of the
Company, its subsidiaries, and its affiliates (the "Participants") with
incentives to create excellent performance and to continue their association
with the Company, its subsidiaries, and its affiliates. In addition, the Plan
operates to encourage Participants to become stockholders of the Company and by
providing actual share ownership through Plan awards, it is also intended that
Participants will view the Company from a stockholder's perspective.
1. Aggregate Limitations on Shares Available Under the Plan. The total number
of shares of common stock, $.01 par value ("Common Shares") , of the
Company which are issued or transferred under the Plan shall not in the
aggregate exceed 3,500,000 Common Shares, subject to the adjustments
authorized by Section 5; provided, however, that the number of Common
Shares issued or transferred as restricted shares that become
nonforfeitable solely contingent upon the participant attaining a certain
length of service with the Company shall not in the aggregate exceed
314,000 Common Shares, subject to adjustment as provided in Section 5 of
this Plan. For the purposes of this Section 1:
(a) Upon payment in cash of the award provided by any SAR, Performance
Award, or Securities Award (as hereinafter defined) (together with an
Option, a "Right") granted under this Plan, any Common Shares that
were covered by that Right, shall again be available for issuance or
transfer hereunder.
(b) Upon the full or partial payment of the price of any Right by the
transfer to the Company of Common Shares or upon satisfaction of tax
withholding obligations in connection with any such exercise or any
other payment made or benefit realized under this Plan by the transfer
or relinquishment of Common Shares, there shall be deemed to have been
issued or transferred under this Plan only the net number of Common
Shares actually issued or transferred by the Company determined by
subtracting the number of Common Shares so transferred or
relinquished.
If any Securities Awards (as hereinafter defined) are issued or transferred
that pertain to Company stock other than Common Shares, there will be
deemed to have been issued a number of Common Shares equal to the number of
shares of such other stock so issued or transferred. In the event that such
other stock is convertible into Common Shares, there will be deemed to have
been issued a number of Common Shares equal to the number of Common Shares
into which such other stock is convertible.
2. Administration. The Plan will be administered by the Compensation
Committee (or any successor committee) of the Company's Board of Directors
(the "Committee") consisting of not fewer than two directors each of whom
shall be a "disinterested person" within the meaning of Rule 16b-3 or any
successor rule promulgated pursuant to the Securities Exchange Act of 1934
(the "Exchange Act").
The Committee, subject to the Company's By-Laws, will from time to time
establish rules for the calling and conduct of its meetings and the taking
of action thereat or otherwise. In addition to the authority prescribed
elsewhere herein, the Committee will have the authority in its sole
discretion from time to time (i) subject to Section 3, to prescribe such
limitations, restrictions, conditions upon, provisions for vesting and
acceleration of, provisions prescribing the nature and amount of legal
consideration to be received upon the award or exercise of any Right and
all other terms and conditions of any award of any Right as the Committee
deems appropriate, provided that none of the foregoing conflicts with any
of the express terms of the Plan and that the foregoing are set forth in
the instrument granting any Right or in the regulations referred to
elsewhere in this Section 2, (ii) to interpret the Plan and to adopt, amend
and rescind rules and regulations for implementing and administering the
Plan, and (iii) to make all other determinations and take all other actions
that the Committee deems necessary or advisable for the implementation and
administration of the Plan. All such actions will be final, conclusive, and
binding. No member of the Committee will be liable for any grant or award
or action taken or decision made in good faith relating to the Plan or any
grant or award thereunder.
3. Rights. The Committee may from time to time, and upon such terms and
conditions as it determines in its discretion, authorize the granting of
Rights to officers (including officers who are directors) and other
salaried employees of the Company or any of its majority-owned subsidiaries
who, in the judgment of the Committee based upon information furnished to
it, individually or by classification are expected to contribute to the
Company's long term business and prospects. Such Rights may include, as the
Committee may determine in its discretion, any of the following Rights or
any combination thereof:
(a) options ("Options") to purchase Common Shares, which may be either
incentive stock Options intended to qualify for treatment under
Section 422 of the Internal Revenue Code of 1986, as amended (the
"Code") ("ISO's") or non-qualified Options which are not intended to
so qualify;
(b) stock appreciation rights ("SARs") to receive in respect of Common
Shares subject to Options granted under the Plan:
(i) whole Common Shares having an aggregate Fair Market Value (as
hereinafter defined) equal to a percentage (up to 100%) of the
aggregate appreciation in value of the Common Shares in respect of
which the SAR is exercised, measured by the difference between the
aggregate Option price for such Common Shares and their aggregate Fair
Market Value (as hereinafter defined);
(ii) cash in an amount equivalent to that percentage appreciation
determined under clause (a); or
(iii) any combination of cash and whole Common Shares having a Fair
Market Value (as hereinafter defined), in the aggregate, equal to the
percentage appreciation determined under clause (a);
(c) rights ("Performance Awards") to receive, with respect to or unrelated
to Common Shares subject to Options or SARs granted under the Plan,
a predetermined amount, payable in cash or Common Shares, on such
terms and subject to such conditions including performance targets as
may be determined by the Committee, in its discretion. Performance
Awards may be payable over a specific period, and may be vested in
whole or in part on the date of award thereof, as determined from time
to time by the Committee in its discretion;
and
(d) awards ("Securities Awards") of Common Shares, of other shares of
capital stock, or of other securities of the Company, which awards may
be absolute or contingent upon continuation of employment or
achievement of one or more performance targets, may provide for
payment by the recipient of cash or deferred consideration that is
less than the Fair Market Value of such securities or for no such
consideration, and may provide for repurchase of such securities by
the Company in specific circumstances, all on such terms and subject
to such conditions as may be determined by the Committee in its
discretion. Securities Awards may be payable over a specific period,
and may be vested in whole or in part on the date of the award
thereof, as determined from time to time by the Committee in its
discretion.
Rights, when so determined by the Committee, will be subject to such
financial or non-financial performance or other criteria as may be adopted
from time-to-time by the Committee in its discretion. The performance
criteria ("Performance Criteria") applicable to any award to a Participant
who is, or is determined by the Committee, to be likely to become, a
"covered employee" within the meaning of Section 162(m) of the Code (or any
successor provision) shall be limited to growth, improvement or attainment
of certain levels of:
(i) return on capital, equity, or operating assets;
(ii) margins;
(iii) total stockholder return or market value relative to other
companies selected by the Committee;
(iv) operating profit or net income;
(v) sales, throughput, or product volumes; or
(vi) costs or expenses.
If the Committee determines that a change in the business, operations,
corporate structure or capital structure of the Company, or the manner in
which it conducts its business, or other events or circumstances render the
management performance objectives to be unsuitable, the Committee may
modify such Performance Criteria or the related minimum acceptable level
of achievement, in whole or in part, as the Committee deems appropriate and
equitable; provided, however, that no such modification shall be made in
the case of any award to a Participant who is, or is determined by the
Committee to be likely to become, a covered employee if the effect would
be to cause the award to fail to qualify for the performance-based
exception to Section 162(m) of the Code (or any successor provision). In
addition, at the time the Right is awarded and performance goals
established, the Committee is authorized to determine the manner in which
the Performance Criteria will be calculated or measured to take into
account certain factors over which Participants have no or limited control
including market related changes in inventory value, changes in industry
margins, changes in accounting principles, and extraordinary charges to
income.
Subject to adjustment as provided in Section 5 of this Plan, no Participant
shall be granted under this Plan in any fiscal year:
(i) Options and SARs, in the aggregate, for more than 200,000 Common
Shares;
(ii) Performance Awards and Securities Awards, in the aggregate, for more
than 200,000 Common Shares; and
(iii) Performance Awards, in the aggregate, for more than $1,000,000.
Each of the foregoing Rights will contain and be subject to such other
terms and conditions as the Committee from time to time determines pursuant
to Sections 1 or 2 or otherwise. Payment for any Right may be made by the
delivery of cash, Common Shares, any combination thereof, or other
consideration, as determined from time to time by the Committee in its
discretion. Any grant may provide for deferred payment of the Option price
from the proceeds of sale through a broker of some or all of the Common
Shares to which the exercise relates. The Committee shall not, without the
further approval of the stockholders of the Company, authorize the
amendment of any outstanding Option to reduce the Option price or authorize
the amendment of any outstanding SAR to reduce the base price. Furthermore,
no Option or SAR shall be canceled and replaced with awards having a lower
Option price or base price without the further approval of the stockholders
of the Company. Further, the Committee may in its discretion prohibit a
terminated employee from exercising a previously granted Option or
otherwise receiving the benefit of any previously granted Right if such
terminated employee has an outstanding loan from the Company, any parent
or any majority-owned subsidiary or any predecessor of any such
corporations. Notwithstanding any of the foregoing, and subject to the
provisions of Section 8, the Company retains the right to convert any
previously granted ISO's to non-qualified Options.
The Committee may provide for the grant, to any optionee except
Non-Employee Directors, of additional Options ("Reload Options") upon the
exercise of Options, including Reload Options, through the delivery of
Common Shares; provided, however, that (i) Reload Options may be granted
only with respect to the same number of Common Shares as were surrendered
to exercise the Options, (ii) the exercise price of the Reload Options will
be the Fair Market Value (as hereinafter defined), and (iii) with respect
to optionees who are subject to the reporting requirements of Section 16(a)
of the Exchange Act, the Reload Option may not be exercised after the
expiration or termination date of the Options with respect to which such
Reload Options were granted.
4. Transferability. No Option or other derivative security (as that term is
used in Rule 16b-3 of the Exchange Act) granted under this Plan may be
transferred by a Participant except by will or the laws of descent and
distribution. Options and SARs granted under this Plan may not be exercised
during a Participants lifetime except by the Participant or, in the event
of the Participants legal incapacity, by his guardian or legal
representative, acting in a fiduciary capacity on behalf of the Participant
under state law and court supervision. Notwithstanding the foregoing, the
Committee, in its sole discretion, may provide for the transferability of
particular awards under this Plan so long as such provisions will not
disqualify the exemption of other awards under Rule 16b-3 of the Exchange
Act.
5. Exercise Price; Adjustments. The exercise price of any Option may not be
less than the fair market value of the Common Shares covered thereby as
determined by the Committee from time-to-time ("Fair Market Value").
The Committee may, but will not be required to, make or provide for such
adjustments (eliminating fractions) in the originally specified price or
in the number or kind of Common Shares covered by outstanding Rights or in
other consideration which has been previously granted or is available for
issuance under the Plan (including shares of another issuer) as the
Committee may determine is equitably required to prevent dilution,
enlargement or any other change of or in the rights of recipients that
otherwise would result from any merger, spin-off or other distribution of
assets to shareholders, consolidation, reorganization, assumption, and
conversion of outstanding grants due to an acquisition, or other business
combination transaction, recapitalization, stock dividend, dividend in
property other than cash, stock split, liquidating dividend, combination
of shares, exchange of shares, change in corporate structure or otherwise,
from the date that any Right is granted or awarded by the Committee.
Moreover, the Committee may on or after the date of grant provide in the
agreement evidencing any award under this Plan that the holder of the award
may elect to receive an equivalent award in respect of securities of the
surviving entity of any merger, consolidation or other transaction or event
having a similar effect, or the Committee may provide that the holder will
automatically be entitled to receive such an equivalent award. The
Committee may also make or provide for such adjustments in the maximum
number of Common Shares specified in Sections 1 and 3 of this Plan as the
Committee may in good faith determine to be appropriate in order to reflect
any transaction or event described in this Section 5.
6. Incentive Options. No ISO shall be granted after the ten (10) year period
following the adoption of the Plan and no ISO shall be exercisable after
the expiration of ten (10) years from the date of grant. Notwithstanding
the provisions of Section 1 to the contrary, any Common Shares subject to
an SAR which has been granted in tandem with an ISO will not be available
for issuance under the Plan upon exercise of such SAR. Notwithstanding the
provisions of Section 5 to the contrary, no adjustment shall be made with
respect to any Option intended to qualify as an ISO if such an adjustment
would prevent such Option from so qualifying.
7. Foreign Participants. Subject to the provisions of Section 9, the
Committee may, in order to fulfill the Plan purposes and without amending
the Plan, modify previously granted Rights to employees who are foreign
nationals or employed outside the United States to recognize differences
in local law, tax policy or custom.
8. Non-Employee Directors: Restricted Shares. Each director of the Company
who is not an employee of the Company ("Non-Employee Director") will be
granted Common Shares that are forfeitable and nontransferable except as
provided in this Section 8 ("Restricted Shares") in lieu of all or a
portion (as specified by the Non-Employee Director) of his annual retainer
on the terms and conditions set forth in this Section 8.
(a) Non-Employee Directors serving on May 5, 1992 will be granted
Restricted Shares on the first Tuesday in May (the "Anniversary Date")
immediately after the expiration of the five year period following
grants of restricted Common Shares previously made to them under
Section 8 of the Diamond Shamrock, Inc. 1987 Long-Term Incentive Plan;
provided however, Non-Employee Directors who were granted restricted
Common Shares on July 1, 1987 will be granted Restricted Shares on
May 5, 1992.
(b) Non-Employee Directors first elected to the Company's Board of
Directors after May 5, 1992 will be granted Restricted Shares on the
day of election to the Board of Directors. The amount of the
Non-Employee Director's annual retainer used to determine the amounts
of the Grants attributable to the first partial year of service of any
new Non-Employee Director elected to the Board of Directors in a month
other than May will be pro-rated to the Anniversary Date which follows
election to the Board of Directors.
(c) Each Non-Employee Director will be granted additional Restricted
Shares on the fifth Anniversary Date that follows the initial date of
grant of Restricted Shares pursuant to Section 8(a) or Section 8(b)
of the Plan, and on the fifth Anniversary Date that follows the date
of each grant of Restricted Shares pursuant to this Section 8(c).
(d) Each Non-Employee Director will receive one-third of the value of his
annual retainer to which he would otherwise be entitled during the
five (5) years following the date of grant and assuming that the
amount of such retainer remains constant during such five-year period
in the form of Restricted Shares (the "Minimum Grant").
(e) Each Non-Employee Director may make an election to receive any or all
of the remaining cash balance of the annual retainer to which he would
otherwise be entitled during the five (5) years following the date of
the Minimum Grant and assuming that the amount of such retainer
remains constant during such five-year period in the form of
Restricted Shares (the "Elective Grant") . The Minimum Grant and the
Elective Grant are hereafter referred to as the "Grants." The election
will be in writing and must be delivered to the Company not later than
the date of the Minimum Grant. Any election of an Elective Grant will
be irrevocable.
(f) Minimum Grants will be made on the date of grant provided in Section
8(a), Section 8(b) or Section 8(c), as the case may be. Elective
Grants will be made on the first business day that is at least six
months and one day following the date of the corresponding Minimum
Grants. The total number of Restricted Shares included in each such
Grant will be equal to the amount of the Non-Employee Director's
retainer as provided in Section 8(b), Section 8(d) or Section 8(e) of
the Plan, as the case may be, multiplied by the percentage of annual
retainer represented by the Minimum Grant or Elective Grant, as the
case may be, divided by the closing sale price per share of the Common
Shares as reported in the New York Stock Exchange Composite
Transactions Report (or any other consolidated transactions reporting
system which subsequently may replace such Composite Transactions
Report) for the New York Stock Exchange trading day immediately
preceding such Minimum Grant or Elective Grant, or if there are no
sales on such date, on the next preceding day on which there were
sales, and rounded up to the next whole Restricted Share.
(g) Twenty percent (20%) of the Restricted Shares subject to a Grant will
become transferable and nonforfeitable one year after the Anniversary
Date on which the Grant was elected; provided however, that the
Restricted Shares may not be sold until at least six months after the
grant date. An additional twenty percent (20%) will become
transferable and nonforfeitable two, three, four, and five years after
the Anniversary Date on which the Grant was elected. The foregoing
percentages will not apply, however, to any Non-Employee Director who
is first elected to the Company's Board of Directors after May 5, 1992
and in a month other than May. The number of Restricted Shares awarded
to any such Non-Employee Director that becomes transferable and
nonforfeitable on the Anniversary Date which immediately follows the
date of such election will equal 20% of the total number of Restricted
Shares that would have been awarded to the director had he or she
first become a Non-Employee Director as of the Anniversary Date
immediately prior to election to the Board of Directors (the "Full
Term Share Amount") multiplied by a fraction, the numerator of which
is the amount of the annual retainer paid to such Non-Employee
Director for service as a director for the period ending on the
Anniversary Date which immediately follows the date of election and
the denominator of which is the total annual retainer payable to such
Non-Employee Director as if he or she had been a Non-Employee Director
as of the Anniversary Date immediately prior to election to the Board
of Directors. An additional 20% of the Full Term Share Amount will
become transferable and nonforfeitable on the Anniversary Dates which
are one, two, three, and four years after the Anniversary Date which
immediately follows the date of election to the Board of Directors.
(h) If a Non-Employee Director's services as a board member are terminated
for any reason at any time before completion of the Non-Employee
Director's annual term of service, a portion of the Restricted Shares
that would have become nonforfeitable and transferable at the end of
such complete annual term will become nonforfeitable and transferable
pursuant to this Section 8(h), and Section 8(g) shall not apply. The
number of whole Restricted Shares that will become transferable and
nonforfeitable will be determined by multiplying the number of
Restricted Shares by a fraction, the numerator of which will equal the
number of complete three-month periods during which at all times such
Non-Employee Director was serving as a Non-Employee Director within
the twelve-month period in which the Non-Employee Director's service
terminates (such twelve-month period to commence on the first day of
May and such three-month periods to commence on August 1, November 1
and February 1) and the denominator of which is four (4).
(i) Any increase in retainer fees paid to Non-Employee Directors by the
Company occurring after May 5, 1992, will not be reflected in any
outstanding Grant but will be paid in cash.
(j) The provisions of Section 8 of the Plan relating to Minimum Grants may
not be amended more than once every six months, other than to comport
with changes in the Code, ERISA or the rules thereunder.
(k) Each Non-Employee Director will enter into an agreement with the
Company which will set forth the terms of the Grants, in such form as
the Committee determines is consistent with the provisions of the
Plan. In the event of any inconsistency between the provisions of the
Plan and any such agreement entered into hereunder, the provisions of
the Plan will govern.
9. Non-Employee Directors: Options.
(a) Grant of Options. Effective and including May 2, 1995, each
Non-Employee Director shall be granted, as of the close of business on
each Anniversary Date, an Option to purchase 1,500 Common Shares. Each
such grant shall be evidenced by an agreement in such form as attached
to this Plan as Appendix A, and shall be subject to the additional
terms and conditions set forth in this Section 9.
(b) Terms and Exercise of Options.
(i) Except as provided in subsection (iii) below, 100% of the Option
shall become exercisable three years from the date the Option is
granted.
(ii) An Option shall expire ten years from the date the Option is
granted and shall be subject to earlier termination as hereinafter
provided. Once an Option becomes exercisable, it may thereafter be
exercised, wholly or in part, at any time prior to its expiration or
termination. In the event of termination of service on the Company's
Board of Directors, other than as provided in subsection (iii) below,
an outstanding Option may be exercised only to the extent it was
exercisable on the date of such termination and shall expire three
years after such termination, or on its stated expiration date,
whichever occurs first.
(iii) Upon the occurrence of any of the following events prior to the
expiration of an Option, the Option shall become immediately and fully
exercisable:
(1) death of the Director;
(2) disability of the Director;
(3) the Director ceases to be a director of the Company and is
eligible to participate in the Diamond Shamrock, Inc.
Retirement Plan for Directors; or
(4) change in control of the Company which will be deemed to
have occurred when a report is filed on Schedule 13D or
Schedule 14D-1 (or any successor schedule, form or report),
each as promulgated pursuant to the Exchange Act,
disclosing that any person (as the term "person" is used in
Section 13 (d)(3) or Section 14 (d)(2) of the Exchange Act)
has become the beneficial owner (as the term "beneficial
owner" is defined under Rule 13d-3 or any successor rule or
regulation promulgated under the Exchange Act) of
securities representing more than 25% of the combined
voting power of the then-outstanding voting securities of
the Company.
(c) Exercise Price. The exercise price of any Option granted to a
Non-Employee Director shall be equal to the closing sale price per
share of the Common Shares as reported in the New York Stock Exchange
Composite Transactions Report (or any other consolidated transactions
reporting system which subsequently may replace such Composite
Transactions Report) for the New York Stock Exchange trading day
immediately preceding such grant, or if there are no sales on such
date, on the next preceding day on which there were sales.
(d) Payment. An Option may be exercised by a Non-Employee Director only
upon payment to the Company in full of the Option price of the Common
Shares to be delivered. Such payment shall be made in cash or in
Common Shares previously owned by the optionee for more than six
months, or in a combination of cash and such Common Shares.
10. Withholding Taxes. To the extent that the Company is required to withhold
federal, state, local or foreign taxes in connection with any payment made
or benefit realized by a Participant or other person under this Plan, and
the amounts available to the Company for the withholding are insufficient,
it shall be a condition to the receipt of any such payment or the
realization of any such benefit that the Participant or such other person
make arrangements satisfactory to the Company for payment of the balance
of any taxes required to be withheld. At the discretion of the Committee,
any such arrangements may without limitation include relinquishment of a
portion of any such payment or benefit or the surrender of outstanding
Common Shares. The Company and any Participant or such other person may
also make similar arrangements with respect to the payment of any taxes
with respect to which withholding is not required.
11. Effective Date. The Plan is effective as of May 1, 1990; the amendments
to the Plan approved by the Company's Board of Directors on February 7,
1995 will become effective upon approval by the stockholders of the
Company.
12. Amendment.
(a) This Plan may be amended from time-to-time by the Committee; provided,
however, except as expressly authorized by this Plan, no such
amendment shall increase the maximum number of Common Shares specified
in Sections 1 and 3 hereof, or otherwise cause this Plan to cease to
satisfy any applicable condition of Rule 16b-3 of the Exchange Act,
without the further approval of the stockholders of the Company.
(b) Any Right that may be granted pursuant to an amendment to this Plan
that shall have been adopted without the approval of the stockholders
of the Company shall be null and void if it is subsequently determined
that such approval was required in order for this Plan to continue to
satisfy the applicable conditions of Rule 16b-3 of the Exchange Act.
13. Termination. If the Plan is terminated, the terms of the Plan will,
notwithstanding such termination, continue to apply to awards of Rights
made prior to termination, and no suspension, termination, modification or
amendment of the Plan or any Right may, without the consent of the
recipient to whom an award of Rights theretofore has been granted,
adversely affect the rights of such recipient under such award.
14. Governing Law. This Plan shall be governed by the laws of the State of
Delaware and applicable federal law.
15. Rule 16b-3 Transition. The Plan is intended to comply with and be subject
to Rule 16b-3 of the Exchange Act as in effect prior to May 1, 1991. The
Committee may at any time elect that the Plan shall be subject to Rule
16b-3 of the Exchange Act as in effect on and after May 1, 1991.
<PAGE>
APPENDIX "A" TO THE LONG-TERM INCENTIVE PLAN
NON-EMPLOYEE DIRECTOR'S STOCK OPTION AGREEMENT
1. Grant:Diamond Shamrock, Inc. ("DS") hereby grants to (the
"Director") an option (the "Option") to purchase at a price of $ per
share (the "Price") all or part of 1,500 shares ("Option Shares") of Common
Stock, $.01 par value, of DS ("Common Stock") pursuant to the Diamond
Shamrock, Inc. Long-Term Incentive Plan (the "Plan") . Capitalized terms
used in this agreement that are not otherwise defined herein will have the
meaning assigned to such terms in the Plan. Subject to the terms hereof,
the Option shall expire on the tenth anniversary of May (the "Grant
Date") and shall become exercisable to the extent of 100 percent of the
Option Shares covered thereby on the third anniversary of the Grant Date.
The Option will not be transferable other than by will or the applicable
laws of descent and distribution. The Option may not be exercised during
the Director's lifetime except by the Director or, in the event of the
Director's legal incapacity, by the Director's guardian or legal
representative, acting in a fiduciary capacity on behalf of the Director
under state law and court supervision.
2. Exercise of Option: Subject to the provisions of Paragraphs 1, 2, and 4
hereof, the Option may be exercised by the Director (or the Director's
executor or administrator) in whole or in part from time to time by written
notice to the Secretary of DS at DS's corporate headquarters. Upon the full
or partial exercise of the Option and the payment of the Price therefor by
the Director (which may be paid in cash, shares of Common Stock previously
owned by the Director for more than six months, or a combination thereof),
DS will deliver to the Director certificates representing the Option
Shares.
3. Effect of Termination of Employment: If the Director ceases to be a
director of either DS or any of its majority-owned subsidiaries at any time
during the duration of the Option, other than for one of the reasons
provided below, the Option may be exercised only to the extent it was
exercisable on the date of such termination and shall expire three years
after such termination, or on its stated expiration date, whichever occurs
first. Upon the occurrence of any of the following events prior to the
expiration of an Option, the Option shall become immediately and fully
exercisable: (a) death of the Director; (b) disability of the Director; (c)
Director ceases to be director of DS and is eligible to participate in the
Diamond Shamrock, Inc., Retirement Plan for Directors; or (d) upon a Change
in Control. A "Change in Control" will be deemed to have occurred when a
report is filed on Schedule 13D or Schedule 14D-1 (or any successor
schedule, form or report), each as promulgated pursuant to the Exchange
Act, disclosing that any person (as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial
owner (as the term "beneficial owner" is defined under Rule 13d-3 or any
successor rule or regulation promulgated under the Exchange Act) of
securities representing more than 25% of the combined voting power of the
then-outstanding voting securities of DS. Notwithstanding anything to the
contrary contained in this Paragraph, in no event will the Option be
exercisable beyond ten years from the Grant Date.
4. Severability: Any provision of this agreement which is finally held to be
invalid or unenforceable shall be ineffective to the extent of such
invalidity or unenforceability without invalidating the remaining
provisions hereof, and this agreement shall be construed as if such invalid
or unenforceable provision had not been contained herein.
5. Incorporation by Reference: The Option is granted pursuant and subject to
the Plan; and the Plan, together with all resolutions, requirements or
guidelines previously or hereafter adopted by the Committee in accordance
with the Plan, are hereby incorporated herein by reference.
6. Amendments: Any amendment to the Plan shall be deemed to be an amendment
to this agreement to the extent that the amendment is applicable hereto;
provided, however, that no amendment shall adversely affect the rights of
the Director hereunder without the Director's consent.
7. Governing Law: This agreement is made under, and shall be construed in
accordance with, the internal substantive laws of the State of Delaware.
DATED as of May , .
Diamond Shamrock, Inc.
Chairman and Chief Executive Officer
The undersigned hereby accepts the foregoing according to its terms.
Director
W2744.lwp
May 2, 1995
Diamond Shamrock, Inc.
9830 Colonnade Boulevard
San Antonio, Texas 78230
Re: Diamond Shamrock, Inc. Long-Term Incentive Plan
Gentlemen:
I am Senior Vice President/Group Executive and General Counsel for Diamond
Shamrock, Inc., a Delaware corporation (the "Company"). In connection with the
addition of 1,000,000 shares of common stock, $0.01 par value of the Company
("Common Stock"), to the Company's Long-Term Incentive Plan (the "Plan"), I have
examined the Plan and such other documents, records and matters of law as I have
deemed necessary for purposes of this opinion and based thereupon, I am of the
opinion that:
(1) The shares of Common Stock, that may be issued and sold or delivered
pursuant to the Plan will be, when issued and sold or delivered in
accordance with the Plan, duly authorized, validly issued, fully paid
and nonassessable.
(2) The rights to purchase Series A Junior Participating Preferred Stock
(the "Rights") in accordance with the Rights Agreement dated as of
March 6, 1990, between the Company and Ameritrust Company National
Association, have been duly authorized by the Company and, when duly
issued, will be validly issued.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the
Registration Statement on Form S-8 for the Plan filed by the Company with the
Securities and Exchange commission to effect registration of such shares of
Common Stock and Rights under the Securities Act of 1933, as amended, and to the
reference to me under the caption "Legal Matters" in the Prospectus constituting
a part of such Registration Statement.
As noted under such caption in the Prospectus, I beneficially own shares of
Common Stock of the Company and I anticipate being eligible to participate in
the Plan.
Very truly yours,
/S/ Timothy J. Fretthold
TJF/lmk
W2166.LW
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 24, 1995 which is attached
as Exhibit 13.3 to Diamond Shamrock, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1994. We also consent to the incorporation by reference
of our report on the Financial Statement Schedules, which is included in
Item 14 (a)(2) of such Annual Report on Form 10-K.
/s/ Price Waterhouse LLP
PRICE WATERHOUSE LLP
San Antonio, Texas
May 1, 1995
W2440D.LW
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitute and
appoint Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of
them, their true and lawful attorney or attorneys-in-fact, with full power of
substitution and revocation, for them and in their name, place, and stead, in
any and all capacities (including as an officer or director of DIAMOND SHAMROCK,
INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 1,000,000 shares of Common Stock (and associated stock purchase rights) of
the Corporation for issuance pursuant to the Corporation's Long-Term Incentive
Plan, and to sign any or all amendments and any or all post-effective amendments
to such Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and Exchange
Commission granting unto said attorney or attorneys-in-fact, and each of them,
full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as they might or could do in person, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of them or their
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
/S/ R.R. HEMMINGHAUS /S/ LAURO F. CAVAZOS
/S/ R.C. BECKER /S/ WILLIAM L. FISHER
/S/ GARY E. JOHNSON /S/ BOB MARBUT
/S/ B. CHARLES AMES /S/ KATHERINE D. ORTEGA
/S/ E. GLENN BIGGS /S/ W.E. BRADFORD
/S/ W.H. CLARK
Dated: May 2, 1995
W2168a.LW
CERTIFICATE
DIAMOND SHAMROCK, INC.
I, JERRY D. KING, Secretary of DIAMOND SHAMROCK, INC., a Delaware
corporation, and custodian of the books and records of said corporation, do
hereby certify that the following resolutions were duly adopted by the Board of
Directors of said corporation on February 7, 1995 and that said resolutions are
in full force in effect.
RESOLVED that amendments to the Diamond Shamrock, Inc. Long-Term Incentive
Plan in the form presented to the Board of Directors of the Corporation be, and
hereby are, adopted by the Corporation and that such approval and adoption be
submitted for ratification to the stockholders at the "1995 Annual Meeting of
Stockholders" and that it be, and hereby is, recommended that the stockholders
vote for ratification.
RESOLVED that the appropriate officers of the Corporation be,
and they hereby are, authorized to execute such amendments
subject to such changes as may in their or his judgment, or in
the judgment of the Compensation Committee, be necessary,
appropriate or desirable, and any such action taken or any
document executed and delivered by them or any of them shall
be conclusive evidence of their or his authority to take,
execute and deliver the same.
RESOLVED that the appropriate officers of the Corporation be,
and hereby they are, authorized and directed on behalf of the
Corporation to prepare, execute and file with the Securities
and Exchange Commission Registration Statements on Form S-8
for the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of 1,000,000 shares of Common Stock
of the Corporation for issuance pursuant to the Long-Term
Incentive Plan, and to file such amendments thereto as may, in
the opinion of the officers executing the same on behalf of
the Corporation, be necessary or proper to effect the
registration of such shares of Common Stock (the "Shares")
under the 1933 Act, and to cause to be filed with the
Securities and Exchange Commission all such post-effective
amendments, additional papers, prospectuses, undertakings and
documents as may be necessary or advisable in order to make
such registration statement effective, to comply with the
provisions of the 1933 Act, and to comply with any
undertakings of the Corporation made in connection with such
registration.
RESOLVED that Timothy J. Fretthold and Jerry D. King, or
either of them, be and hereby are designated to act on behalf
of the Corporation as its agent or agents for service in
respect of matters concerning the Registration Statements
relating to the Shares with the powers enumerated in Rule 487
of the Rules and Regulations of the Securities and Exchange
Commission.
RESOLVED that the name of any officer or director of the
Corporation signing the Registration Statements (and any
amendments thereto) on its behalf may be signed pursuant to a
power of attorney duly executed and delivered by the officer
or director whose name is so signed.
RESOLVED that the proper officers and employees of the
Corporation be, and hereby they are, authorized and directed
in the name and on behalf of the Corporation to take any and
all action which they in their discretion may deem necessary
or advisable in order to register or qualify the Shares, or
any number thereof, and/or the awards granted pursuant to such
Long-Term Incentive Plan, for issuance and sale under the
securities laws of any of the states of the United States of
America, or to take any and all other action which they in
their discretion may deem necessary or advisable in order to
register or license the Corporation as a dealer or broker in
securities in any such state or to secure permission for the
Corporation to issue such Shares pursuant to such Long-Term
Incentive Plan and in connection with such applications,
registrations or qualifications to execute, acknowledge,
verify, deliver, file and publish all such applications,
reports, issuance, covenants, certified copies of resolution,
powers of attorney, consents to service of process and any and
all other papers or instruments as may be required under the
laws of any such state, and to take any and all other action
which they deem necessary or advisable in order to maintain
such registration or qualification for as long as they deem to
be in the best interest of the Corporation or in order to
cancel such registration or qualification if and when they
deem such cancellation to be in the best interest of the
Corporation.
RESOLVED that if, in any state in which any application,
statement, notice or other instrument is required for the
purpose of registering or qualifying the Shares granted
pursuant to the Long-Term Incentive Plan for offering or sale
or to register or license the Corporation as a dealer or
broker in securities, a prescribed form of resolution or
resolutions relating to such offering or sale or to any
application, statement, notice or other instrument in
connection is required, each such preamble and resolution
shall be deemed to have been, and hereby is, adopted by this
Board of Directors and the Secretary of the Corporation is
hereby authorized and directed to certify any such preamble or
resolution as though the same were now presented to this
meeting, all such preambles and resolutions to be inserted in
the Minute Book following the minutes of this meeting.
RESOLVED that the appropriate officers of the Corporation be,
and hereby they are, authorized and directed to prepare,
execute and file with the New York Stock Exchange listing
applications, listing fee agreements and listing agreements
with respect to the listing on such exchange, upon official
notice of issuance of the Shares issued from time to time
under and pursuant to the provisions of such Long-Term
Incentive Plan, and the proper officers of the Corporation be,
and hereby they are, authorized and empowered to cause such
listing applications to be amended and modified to the extent
that the officers executing the same may deem necessary or
proper and to cause to be filed with such exchange, all
additional papers, undertakings, agreements and documents as
may be necessary or advisable in order to cause such exchange
to list those Shares.
RESOLVED that Timothy J. Fretthold and Jerry D. King, and
either of them be, and hereby they are, authorized to appear
if necessary or advisable before officials of such exchange,
with authority to make changes in the listing applications
relating to the Shares to be issued under and pursuant to the
provisions of such Long-Term Incentive Plan and take such
steps as may be necessary to effect the listing of the Shares
on such exchange.
RESOLVED that the Corporation's Transfer Agent be, and hereby
it is duly authorized to either (a) issue or (b) transfer from
the Corporation's treasury as may be authorized in the manner
provided below, and that the Corporation's Registrar be and
hereby it is duly authorized to register certificates of
Common Stock of this Corporation issued or transferred from
the Corporation's treasury pursuant to the terms of such
Long-Term Incentive Plan, upon written certification and
authorization by the Chief Executive Officer, any Vice
President or the Secretary of the Corporation that an award
was granted thereunder to each director or employee designated
in such certification, that each such director or employee is
entitled to receive the number of shares specified in such
certification and that shares of Common Stock therefore are to
be either issued or transferred from the Corporation's
treasury, as the case may be.
RESOLVED that the appropriate officers and employees of the
Corporation be, and hereby they are, authorized and directed
to take any and all further action and do any and all other
things that may be necessary, proper or advisable to
effectuate the foregoing resolutions.
RESOLVED that such further specific resolutions as may be
required in connection with the approval of the amendment of
the Long-Term Incentive Plan as contemplated above be, and
hereby they are, deemed adopted and such resolutions may be
certified by the Secretary of the Corporation as having been
adopted by the Board of Directors provided that a copy thereof
is inserted in the Minute Book following the minutes of this
meeting.
IN WITNESS WHEREOF, I have set my hand and the seal of this
corporation upon this 26th day of April, 1995.
/S/ Jerry D. King
w2723.lw
