Registration No. 33-59025
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO.1
TO
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)
In accordance with Rule 429 of the General Rules and Regulations under
the Securities Act of 1933, as amended, this Post-Effective Amendment
No. 1 to Form S-8 relates to shares of Common Stock covered by Form S-8
Registrations Statements Nos. 33-34306, 33-47761 and 33-59025.
This Post-Effective Amendment No. 1 to Form S-8 is being filed to
include, as Exhibit 4.1 to the above three registrations, the text of
Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended effective
May 2, 1995.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 8. Exhibits
4.1 Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended
effective May 2, 1995.
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.
**Each document marked by two asterisks was previously filed as part of
Registration Statement No. 33-59025.
***Powers of Attorney of directors and officers of the Company were
previously filed as part of Registration Statements Nos. 33-34306, 33-47761
(and Amendment No. 1 thereto), and 33-59025, except those filed herewith.
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 Post-Effective Amendment No. 1 to
Form S-8 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of San Antonio, Texas, on the 22 day of December,
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 Post-Effective Amendment
No. 1 to Form S-8 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 December 22, 1995
and Chief Executive
Officer
*R.C. BECKER Vice President and December 22, 1995
Treasurer (Principal
Financial Officer)
*GARY E. JOHNSON Vice President and December 22, 1995
Controller(Principal
Accounting Officer)
*B. CHARLES AMES Director December 22, 1995
*E. GLENN BIGGS Director December 22, 1995
*W.E. BRADFORD Director December 22, 1995
*LAURO F. CAVAZOS Director December 22, 1995
*W.H. CLARK Director December 22, 1995
*WILLIAM L. FISHER Director December 22, 1995
*BOB MARBUT Director December 22, 1995
*KATHERINE D. ORTEGA Director December 22, 1995
Timothy J. Fretthold, by signing his name hereto, does hereby sign this
Post-Effective Amendment No. 1 to 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
December 22, 1995
INDEX TO EXHIBITS
Exhibit
No.
Exhibit
4.1 Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended
effective May 2, 1995.
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.
** Each document marked by two asterisks was previously filed as part
of Registration Statement No. 33-59025.
*** Powers of Attorney of directors and officers of the Company were
previously filed as part of Registration Statement No. 33-34306, 33-47761
(and Amendment No. 1 thereto), and 33-59025, except those filed herewith.
W2754A.LW
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 arket 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.
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.
By: \S\
Chairman and Chief Executive Officer
The undersigned hereby accepts the foregoing according to its terms.
/S/
Director
W2744.lwp
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, the undersigned hereby constitutes
and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and
each of them, his true and lawful attorney or attorneys-in-fact, with full
power of substitution and revocation, for him and in his name, place, and
stead, in any and all capacities (including as an officer or director of
DIAMOND SHAMROCK, INC. (the "Corporation"), to sign Post-Effective Amendment
No. 1 to a Registration Statement on Form S-8, Registration No. 59025, of the
Corporation for the purpose of amending such Registration Statement and
incorporating by reference such amendment into Registration Statements Nos.
33-34306 and 33-47761, and to sign any or all further post-effective
amendments to any such Registration Statements, 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 he 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/ W.E. Bradford
Dated: October 24, 1995
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, the undersigned hereby constitutes
and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and
each of them, his true and lawful attorney or attorneys-in-fact, with full
power of substitution and revocation, for him and in his name, place, and
stead, in any and all capacities (including as an officer or director of
DIAMOND SHAMROCK, INC. (the "Corporation"), to sign Post-Effective Amendment
No. 1 to a Registration Statement on Form S-8, Registration No. 59025, of the
Corporation for the purpose of amending such Registration Statement and
incorporating by reference such amendment into Registration Statements Nos.
33-34306 and 33-47761, and to sign any or all further post-effective
amendments to any such Registration Statements, 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 he 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/ W.H. Clark
Dated: October 24, 1995
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that, the undersigned hereby constitutes and
appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of
them, his true and lawful attorney or attorneys-in-fact, with full power of
substitution and revocation, for him and in his name, place, and stead, in any
and all capacities (including as an officer or director of DIAMOND SHAMROCK,
INC. (the "Corporation"), to sign Post-Effective Amendment No. 1 to a
Registration Statement on Form S-8, Registration No. 59025, of the Corporation
for the purpose of amending such Registration Statement and incorporating by
reference such amendment into Registration Statements Nos. 33-34306 and
33-47761, and to sign any or all further post-effective amendments to any such
Registration Statements, 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 he 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/ Lauro F. Cavazos
Dated: October 24, 1995
W2756.LW