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.
NONQUALIFIED 401(k) 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)
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
____________________________________________________________________________
Deferred
Compensation
obligations(1) $3,000,000 100%(2) $3,000,000(2) $1,034.48
Common 100,000 $24.6875(4) $2,468,750(4) $ 851.29
Stock,
$.01 par
value(3)
(1) The Deferred Compensation Obligations are unsecured general
obligations of Diamond Shamrock, Inc. to pay deferred compensation
in the future in accordance with the terms of the Diamond Shamrock,
Inc. Nonqualified 401(k) Plan (the "Plan").
(2) Estimated solely for the purpose of determining the registration
fee.
(3) Includes associated preferred share purchase rights issuable
pursuant to the Rights Agreement filed as Exhibit 4.2 hereto.
(4) 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")
$24.6875 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 November 22, 1995.)
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 Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1995, June 30, 1995, and September 30, 1995, and the Company's
Current Reports on Form 8-K, dated January 25, 1995, February 6, 1995, and June
1, 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 4. Description of Securities
The Plan allows executive participants to defer compensation and director
participants to defer annual retainer and meeting fees. Before the start of the
fiscal year in which the compensation will be earned, participants may elect the
amount to be deferred and the time and manner of distribution. The amounts
deferred represent unsecured general obligations ("Obligations") of the Company
to pay, in the future, deferred compensation and any net earnings attributable
thereto in accordance with the terms of the Plan and the Trust Agreement between
the Company and Key Trust Company of Ohio, N.A. (formerly known as AmeriTrust
Company N.A.) (the "Trustee") dated as of April 8, 1988, as amended (the "Trust
Agreement"). The Obligations may be deemed to be a security and, therefore,
are being registered along with Common Stock that may be issued in satisfaction
of the Obligations in certain circumstances.
Participants and beneficiaries have the status of general unsecured
creditors with respect to the assets of the trust. No trust beneficiary shall
have any preferred claim on, or any beneficial ownership interest in, any assets
in the trust prior to the time that such assets are paid to a trust
beneficiary. The obligation of the Trustee to pay benefits pursuant to the Trust
Agreement constitutes an unfunded and unsecured promise to pay such benefits.
The Trustee has only the duties described herein and in the Trust Agreement and
has no authority to enforce the Company's Obligations to participants or
otherwise represent participants under the Plan. The Obligations will not have
the benefit of a negative pledge or any other affirmative or negative covenant
on the part of the Company.
The amount deferred by each participant is determined in accordance with
the Plan based on the participant's elections. Such amounts will be payable on
a date selected by the participant in accordance with the terms of the Plan.
The deferred amounts may be deemed invested in one or more deemed investment
funds available under the Plan. The Company will credit the participant's
account with a partial "match" of the deferrals, as described in the Plan. The
amount of any deferrals and "matches" shall be credited to an account
maintained by the Company on its books in the name of the participant. The
balance of the account will be increased or decreased to reflect income,
expenses, gains, and losses deemed attributable to the account.
Neither any participant nor any beneficiary shall have the right to
alienate, assign, or encumber any amount that may be payable under the Plan nor
shall any account be subject to alienation, assignment, encumbrance, or
garnishment, voluntary or involuntary, by process of law or otherwise.
Notwithstanding the foregoing, the Company may follow the terms of any court
order issued in connection with any domestic relations proceeding including but
not limited to marital dissolution or child support.
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. Nonqualified 401(k) Plan
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)*
5 Opinion of Timothy J. Fretthold, Esq.
15 Independent Accountants' Awareness Letter
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5)
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 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, represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase of
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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 30th day of November, 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 November 30, 1995
and Chief Executive
Officer
*R.C. BECKER Vice President and November 30, 1995
Treasurer (Principal
Financial Officer)
*GARY E. JOHNSON Vice President and November 30, 1995
Controller(Principal
Accounting Officer)
*B. CHARLES AMES Director November 30, 1995
*E. GLENN BIGGS Director November 30, 1995
*W.E. BRADFORD Director November 30, 1995
*LAURO F. CAVAZOS Director November 30, 1995
*W.H. CLARK Director November 30, 1995
*WILLIAM L. FISHER Director November 30, 1995
*BOB MARBUT Director November 30, 1995
*KATHERINE D.ORTEGA Director November 30, 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
Timothy J. Fretthold
Attorney-in-fact
November 30, 1995
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Exhibit
4.1 Diamond Shamrock, Inc. Nonqualified 401(k) Plan
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)*
5 Opinion of Timothy J. Fretthold, Esq.
15 Independent Accountants' Awareness Letter
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5)
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
W3002.asc
DIAMOND SHAMROCK, INC.
NONQUALIFIED 401(k) PLAN
1. Purpose of Plan.
It is the purpose of this Plan (a) to enable each Director of the
Corporation who is separately compensated for his or her services on the Board
of Directors of the Corporation to defer some or all compensation payable for
future services to be performed by such Director as a member of the Board of
Directors of the Corporation or as a member of any committee of the Board, and
(b) to enable each employee who is in a select group of management and who earns
at least Sixty-Six Thousand and No/100 Dollars ($66,000.00) per year in
Compensation (as adjusted each year by the Internal Revenue Service for cost of
living increases in accordance with Internal Revenue Code sections 414(q) and
415(d)) to defer part of the Compensation payable for future services to be
performed by such employee as an executive of the Corporation.
2. Definitions.
The following definitions are used throughout the Plan:
(a) "Account" means the account, described in Section 7 below, to which is
credited Compensation deferred in accordance with this Plan.
(b) "Administrator" means the person designated by the Board of Directors
or by the committee described by Section 2(d) hereof with power and authority to
construe, interpret and administer this Plan pursuant to Section 12 below.
(c) "Beneficiary" means the person or persons designated from time to time
by a Participant to receive payments under this Plan after the Participant's
death, using the Notice of Beneficiary Designation, a form of which is attached
as Exhibit C, or some other method of designation which provides Beneficiary
designation information similar to that in such Notice of Beneficiary
Designation.
(d) "Board" or "Board of Directors" means the Board of Directors of the
Corporation or any committee of such Board of Directors to the extent that such
committee has been delegated authority to act on behalf of the Board of
Directors with respect to this Plan.
(e) "Cause" means failure to return from a leave of absence, criminal
activity, or willful misconduct or gross negligence in the performance of duties
or in the observation of written Corporation personnel policies applicable to
the Executive.
(f) "Code" means the Internal Revenue Code of 1986, as amended.
(g) "Common Stock" means whole shares of common stock of the Corporation.
(h) "Compensation" means payments that may be made by the Corporation to a
Director Participant for services on the Corporation's Board of Directors or on
any committee of the Board, including retainer fees to be paid in cash and
meeting fees, and payments that may be made by the Corporation to an Executive
Participant for services rendered to the Corporation, including base salary and
annual performance incentives.
(i) "Corporation" means Diamond Shamrock, Inc., a Delaware corporation,
or, where the context requires, any affiliate or subsidiary of Diamond Shamrock,
Inc.
(j) "Director" means a member or honorary member of the Board of
Directors of the Corporation.
(k) "Director Participant" means any Director who is separately
compensated for his services on the Board of Directors, or on any committee of
the Board, and who participates in this Plan.
(l) "Effective Date" means January 1, 1996.
(m) "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
(n) "Executive" means any employee of the Corporation who is in a select
group of management and earns at least Sixty-Six Thousand and No/100 Dollars
($66,000.00) per year in Compensation (as adjusted each year by the Internal
Revenue Service for cost of living increases in accordance with Internal Revenue
Code sections 414(q) and 415(d)).
(o) "Executive Participant" means any Executive who participates in this
Plan.
(p) "401(k) Plan" means the Diamond Shamrock, Inc. 401(k) Retirement
Savings Plan.
(q) "Notice of Beneficiary Election" means the notice provided for in
Section 11 below.
(r) "Notice of Election" means the notice provided for in Section 5 below.
(s) "Participant" means any Director Participant or Executive
Participant.
(t) "Plan" means the Diamond Shamrock, Inc. Nonqualified 401(k) Plan, as
amended.
(u) "Year of Service" means, with respect to a Director Participant, a 12-
consecutive-month period during which a Director Participant served as a
separately compensated member of the Board of Directors. With respect to an
Executive Participant, service and year of service shall be determined in the
same manner as they are determined in the 401(k) Plan.
3. Eligibility.
(a) Any Director of the Corporation who is separately compensated for such
Director's services on the Board of Directors shall be eligible to participate
in this Plan; provided, however, that any Director who initially is so
separately compensated after January 1 in any calendar year shall become
eligible to participate in this Plan beginning January 1 of the following
calendar year.
(b) Any Executive of the Corporation shall be eligible to participate in
this Plan; provided, however, that any person who initially becomes an Executive
after January 1 in any calendar year shall become eligible to participate in
this Plan beginning January 1 of the following calendar year.
4. Account Credits.
Accounts will be credited with Elective Deferrals, Matching Contributions,
and Make-Up of 401(k) Match Contributions.
(a) Elective Deferrals. "Elective Deferrals" are amounts credited to the
Accounts of Executive Participants who have agreed to defer receipt of their
base salary and/or bonus, and amounts credited to the Accounts of Director
Participants who have agreed to defer receipt of their annual retainer or
meeting fees. Executive participants may defer from 1% to 20% of base salary
and from 1% to 100% of annual incentive bonus. The percentage of base salary
and annual incentive bonus deferred must be the same up to 6%. Director
participants may defer any percentage of annual retainer or meeting fees.
(b) Matching Contributions. "Matching Contributions" are additional
amounts credited to the accounts of Participants who have made Elective
Deferrals. The Corporation will credit the Participant's Account with an
amount equal to 50% of the Participant's Elective Deferral; provided, however,
no Matching Contribution to an Executive Participant's Account will exceed 3% of
Compensation when added to the matching contribution which would have been made
by the Corporation pursuant to the 401(k) Plan if the Executive Participant had
deferred the maximum amount possible through the 401(k) Plan consistent with
that plan and Internal Revenue Service nondiscrimination testing and deferral
limitations and no Matching Contribution to a Director Participant's Account
will exceed 3% of Compensation.
(c) Make-Up of 401(k) Match Contributions. Compensation of an Executive
Participant which is deferred under the 401(k) Plan does not include
Compensation deferred pursuant to this Plan. To recognize that Elective
Deferrals made by an Executive Participant in this Plan reduce the match by the
Corporation to such Executive Participant's account in the 401(k) Plan,
additional amounts will be credited to such Executive Participant's Account in
this Plan equal to the 401(k) Plan match lost because of such salary reduction
("Make-Up of 401(k) Match Contributions").
5. Manner of Election.
(a) Any Director or Executive wishing to participate in this Plan must
file with the Administrator a written notice, on the Notice of Election, a form
of which is attached as Exhibit A, electing to defer payment of such person's
Compensation as may be permitted under this Plan. An election shall be
effective with respect to Compensation earned during the first calendar year
that commences after the date of filing of the Notice of Election, and except
to the extent such election is subsequently modified or terminated as provided
below, subsequent calendar years.
(b) An election may be modified by filing with the Administrator a new
Notice of Election on or before the November 30 immediately preceding the first
calendar year for which such modification is to be effective (for 1996 only,
such notice must be filed by December 31, 1995). No modification shall be
effective with respect to Compensation earned prior to the date the modification
is received by the Administrator or the effective date of the new Notice of
Election, whichever is later.
(c) An election may be terminated by the filing with the Administrator of
a Notice of Termination, a form of which is attached as Exhibit B, on or before
the November 30 immediately preceding the first calendar year for which such
termination is to be effective (for 1996 only, such notice must be filed by
December 31, 1995). No termination shall be effective with respect to
Compensation earned prior to the date the Notice of Termination is received by
the Administrator or the effective date of the Notice of Termination, whichever
is later. An election shall also terminate on the date a person ceases to be
an Executive or a Director, as the case may be, effective for Compensation
earned on or after such date.
(d) A person for whom an election is terminated may thereafter file a new
Notice of Election for future calendar years for which such person is eligible
to participate in this Plan.
6. Deemed Investment of Contributions.
The Corporation may allow each Participant to elect one or more deemed
investment funds established by the Corporation in which Elective Deferrals
will be deemed to be invested. Matching Contributions and any Make-Up of
401(k) Match Contributions will be deemed to be invested, on a pro rata basis,
in the same deemed investment funds in which Elective Deferrals are deemed to
be invested.
7. Participant Accounts and Reports to Participants.
(a) The amount of any Elective Deferral and Matching Contribution, and,
with respect to an Executive Participant, any Make-Up of any 401(k) Match
Contribution, shall be credited to an Account maintained by the Corporation on
its books in the name of the Participant.
(b) The balance of the Account will be increased or decreased to reflect
income, expenses, gains, and losses deemed attributable to the Account.
(c) The Administrator shall cause the Corporation to keep an accurate
record of the amounts credited to the Account of each Participant, and as of the
end of each calendar quarter shall deliver to each Participant a written
statement of such Participant's Account.
8. Vesting.
(a) Participants are 100% vested in Elective Deferrals.
(b) Participants become vested in Matching Contributions and Make-Up of
401(k) Match Contributions made by the Company upon the earlier of:
(i) completion of five Years of Service, or
(ii) a Change in Control, as that term is defined in the
Diamond Shamrock, Inc. Excess Benefits Plan.
9. Participants are Unsecured Creditors.
(a) All rights, title and interest in the balance credited to the
Account of a Participant shall remain at all times solely as the Corporation's
unsecured contractual obligation under this Plan. Neither a Participant nor
any other person, including, without limitation, any Beneficiary shall have any
right, title or interest of any kind, by reason of this Plan, in any investment
deemed to be made on behalf of a Participant or in any specific assets of the
Corporation, the Plan, or any trust other than the Corporation's unsecured and
unfunded obligation to make the payments described in this Plan.
(b) Notwithstanding the provisions of Section 9(a) hereof, the Corporation
may transfer to the trustee of one or more trusts established for the benefit of
one or more Participants assets from which all or a portion of the benefits
provided under the Plan will be satisfied, provided that such assets held in
trust shall at all times be subject to the claims of general unsecured creditors
of the Corporation and no Participant shall at any time have a prior claim to
such assets.
10. Payment.
(a) Except in the case of the retirement, disability or death of a
Participant, a distribution of such Participant's Account balance shall
commence as of the earlier of
(i) to the extent practicable, in the sole discretion of the
Administrator, the last day a Director Participant is a
Director or an Executive Participant is an employee of
the Corporation, but not later than the last day of the
month following the date a Director Participant ceases to
be a Director or an Executive Participant ceases to be an
employee of the Corporation; or
(ii) any date specified by such Participant on the Notice of
Election for distribution of such Participant's Account
(which specified date is not after the January 1
following the calendar year in which such Participant
reaches age 70).
In the case of a distribution by reason of (i) above, such distribution
shall be in the form of a lump sum, regardless of the election of the
Participant on the Notice of Election.
(b) In the event of a Participant's retirement or disability, a
distribution of such Participant's Account balance shall commence as of the
later of
(i) to the extent practicable, in the sole discretion of the
Administrator, the last day a Director Participant is a
Director or an Executive Participant is an employee of
the Corporation, but not later than the last day of the
month following the date a Director Participant ceases to
be a Director or an Executive Participant ceases to be an
employee of the Corporation; or
(ii) any date specified by such Participant on the Notice of
Election for distribution of such Participant's Account
(which specified date is not after the January 1
following the calendar year in which such Participant
reaches age 70).
In the case of a distribution by reason of this Section 10(b), such
distribution shall be in the form elected by the Participant on the Notice of
Election.
(c) In the event of a Participant's death, the balance of the Account
shall be distributed in a lump sum to the Beneficiary designated pursuant to
Section 11 below. The lump sum payment shall be paid as of the last day of the
month following the Participant's date of death.
(d) Distributions from the Plan will be made in the form of cash except
any deemed Common Stock investments may be distributed in the form of cash or
Common Stock, as elected by the Participant. Distributions will be made to the
Participant or, in the event of such Participant's death, to the designated
Beneficiary, in accordance with the Participant's election and Section 11 below.
(e) On each date for an installment distribution, there shall be
distributed to the Participant an amount in cash equal to the sum of the cash
balance then credited to such Participant's Account multiplied by a fraction,
the numerator of which is one and the denominator of which is the number of
remaining installments. Any deemed Common Stock investment will be distributed
in a similar manner by taking into account the value of the Common Stock
investment account; provided, however, that distributions attributable to such
account may be made in the form of cash or Common Stock, as elected by the
Participant.
(f) Notwithstanding the provisions of Sections 10(a), (b), (c), (d) and
(e) hereof, the person or group designated in clause (i), (ii) or (iii), below,
as appropriate, in its absolute discretion exercised in good faith, may
accelerate the rate of distribution but only in the case of unanticipated severe
financial hardship caused by circumstances over which the Participant has no
control, and only to the extent necessary to alleviate such financial hardship.
(i) In the case of a Director Participant, an ad hoc
committee of the Board consisting of those members of the
Compensation Committee of the Board who are not Participants
in the Plan. If all the members of the Compensation Committee
participate in the Plan, such decision shall be made by the
Board; however, no member of the Board shall participate in
any such decision affecting uniquely such member as a
Participant.
(ii) In the case of an Executive Participant, the
Administrator.
(iii) Notwithstanding clause (i) or (ii), above, if one
or more trusts have been established pursuant to Section 9(b)
hereof, to the extent assets in such trust or trusts are
available therefor, the trustee of the trust.
(g) The balance of a Participant's Account shall be appropriately reduced
in accordance with this Section 10 to reflect distributions made hereunder.
(h) Any election with respect to the distribution of Compensation
deferred for a given period pursuant to this Plan shall be irrevocable.
(i) The balance of a Participant's Account may be reduced by the amount
of any indebtedness of such Participant to the Corporation at the time of
distribution. Failure to reduce any payment to a Participant will not
constitute waiver of the Corporation's claim for such indebtedness.
(j) Notwithstanding the foregoing provisions of this Section 10, the
Corporation shall make provision for the withholding of any Federal, state or
local taxes that may be required to be withheld by the Corporation in
connection with the payments due hereunder.
11. Beneficiary Designation.
A Participant may designate in writing any person or persons to whom
payments are to be made if the Participant dies before receiving payment of all
amounts due under this Plan and the proportion or proportions in which
distributions are to be made to each such person, using the Notice of
Beneficiary Designation, a form of which is attached as Exhibit C, or some
other method of designation which provides Beneficiary designation information
similar to that in such Notice of Beneficiary Designation. A Participant may
designate a Beneficiary other than a spouse only if the spouse consents in
writing as witnessed by a Plan or Corporation representative or notary public.
A Beneficiary designation will be effective only after the Notice of
Beneficiary Designation or other designation is filed with and accepted by the
Administrator while the Participant is alive and, to the extent indicated by
the Participant in the Notice of Beneficiary Designation or other designation,
will cancel all beneficiary designations signed and filed earlier by such
Participant. Any such designation may be terminated or modified from time to
time by the Participant. If and to the extent that a Participant fails to
designate a Beneficiary or if all of the Beneficiaries of the Participant die
before the death of the Participant or before complete payment of all amounts
credited to the Participant's Account under this Plan, the remaining unpaid
amounts shall be paid in one lump sum to the estate of the last to die of the
Participant or the Participant's Beneficiaries.
12. Administration of Plan.
(a) Except as provided in Section 10(f), full power and authority to
construe, interpret and administer this Plan shall be vested in the
Administrator, who may from time to time adopt any rules or regulations the
Administrator determines are necessary or appropriate. If there is no
Administrator, the power and authority of the Administrator shall rest with
Board; however, no member of the Board shall participate in any decision
affecting uniquely such member as a Participant. Decisions of the
Administrator, the ad hoc committee described in Section 10(f) and the Board
made in good faith, shall be final, conclusive and binding upon all parties.
(b) In the absence of bad faith or gross neglect of duty, neither the
Administrator nor any member of the Board of Directors shall have any liability
to the Corporation or to any other person, firm or corporation arising out of or
connected with the administration of this Plan for any decision made respecting
this Plan or its administration.
13. Amendment or Discontinuance of Plan.
At the sole discretion of the Board this Plan may be discontinued or
changed at any time. Upon such discontinuance, the vested amounts credited to
the Account of any Participant shall be distributed in satisfaction of the
obligations of the Corporation under this Plan, in the manner selected at the
option of the Board or at the option of the Administrator if so directed by the
Board, as follows:
(a) The Account balance may be distributed in a lump sum as of the date of
discontinuance in a manner consistent with Section 10 hereof. The lump sum
payment shall be made on the last day of the month following the date of
discontinuance; or
(b) The Account balance may be distributed in accordance with the Notice
of Election; or
(c) Commencing on the last day of the month following the date of
discontinuance, the Account balance may be distributed in no more than ten
annual installments, calculated in the same manner as payments under Section
10(e).
Notwithstanding the foregoing provisions of this Section 13, the Board may make
any change in this Plan that, under all the circumstances, is beneficial and
equitable to the Participants and is consistent with the spirit and purposes of
this Plan. However, no member of the Board who is a Participant in the Plan
shall participate in any such decision affecting uniquely such member as a
Participant.
The Plan is intended to provide benefits for "management or highly compensated"
employees within the meaning of Sections 201, 301 and 401 of ERISA, and
therefore to be exempt from the provisions of Parts 2, 3 and 4 of Title I of
ERISA. Accordingly, the Plan shall terminate and no further benefits shall
accrue hereunder in the event it is determined by a court of competent
jurisdiction or by an opinion of counsel to the Corporation that such balance of
the Plan constitutes an employee pension benefit plan within the meaning of
Section 3(2) of ERISA, which is not so exempt. In addition, in the absolute
discretion of the Board, the vested benefit of each Participant accrued under
such balance of the Plan on the date of termination shall be paid immediately to
such Participant in a lump sum.
14. Miscellaneous
(a) Except insofar as permitted by applicable law, no sale, transfer,
alienation, assignment, pledge, collateralization or attachment of any benefits
under the Plan shall be valid or recognized by the Corporation. The
Participant, his spouse and his designated Beneficiary shall not have any power
to hypothecate, mortgage, commute, modify or otherwise encumber in advance of
any of the benefits payable hereunder, nor shall any of said benefits be
subject to seizure for the payment of any debts, judgments, alimony,
maintenance owed by the Participant or his or her Beneficiary, or be
transferable by operation of law in the event of bankruptcy, insolvency, or
otherwise. Notwithstanding the foregoing, the Corporation may, if the
Committee so determines in its sole discretion, follow the terms of any court
order issued in connection with any domestic relations proceeding including but
not limited to marital dissolution or child support.
(b) The Plan shall be binding upon the Corporation, its assigns, and any
successor company which shall succeed to substantially all of its assets and
business through merger, acquisition or consolidation, and upon a Participant,
his Beneficiary, assigns, heirs, executors and administrators.
(c) The terms and conditions of the Plan shall not be deemed to
constitute a contract of employment between the Corporation and a Participant.
Nothing in this Plan shall of itself be deemed to give a Participant the right
to be retained in the service of the Corporation or to interfere with any right
of the Corporation to discipline or discharge the Participant at any time.
(d) A Participant shall cooperate by furnishing any and all information
reasonably requested by the Corporation, the Board or the Administrator, and
take such other actions as may be requested in order to facilitate the
administration of the Plan and the payment of benefits hereunder.
(e) In case any provision of this Plan shall be found illegal or invalid
for any reason, said illegality or invalidity shall not affect the remaining
parts hereof, but the Plan shall be construed and enforced as if such illegal
and invalid provision had never been included herein.
(f) Any notice which shall be or may be given under the Plan shall be in
writing and shall be mailed by United States mail, postage prepaid. If notice
is to be given to the Corporation (or to the Board or the Administrator), such
notice shall be addressed to the Corporation at P.O. Box 696000, San Antonio,
Texas 78269-6000, Attention: Vice President, Human Resources; if notice to a
Participant, addressed to the last known address on the Corporation's personnel
records. Any notice or filing required or permitted to be given to a
Participant under this Plan shall be sufficient if in writing and
hand-delivered, or sent by mail, to the last known address of the Participant.
Any party may, from time to time, change the address to which notices shall be
mailed by giving written notice of such new address.
(g) The interest in the benefits hereunder of a spouse of a Participant
who has predeceased the Participant shall automatically pass to the Participant
and shall not be transferable by such spouse in any manner, including but not
limited to such spouse's will, nor shall such interest pass under the laws of
intestate succession.
(h) The benefits provided for a Participant and Participant's Beneficiary
under the Plan are in addition to any other benefits available to such
Participant under any other plan or program for employees of the Corporation.
The Plan shall supplement and shall not supersede, modify or amend any other
such plan or program except as may otherwise be expressly provided herein.
(i) The payment of benefits under the Plan to a Participant or Beneficiary
shall fully and completely discharge the Corporation and the Board from all
further obligations under this Plan with respect to the portion of the benefits
so paid.
(j) If any action at law or in equity is necessary by a Participant or
Beneficiary to enforce the terms of the Plan, the Participant or Beneficiary
shall be entitled to recover reasonable attorneys' fees, costs and necessary
disbursements in addition to any other relief to which that party may be
entitled.
(k) (i) Unless the context clearly indicates otherwise, (A) masculine
pronouns shall include the feminine and singular words shall include the plural
and vice versa; (B) any reference to a section of the Code or ERISA, any
regulation promulgated under the Code or ERISA or any plan (except this Plan)
shall refer also to any successor provision to such section, and (C) any
reference to a plan shall refer also to such plan as amended from time to time.
(ii) Titles and headings of the articles and sections of the Plan are
included for ease of reference only and are not to be used for the purpose of
construing any portion or provision of the Plan document.
(l) This instrument and any notice may be executed in one or more
counterparts, each of which is legally binding and enforceable.
(m) Except to the extent other instruments are incorporated herein by
reference or there are amendments made to this Plan in the manner specified by
Article 13 hereof, this instrument constitutes the entire Plan.
15. Governing Law.
To the extent not preempted by Federal law, the provisions of this Plan
shall be interpreted and construed in accordance with the laws of the State of
Texas.
16. Effective Date.
The effective date for this Plan shall be January 1, 1996.
DIAMOND SHAMROCK, INC.
By: /s/ WILLIAM R. KLESSE
Executive Vice President
W3015.LW
<PAGE>
EXHIBIT A
NOTICE OF ELECTION
for
Diamond Shamrock, Inc. Nonqualified 401(k) Plan
1. Pursuant to the provisions of the Plan, I elect to have
compensation payable to me for services to Diamond Shamrock,
Inc. deferred in the manner specified below. I understand that
this election shall be irrevocable as to compensation earned
by me following the filing and effectiveness of this election,
except to the extent I file a subsequent Notice of Election or
Notice of Termination with the Administrator applicable to
compensation earned by me in a calendar year subsequent to
such filing.
I also understand that no modification or termination shall be
effective with respect to compensation deferred prior to the
calendar year following the date any subsequent Notice of
Election or Notice of termination is received by the
Administrator.
2. Percentage of compensation deferred (Director Participants).
Annual Cash Retainer Meeting Fees
[ ] All [ ] All
[ ] None [ ] None
___ Percent ___ Percent
3. Percentage of compensation deferred (Executive Participants).
________% of Compensation--Base Salary and Annual
Incentive Bonus (minimum amount is 1% and maximum amount
is 20%).
The percentage of Base Salary and Annual Incentive Bonus
deferred must be the same up to 6%. If you defer at
least 6% of your total compensation and wish to defer a
greater percentage of Annual Incentive Bonus than of Base
Salary, please note this percentage below:
________% of Annual Incentive Bonus (total amount,
including percent deferred above; maximum amount is 100%)
4. Deemed Investment Funds
_____% Diamond Shamrock Common Stock Fund
_____% Guaranteed Income Fund
_____% Fidelity Advisor Growth Opportunities Account
_____% Vanguard S & P Index Fund
5. Date of commencement of payments.
Except in the case of retirement, disability or death of a
Participant, distribution will be made, pursuant to Section 10(a)
of the Plan, on the earlier of:
(a) the date a Director Participant ceases to be a Director
or an Executive Participant ceases to be an employee of
the Corporation, or
(b) the commencement date specified below (select one):
___ retirement.
___ the January 1 following the calendar year in which
I reach age 70.
___ the following date (which shall in no event be
after the January 1 following the calendar year in
which I reach age 70) ____________, 19__.
In the event of a Participant's retirement or disability,
distribution will commence, pursuant to Section 10(b) of the
Plan, on the later of (a) the date a Director Participant
ceases to be a Director or an Executive Participant ceases to
be an employee of the Corporation or (b) the date selected
above.
6. Method of Payment (select one) (see Note 2 at end of Notice).
___ Lump sum, or
___ Annual installments over a period of ___ years (not over
ten).
Date____________________________ Signature___________________________
Date Notice of Election received by the Administrator:
Date____________________________ Signature___________________________
NOTES TO NOTICE OF ELECTION
1. Participants should be aware that a deferral may reduce the benefit payable
under the Diamond Shamrock, Inc. Career Average Retirement Income Plan (the
"CARIP") and the Diamond Shamrock, Inc. Employee Stock Ownership Plan I (the
"ESOP I") and the Diamond Shamrock, Inc. Employee Stock Ownership Plan II (the
"ESOP II"). Any amount deferred to a date following termination of employment
will not be taken into account for purposes of computing the CARIP, ESOP I, and
ESOP II qualified pension benefits. As a result, the CARIP, ESOP I, and ESOP II
qualified pension benefits will be less than if the deferral had been paid prior
to the Participant's termination of employment. Such "lost" benefits will be
paid pursuant to the Diamond Shamrock, Inc. Excess Benefits Plan. Amounts paid
pursuant to the Excess Benefits Plan are not adjusted for the loss of any tax
benefits which would have been realized had such benefits been paid under a
qualified plan.
2. All distributions under the Plan represent taxable income to the
Participant and may not be rolled over to an Individual Retirement Account.
<PAGE>
EXHIBIT B
NOTICE OF TERMINATION
for
Diamond Shamrock, Inc. Nonqualified 401(k) Plan
Pursuant to the provisions of the Plan, I hereby terminate my participation in
the Plan effective as of January 1, 19__.
Date______________________ Signature____________________________
Date Notice of Termination received by Administrator:
Date______________________ Signature____________________________
Administrator
<PAGE>
EXHIBIT C
NOTICE OF BENEFICIARY DESIGNATION
for
Diamond Shamrock, Inc. Nonqualified 401(k) Plan (the "Plan")
Any amounts credited to my account under the Plan unpaid at my death shall be
paid to the following beneficiary or beneficiaries, in the proportions
designated:
_____________________________ ____________% ____________________
Name Proportion Relationship
____________________________________________________________________________
Address
_____________________________ _____________% _____________________
Name Proportion Relationship
____________________________________________________________________________
Address
_____________________________ _____________% ______________________
Name Proportion Relationship
___________________________________________________________________________
Address
This designation supersedes any previous beneficiary designation made by me
with respect to the amounts credited to my account under the Plan. I hereby
reserve the right to terminate or modify any designation made by this
Instrument, at any time or from time to time.
Participant's
Date_____________________ Signature_______________________________
Witness'
Date_____________________ Signature_______________________________
A Participant may designate a Beneficiary other than a spouse only if the
spouse consents in writing as witnessed by a Plan or Corporation representative
or notary public.
Spousal Waiver
As spouse of the above named Participant, I hereby consent to the preceding
beneficiary designation. I understand that I am waiving my right to be
designated the Beneficiary under the Plan.
Spouse's
Date______________________ Signature________________________________
Witness'
Date______________________ Signature________________________________
Date Designation received by Administrator:
Administrator's
Date______________________ Signature________________________________
Note: Other methods of beneficiary designation which provide
beneficiary designation information similar to that in this
Instrument may be used instead of this Instrument.
W3015.LW
November 30, 1995
Diamond Shamrock, Inc.
9830 Colonnade Boulevard
San Antonio, Texas 78230
Re: Diamond Shamrock, Inc. Nonqualified 401(k) Plan
Gentlemen:
I am Senior Vice President/Group Executive and General Counsel for Diamond
Shamrock, Inc., a Delaware corporation (the "Company"). The Company expects to
file with the Securities and Exchange Commission on or about November 30, 1995
under the Securities Act of 1933, as amended, a Registration Statement on Form
S-8 (the "Registration Statement") for the purpose of registering 100,000 shares
of common stock, $0.01 par value of the Company ("Common Stock") (which Common
Stock will be acquired from time to time in the open market pursuant to the
terms of the Diamond Shamrock, Inc. Nonqualified 401(k) Plan (the "Plan") and
the Trust Agreement dated April 8, 1988 between the Company and Key Trust
Company of Ohio, N.A. and $3,000,000 of Deferred Compensation Obligations which
represent unsecured obligations of the Company to pay deferred compensation in
the future in accordance with the Plan terms and which may be deemed
securities.
In connection with such filing, 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 the Deferred
Compensation Obligations that may be issued in accordance with the provisions of
the Plan, when issued, will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, or other laws of general applicability
relating to or affecting enforcement of creditors' rights or by general equity
principles.
I hereby consent to the filing of this opinion as an exhibit 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 Deferred Compensation
Obligations under the Securities Act of 1933, as amended.
Very truly yours,
/s/ Timothy J. Fretthold
Timothy J. Fretthold
TJF/lmk
3008.LW
November 30, 1995
Securities and Exchange Commission
450 Fifth Street, N.W.
Washington, D.C. 20549
Ladies and Gentlemen:
We are aware that Diamond Shamrock, Inc. has included our report dated November
14, 1995 (issued pursuant to the provisions of Statement on Auditing Standards
No. 71) in the Registration Statement on Form S-8 to be filed on or about
November 30, 1995. We are also aware of our responsibilities under the
Securities Act of 1933.
Yours very truly,
/s/ PRICE WATERHOUSE LLP
Price Waterhouse LLP
LKW/hw
W3020.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
November 30, 1995
W3007.LW
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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/ R.R. HEMMINGHAUS
R.R. HEMMINGHAUS
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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
LAURO F. CAVAZOS
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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/ R.C. BECKER
R.C. BECKER
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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/ WILLIAM L. FISHER
WILLIAM L. FISHER
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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/ GARY E. JOHNSON
GARY E. JOHNSON
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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 B. CHARLES AMES
B. CHARLES AMES
Dated: November 17, 1995
<PAGE>
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, her true and lawful attorney or attorneys-in-fact, with full power of
substitution and revocation, for her and in her 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, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 she 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/ KATHERINE D. ORTEGA
KATHERINE D. ORTEGA
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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/ E. GLENN BIGGS
E. GLENN BIGGS
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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
W. E. BRADFORD
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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/ BOB MARBUT
BOB MARBUT
Dated: November 17, 1995
<PAGE>
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 a Registration Statement on Form S-8 of the
Corporation for the purpose of registering, pursuant to the Securities Act of
1933, 100,000 shares of Common Stock (and associated stock purchase rights) and
$3,000,000 of Deferred Compensation Obligations which represent unsecured
obligations of the Corporation to pay deferred compensation in the future in
accordance with the terms of the Corporation's 401(k) Nonqualified 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 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
W. H. CLARK
Dated: November 17, 1995
W3011.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 October 3, 1995, and that said resolutions are
in full force in effect.
RESOLVED that the Diamond Shamrock, Inc. Nonqualified 401(k)
Plan in the form presented to the Board of Directors of the
Corporation be, and hereby is, adopted by the Corporation.
RESOLVED that the appropriate officers of the Corporation be,
and they hereby are, authorized to execute such plan and any
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 a Registration Statement on Form S-8
for the registration under the Securities Act of 1933, as
amended (the "1933 Act"), of 100,000 shares of Common Stock
(the "Shares") of the Corporation for issuance pursuant to the
Nonqualified 401(k) Plan, and $3,000,000 of Deferred
Compensation Obligations which represent unsecured obligations
of the Corporation to pay deferred compensation in the future
in accordance with the terms of the 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 and
Deferred Compensation Obligations 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 and
the Deferred Compensation Obligations, or any number thereof,
issued pursuant to such Nonqualified 401(k) 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 and Deferred
Compensation Obligations pursuant to such Nonqualified 401(k)
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 and the
Deferred Compensation Obligations issued pursuant to the
Nonqualified 401(k) 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 Nonqualified
401(k) 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 Nonqualified 401(k) 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
Nonqualified 401(k) Plan, upon written certification and
authorization by the Chief Executive Officer, any Vice
President or the Secretary of the Corporation that Shares were
issued 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 Nonqualified
401(k) 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 27th day of November, 1995.
/s/ Jerry D. King
w3006.lw
