As filed with the Securities and Exchange Commission on June 11, 1996
AMENDMENT NO. 1 TO REGISTRATION NO. 333-4157
Post-Effective Amendment No. 2 to REGISTRATION NO. 33-59451
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
Registration Statement and Post-Effective Amendment No. 2 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 (I.R.S. Employer Identification
incorporation or organization) Number)
9830 Colonnade Boulevard
San Antonio, Texas 78230
(210) 641-6800
(Address, including zip code, and telephone number,
including area code, of Registrant's principal
executive offices)
---------------------
TIMOTHY J. FRETTHOLD, ESQ.
SENIOR VICE PRESIDENT/GROUP EXECUTIVE AND GENERAL COUNSEL
9830 COLONNADE BOULEVARD
San Antonio, Texas 78230
(210) 641-6800
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
-----------------------
Copies to:
ROBERT A. PROFUSEK, ESQ. JOHN B. TEHAN, ESQ.
JONES, DAY, REAVIS & POGUE SIMPSON THACHER & BARTLETT
599 LEXINGTON AVENUE 425 LEXINGTON AVENUE
30TH FLOOR NEW YORK, NEW YORK 10017
NEW YORK, NEW YORK 10022 (212) 455-2000
(212) 326-3800
-------------------- --------------------
Approximate date of commencement of proposed sale to the
public: From time to time after the Registration Statement
becomes effective, as determined by market conditions.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment
plans, please check the following box. [ ]
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule
415 under the Securities Act of 1933, as amended (the
"Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, please
check the following box. [x]
If this Form is filed to register additional securities for
an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act
Registration Statement number of the earlier effective
Registration Statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant
to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act Registration Statement number of the
earlier effective Registration Statement for the same offering.[ ]
If delivery of the prospectus is expected to be made
pursuant to Rule 434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
Title of Each Class Amount to Proposed Maximum Proposed Maximum Amount of
Securities to be be Offering Price Aggregate Offering Registration
Registered(1) Registered Per Share Price (4) (5) Fee
(2)(3)(4)
Debt Securities
Debt Warrants
Preferred Stock
Preferred Stock
Warrants
Common Stock(6)
Common Stock
Warrants
Total - - $100,000,000 $34,482.76(7)
(1) This Registration Statement also covers (i) Debt Securities, Common Stock,
and Preferred Stock which may be issued upon the exercise of Securities
Warrants, and (ii) such indeterminate amount of Debt Securities, Common Stock,
and/or Preferred Stock as may be issued in exchange for, or upon conversion of,
as the case may be, of the securities registered hereunder. Any of the
securities registered hereunder may be sold separately or as units with other
securities registered hereunder.
(2) Not specified as to each class of securities to be registered hereunder
pursuant to General Instruction II.D of Form S-3 under the Securities Act.
(3) The proposed maximum offering price per unit will be determined from time
to time by the Registrant in connection with, and at the time of, the issuance
by the Registrant of the securities registered hereunder.
(4) In United States Dollars or the equivalent thereof in one or more foreign
currencies or composite currencies, including European Currency units.
(5) Estimated solely for purposes of calculation of the registration fee
pursuant to Rule 457(o) of the Securities Act.
(6) Includes Preferred Stock Purchase Rights ("Rights"). The Rights are
associated with and trade with the Common Stock. See "Preferred
Stock-Preferred Stock Purchase Rights" in the prospectus contained herein. The
value, if any, attributable to the Rights is reflected in the market price of
the Common Stock.
(7) The Prospectus contained herein relates to $150,000,000 of securities
registered under Registration Statement No. 33-59451 in addition to the
$100,000,000 of securities registered hereby, which remain unsold at the date
of this Registration Statement and are being carried forward. A filing fee of
$51,724.14 was paid in connection with the registration of securities under
Registration Statement No. 33-59451.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON
SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE
DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH
SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL
THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL
BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT
TO SAID SECTION 8(a), MAY DETERMINE.
In accordance with Rule 429 under the Securities Act, the
Prospectus contained herein also relates to $150,000,000 of
unsold securities covered by Registration Statement No. 33-59451
of the Registrant.
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR
AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE
SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO
BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT
BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN
OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL
THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH
OFFER, SOLICITATION, OR SALE WOULD BE UNLAWFUL PRIOR TO
REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY
SUCH STATE.
SUBJECT TO COMPLETION, DATED June 11, 1996
PROSPECTUS
$250,000,000
DIAMOND SHAMROCK, INC.
Debt Securities Preferred Stock
Common Stock Securities Warrants
Diamond Shamrock, Inc. (the "Company") may, from time to
time, offer or solicit offers to purchase its (i) secured or
unsecured senior debt securities, (the "Debt Securities"); (ii)
warrants to purchase the Debt Securities (the "Debt Warrants");
(iii) shares of preferred stock, par value $0.01 per share (the
"Preferred Stock"); (iv) warrants to purchase shares of
Preferred Stock ("Preferred Stock Warrants"); (v) shares of
common stock, par value $0.01 per share (the "Common Stock");
and (vi) warrants to purchase shares of Common Stock ("Common
Stock Warrants"), having an aggregate initial public offering
price not to exceed $250,000,000 or the equivalent thereof in
one or more foreign currencies or composite currencies,
including European Currency Units, on terms to be determined at
the time of sale (the Debt Warrants, Preferred Stock Warrants
and Common Stock Warrants being referred to herein collectively
as the "Securities Warrants"). The Debt Securities, Preferred
Stock, Common Stock and Securities Warrants offered hereby
(collectively, the "Offered Securities") may be offered
separately or as units with other Offered Securities, in
separate series, in amounts, at prices, and on terms, to be
determined at the time of sale and to be set forth in a
supplement to this Prospectus (a "Prospectus Supplement").
The specific terms of the Offered Securities in respect of
which this Prospectus is being delivered, including, where
applicable, (i) in the case of Debt Securities, the specific
designation, aggregate principal amount, denominations,
maturity, interest rate (which may be fixed or variable) and
time of payment of interest, if any, coin or currency in which
principal, premium, if any, and interest, if any, will be
payable, any terms for redemption, exchange, or conversion, any
terms for sinking fund payments; (ii) in the case of Preferred
Stock, the specific title and stated value, number of shares,
the dividend, liquidation, exchange, redemption, conversion,
voting, and other rights, and the initial public offering price;
(iii) in the case of Common Stock, the number of shares and the
initial public offering price; (iv) in the case of Securities
Warrants, the designation and the number of securities issuable
upon their exercise, the duration, offering price, exercise
price, number and detachability thereof; and (v) in the case of
all Offered Securities, whether such Offered Securities will be
offered separately or as a unit with other Offered Securities,
will be set forth in the accompanying Prospectus Supplement.
The Prospectus Supplement will also contain information,
where applicable, concerning certain United States federal
income tax considerations relating to, and any listing on a
securities exchange of, the Offered Securities covered by the
Prospectus Supplement.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The Offered Securities may be sold directly to purchasers
or through underwriters, dealers, or agents. If any
underwriters, dealers, or agents are involved in the sale of any
Offered Securities, their names and any applicable fee,
commission, or discount arrangements will be set forth in the
Prospectus Supplement. The principal amount or number of shares
of Offered Securities, the purchase price thereof, and the net
proceeds to the Company from sales of Offered Securities will be
set forth in the Prospectus Supplement. The net proceeds to the
Company of the sale of Offered Securities will be the purchase
price of such Offered Securities less attributable issuance
expenses, including underwriters', dealers', or agents'
compensation arrangements. See "Plan of Distribution" for
indemnification arrangements for underwriters, dealers, and
agents.
This Prospectus may not be used to consummate sales of
Offered Securities unless accompanied by a Prospectus
Supplement.
The date of this Prospectus is June , 1996
NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN
AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT
DELIVERED HEREWITH AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER, OR AGENT.
THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE
AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
OFFERED SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH THE
OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON
MAKING THE OFFER OR SOLICITATION IS NOT AUTHORIZED TO DO SO OR
TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR
SOLICITATION.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and, in accordance therewith, files reports, proxy
statements, and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy
statements, and other information filed by the Company can be
inspected and copied at the Public Reference Room of the
Commission at Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the public reference facilities
maintained by the Commission at Seven World Trade Center, Suite
1300, New York, New York 10048 and Citicorp Center, 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies
of such materials can be obtained at prescribed rates from the
Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Documents filed by the Company can
also be inspected at the offices of the New York Stock Exchange,
20 Broad Street, New York, New York 10005, on which exchange
certain of the Company's securities are listed.
This Prospectus constitutes a part of a Registration
Statement filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"),
relating to the securities offered hereby. This Prospectus omits
certain of the information contained in the Registration
Statement, and reference is hereby made to the Registration
Statement and to the exhibits relating thereto for further information
with respect to the Company and the securities offered hereby. Any statements
contained herein concerning the provisions of any document are
not necessarily complete, and in each instance reference is made
to the copy of such document filed as an exhibit to the
Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such
reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company hereby incorporates into this Prospectus by
reference the Company's (i) Annual Report on Form 10-K for the
year ended December 31, 1995 (the "1995 Form 10-K"), filed
pursuant to the Exchange Act, which contains the consolidated
financial statements of the Company and the report thereon of
Price Waterhouse LLP, (ii) Quarterly Report on Form 10-Q for the
quarter ended March 31, 1996, and (iii) Current Report on Form
8-K/A, dated December 14, 1995 filed with the Commission on
February 14, 1996.
All documents subsequently filed by the Company pursuant to
Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to
the termination of the offering made hereby, shall be deemed
incorporated by reference in this Prospectus and to be a part of
this Prospectus from the date of the filing of such reports.
Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein or in any subsequently
filed document which also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this
Prospectus.
Any person receiving a copy of this Prospectus may obtain,
without charge, upon written or oral request, a copy of any of
the documents incorporated by reference herein, except for the
exhibits to such documents (other than the exhibits expressly
incorporated in such documents by reference). Requests should be
directed to: Investor Relations, Diamond Shamrock, Inc., P.O.
Box 696000, San Antonio, Texas 78269-6000 (telephone 210-641-6800).
THE COMPANY
Diamond Shamrock, Inc. is the leading independent refiner
and marketer of petroleum products in the southwestern United
States, and the largest convenience store operator and retail
marketer of gasoline in the state of Texas. Its principal
activities consist of crude oil refining, wholesale marketing of
petroleum products, and retail marketing of petroleum products
and merchandise through Company-operated retail outlets. In
addition, the Company processes petrochemicals and is engaged in
the marketing, distribution, and storage of natural gas liquids.
The Company's principal executive offices are located at
9830 Colonnade Boulevard, San Antonio, Texas 78230 (in person);
P.O. Box 696000, San Antonio, Texas 78269-6000 (by mail). Its
telephone number is 210-641-6800.
EARNINGS RATIOS
The following table sets forth the ratio of earnings to
fixed charges and the ratio of earnings to combined fixed
charges and preferred stock dividends for the three-month
periods ended March 31, 1996 and 1995 and for each of the years
in the five-year period ended December 31, 1995. For purposes
of computing such ratios, earnings consist of income before
income taxes and fixed charges, and fixed charges consist of
interest on outstanding debt, amortization of debt issuance
expense, and one-third of rental payments on operating leases
(such amount having been deemed by the Company to represent the
interest portion of such payments).
Three Months
Ended
March 31 Year Ended December 31,
1996 1995 1995 1994 1993 1992 1991
Ratio of Earnings to
Fixed Charges 1.5 1.5 2.0 3.2 2.0 1.7 2.1
Ratio of Earnings to
Combined Fixed Charges
and Preferred Stock
Dividends 1.4 1.4 1.9 2.9 1.8 1.7 2.1
USE OF PROCEEDS
The Offered Securities may be offered by the Company from
time to time when market conditions are determined by the
Company to be favorable. Unless otherwise indicated in the
applicable Prospectus Supplement, the net proceeds from the sale
of the Offered Securities will be added to the Company's funds
and used for general corporate purposes.
DESCRIPTION OF DEBT SECURITIES
The following description of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to
which any Prospectus Supplement may relate. The particular terms
of the Debt Securities offered by any Prospectus Supplement (the
"Offered Debt Securities") and the extent, if any, to which such
general provisions do not apply to the Offered Debt Securities
will be described in the Prospectus Supplement relating to such
Offered Debt Securities.
The Debt Securities to which this Prospectus relates will
be issued under an Indenture dated as of December 15, 1989 (the
"Indenture"), between the Company and The First National Bank of
Chicago, as trustee (the "Trustee"), which is filed as an
exhibit to the Registration Statement. The following summaries
of certain provisions of the Indenture do not purport to be
complete and are subject to, and are qualified in their entirety
by reference to, all the provisions of the Indenture, including
the definitions therein of certain terms. Numerical references
in parentheses below are to sections in the Indenture. Whenever
particular sections or defined terms of the Indenture are
referred to, such sections or defined terms are incorporated
herein by reference.
General
The Indenture does not limit the amount of Debt Securities
which may be issued thereunder and provides that Debt Securities
may be issued thereunder from time to time in one or more series
up to the aggregate principal amount which may be authorized
from time to time by the Company. All Debt Securities will be
unsecured and will rank pari passu with all other unsecured
unsubordinated indebtedness of the Company. The Company is
primarily a holding company and the Debt Securities will not be
guaranteed by any of the Company's Subsidiaries. As a result,
the right of creditors of the Company upon its liquidation,
reorganization, or otherwise is necessarily subject to the
claims of creditors of the Company's Subsidiaries, except to the
extent that claims of the Company itself as a creditor of any of
its Subsidiaries may be recognized. Except as described below, the Indenture
does not limit the amount of other indebtedness or securities which may be
issued by the Company.
Reference is made to the Prospectus Supplement relating to
the particular series of Offered Debt Securities offered thereby
for the following terms of such series of Offered Debt
Securities: (i) the designation, aggregate principal amount, and
authorized denominations of such Offered Debt Securities; (ii)
the purchase price of such Offered Debt Securities (expressed as
a percentage of the principal amount thereof); (iii) the date or
dates on which such Offered Debt Securities will mature; (iv)
the rate or rates per annum, if any (which may be fixed or
variable), at which such Offered Debt Securities will bear
interest or the method by which such rate or rates will be
determined; (v) the dates on which such interest will be payable
and the record dates for payment of interest, if any; (vi) the
coin or currency in which payment of the principal of (and
premium, if any) or interest, if any, on such Offered Debt
Securities will be payable; (vii) the terms of any mandatory or
optional redemption (including any sinking fund) or any
obligation of the Company to repurchase Offered Debt Securities;
(viii) whether such Offered Debt Securities are to be issued in
whole or in part in the form of one or more temporary or
permanent global Debt Securities ("Global Securities") and, if
so, the identity of the depositary, if any, for such Global
Security or Securities; and (ix) any other additional provisions
or specific terms which may be applicable to that series of
Offered Debt Securities.
Principal, premium, if any, and interest, if any, will be
payable, and the Debt Securities will be transferable or
exchangeable, at the office or agency of the Company maintained
for such purposes in the Borough of Manhattan, The City of New
York, provided that payment of interest on any Debt Securities
may, at the option of the Company, be made by check mailed to
the registered holders. Interest, if any, will be payable on
any Interest Payment Date to the persons in whose names the Debt
Securities are registered at the close of business on the record
date with respect to such Interest Payment Date (Sections 305,
307 and 1202).
Unless otherwise indicated in the Prospectus Supplement
relating thereto, the Debt Securities will be issued only in
fully registered form, without coupons, in denominations of
$1,000 or any integral multiple thereof. No service charge will
be made for any registration of transfer or exchange of the Debt
Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable
in connection therewith (Sections 302 and 305).
Some or all of the Debt Securities may be issued as
discounted Debt Securities (bearing no interest or interest at
a rate which at the time of issuance is below market rates) to
be sold at a substantial discount below their stated principal
amount. Federal income tax consequences and other special
considerations applicable to any such discounted Debt Securities
will be described in the Prospectus Supplement relating thereto.
The Indenture does not contain provisions permitting the
holders of the Debt Securities to require prepayment in the
event of a change in the management or control of the Company,
or in the event the Company enters into one or more highly
leveraged transactions, nor are any such events deemed to be
events of default under the terms of the Indenture. Should the
terms of any note representing any Offered Debt Securities
contain such provisions, such provisions will be described in
the applicable Prospectus Supplement.
Global Securities
The Debt Securities of a series may be issued in whole or
in part in the form of one or more Global Securities that will
be deposited with or on behalf of a depositary located in the
United States (a "Depositary") identified in the Prospectus
Supplement relating to such series.
The specific terms of the depositary arrangements with
respect to any Debt Securities of a series will be described in
the Prospectus Supplement relating to such series. The Company
anticipates that the following provisions will apply to all
depositary arrangements.
Unless otherwise specified in an applicable Prospectus
Supplement, Debt Securities which are to be represented by a
Global Security to be deposited with or on behalf of a
Depositary will be represented by a Global Security registered
in the name of such depositary or its nominee. Upon the issuance
of a Global Security in registered form, the Depositary for such
Global Security will credit, on its book-entry registration and
transfer system, the respective principal amounts of the Debt
Securities represented by such Global Security to the accounts
of institutions that have accounts with such Depositary or its
nominee ("participants"). The accounts to be credited shall be
designated by the underwriters or agents of such Debt Securities
or by the Company, if such Debt Securities are offered and sold
directly by the Company. Ownership of beneficial interests in
such Global Securities will be limited to participants or
persons that may hold interests through participants. Ownership
of beneficial interests by participants in such Global
Securities will be shown on, and the transfer of that ownership
interest will be effected only through, records maintained by
the Depositary or its nominee for such Global Security.
Ownership of beneficial interests in Global Securities by
persons that hold through participants will be shown on, and the
transfer of that ownership interest within such participant will
be effected only through, records maintained by such
participant. The laws of some jurisdictions require that
certain purchasers of securities take physical delivery of such
securities in definitive form. Such limits and such laws may impair the
ability to transfer beneficial interests in a Global Security.
So long as the Depositary for a Global Security in
registered form, or its nominee, is the registered owner of such
Global Security, such Depositary or such nominee, as the case
may be, will be considered the sole owner or holder of the Debt
Securities represented by such Global Security for all purposes
under the Indenture governing such Debt Securities. Except as
set forth below, owners of beneficial interests in such Global
Security will not be entitled to have Debt Securities of the
series represented by such Global Security registered in their
names, will not receive or be entitled to receive physical
delivery of Debt Securities of such series in definitive form,
and will not be considered the owners or holders thereof under
the Indenture.
Payment of principal of, premium, if any, and any interest
on Debt Securities registered in the name of or held by a
Depositary or its nominee will be made to the Depositary or its
nominee, as the case may be, as the registered owner or the
holder of the Global Security representing such Debt Securities.
None of the Company, the Trustee, any Paying Agent, or the
Security Registrar for such Debt Securities will have any responsibility or
liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in a Global
Security for such Debt Securities or for maintaining,
supervising, or reviewing any records relating to such
beneficial ownership interests.
The Company expects that the Depositary for Debt Securities
of a series, upon receipt of any payment of principal, premium,
or interest in respect of a permanent Global Security, will
credit immediately participants' accounts with payments in
amounts proportionate to their respective beneficial interests
in the principal amount of such Global Security as shown on the
records of the Depositary. The Company also expects that
payments by participants to owners of beneficial interests in
such Global Security held through such participants will be
governed by standing instructions and customary practices, as is
now the case with securities held for the accounts of customers in bearer
form or registered in "street name," and will be the
responsibility of such participants. However, the Company has no
control over the practices of the Depositary and/or the
participants and there can be no assurance that these practices
will not be changed.
A Global Security may not be transferred except as a whole
by the Depositary for such Global Security to a nominee of such
Depositary or by a nominee of such Depositary to such Depositary
or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee
of such successor (Section 304). If a Depositary for Debt
Securities of a series is at any time unwilling or unable to
continue as depositary and a successor depositary is not
appointed by the Company within 90 days, the Company will issue
Debt Securities in definitive registered form in exchange for
the Global Security or Securities representing such Debt
Securities. In addition, the Company may at any time and in its
sole discretion determine not to have any Debt Securities in
registered form represented by one or more Global Securities
and, in such event, will issue Debt Securities in definitive
form in exchange for the Global Security or Securities
representing such Debt Securities. In any such instance, an
owner of a beneficial interest in a Global Security will be
entitled to physical delivery in definitive form of Debt
Securities of the series represented by such Global Security
equal in principal amount to such beneficial interest and to
have such Debt Securities registered in its name.
Limitations on the Company and Certain Subsidiaries
Limitations on Mortgages. The Indenture provides that
neither the Company nor any Subsidiary of the Company will
issue, assume, or guarantee any notes, bonds, debentures, or
other similar evidences of indebtedness for money borrowed
("Debt") secured by any mortgages, liens, pledges, or other
encumbrances ("Mortgages") upon any asset or any interest it may
have therein or of or upon any stock or indebtedness of any Subsidiary, whether
now owned or hereafter acquired, without effectively providing that all
Debt Securities issued under the Indenture (together with, if
the Company so determines, any other indebtedness or obligation
then existing or thereafter created ranking equally with the
Debt Securities) will be secured equally and ratably with (or
prior to) such Debt so long as such Debt will be so secured, except that
this restriction will not apply to: (i) Mortgages securing the
purchase price or cost of construction of property (or
additions, substantial repairs, alterations, or substantial
improvements thereto if the amount of such Debt does not exceed
the cost thereof), provided such Debt and the Mortgages are
incurred within 18 months of the acquisition or completion of
construction and full operation, or the completion of such
repairs, alterations, or improvements, as the case may be; (ii)
Mortgages existing on property at the time of its acquisition by
the Company or a Subsidiary or on the property of a corporation
at the time of the acquisition of such corporation by the Company or a
Subsidiary (including acquisitions through merger or consolidation); (iii)
Mortgages to secure Debt on which the interest payments are
exempt from federal income tax under Section 103 of the Internal
Revenue Code of 1986, as amended (the "Code"); (iv) in the case
of a Subsidiary, Mortgages in favor of the Company or a
Subsidiary; (v) Mortgages existing on the date of the Indenture; (vi) certain
Mortgages incurred in the ordinary course of business and
Mortgages to governmental entities; (vii) Mortgages incurred in
connection with the borrowing of funds if within 120 days such
funds are used to repay Debt in the same principal amount
secured by other Mortgages on assets or receivables having a
fair market value (as determined by the chief financial officer
of the Company) at least equal to the fair market value of the
assets or receivables which secure the new Mortgage; (viii)
Mortgages incurred within 90 days (or any longer period, not in
excess of one year, as permitted by law) after acquisition of
the property or equipment subject to such Mortgage arising
solely in connection with the transfer of tax benefits in
accordance with Section 168(f)(8) of the Code (or any similar
provision adopted hereafter); (ix) Mortgages on accounts
receivable of the Company or its Subsidiaries which secure
obligations not exceeding at any time the lesser of 90% of
Consolidated Receivables (as defined below) or $100,000,000,
provided that the dollar limitation of $100,000,000 will
increase at a compounded rate of 10% each April 1, with the first such
increase effective on April 1, 1990 and subsequent increases to
be effective on and as of each succeeding April 1, provided
further, however, that in no event will such dollar limitation
exceed $300,000,000; and (x) any extension, renewal, or
replacement of any Mortgage referred to in the foregoing clauses
(i) through (ix), provided the dollar amount secured is not
increased (Section 1205).
Limitations on Sale and Lease-Back Transactions. The
Indenture provides that neither the Company nor any Subsidiary
will enter into any Sale and Lease-Back Transaction with respect
to any asset owned by it with any person (other than the Company
or a Subsidiary) unless either (i) the Company or such
Subsidiary would be entitled, pursuant to the provisions
described in clauses (i) through (x) under "Limitations on
Mortgages" above, to incur Debt secured by a Mortgage on the
asset to be leased without equally and ratably securing the Debt
Securities, or (ii) the Company during or immediately after the
expiration of 120 days after the effective date of such
transaction applies to the voluntary retirement of its Funded
Debt an amount equal to the greater of the net proceeds of the
sale of the property leased in such transaction or the fair
market value (as determined by the chief financial officer of
the Company) of the leased property at the time such transaction
was entered into, in each case net of the principal amount of
all Debt Securities delivered under the Indenture (Section
1206).
Exempted Transactions. Notwithstanding the foregoing, the
Company and any one or more Subsidiaries may, without securing
the Debt Securities, issue, assume, or guarantee Debt secured by
Mortgages and enter into Sale and Lease-Back Transactions which
would otherwise be subject to the foregoing restrictions in an
aggregate principal amount which, together with all other such
Debt of the Company and its Subsidiaries secured by Mortgages
(not including Debt permitted to be secured pursuant to clauses
(i) through (x) under "Limitations on Mortgages" above) and the
aggregate Attributable Debt (as defined below) in respect of
Sale and Lease-Back Transactions (not including those permitted
as described under "Limitations on Sale and Lease-Back
Transactions" above), does not exceed 15% of Consolidated Net
Tangible Assets (as defined below) of the Company and its
consolidated Subsidiaries (Section 1207).
Certain Definitions. The term "Consolidated Net Tangible
Assets" at any date means the total assets shown on a
consolidated balance sheet of the Company and its Subsidiaries,
prepared in accordance with generally accepted accounting
principles, less (i) all current liabilities, and (ii) goodwill
and like intangibles included on such balance sheet. The term
"Attributable Debt" means (a) as to any capitalized lease obligations, the Debt
carried on the balance sheet in accordance with generally accepted
accounting principles, and (b) as to any operating leases, the
total net amount of rent required to be paid under such leases
during the remaining term thereof discounted at the rate of 1%
per annum over the weighted average yield to maturity of all
Debt Securities issued and outstanding under the Indenture,
including any outstanding Debt Securities, compounded
semi-annually. The term "Consolidated Receivables" at any date
means the aggregate amount of all accounts receivable of the
Company and its Subsidiaries at the end of the most recent
fiscal quarter, as shown on the consolidated balance sheet of
the Company and its Subsidiaries in respect of such quarter, or
in respect of the fiscal year in the case of the fourth quarter
(Section 101).
Events of Default
The following are "Events of Default" under the Indenture
with respect to Debt Securities of any series: (i) failure to
pay principal of or any premium on any Debt Security of that
series when due; (ii) failure to pay any interest on any Debt
Security of that series when due, and the continuation of such
failure for 30 days; (iii) failure to deposit any sinking fund
payment in respect of any Debt Security of that series when due;
(iv) failure to perform any other covenant of the Company in the
Indenture (other than a covenant included in the Indenture
solely for the benefit of a series of Debt Securities other than
the series), continued for 60 days after written notice as
provided in the Indenture; (v) certain events in bankruptcy,
insolvency, or reorganization; (vi) indebtedness for borrowed money of the
Company or any Subsidiary in excess of $10,000,000 (whether such indebtedness
now exists or is hereafter created) is not paid at final maturity or
becomes or is declared due and payable prior to the date or
dates on which such indebtedness would otherwise have become due
and payable as a result of the occurrence of one or more events
of default as defined in any mortgages, indentures, or
instruments under which such indebtedness may have been issued
or by which such indebtedness may have been secured, and such
failure to pay shall not be cured or such acceleration or
accelerations, as the case may be, shall not be rescinded,
annulled, or cured, in any case prior to the expiration of 30
days after the date such failure to pay or acceleration or
accelerations occurred; and (vii) any other Event of Default
provided with respect to Debt Securities of that series (Section
501). If any Event of Default with respect to Debt Securities
of any series at any time outstanding occurs and is continuing,
either the Trustee or the Holders of at least 25% in aggregate
principal amount of the outstanding Debt Securities of that
series may declare the principal amount (or, if the Debt
Securities of that series are Discount Securities, such portion
of the principal amount as may be specified in the terms of that
series) of all the Debt Securities of that series to be due and
payable immediately. At any time after a declaration of
acceleration with respect to Debt Securities of any series has
been made, but before a judgment or decree based on acceleration
has been obtained, the Holders of a majority in aggregate
principal amount of outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such
acceleration (Section 502).
The Indenture provides that, subject to the duty of the
Trustee during the continuance of an Event of Default to act
with the required standard of care, the Trustee will be under no
obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders,
unless such Holders have offered to the Trustee reasonable indemnity
(Section 603). Subject to such provisions for the
indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of
any series will have the right to direct the time, method, and
place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Debt Securities of that series (Section 512).
The Company is required to furnish the Trustee annually
with a statement as to the performance by the Company of certain
of its obligations under the Indenture and as to any default in
such performance (Section 1208).
Modification and Waiver
Modifications of and amendments to the Indenture may be
made by the Company and the Trustee with the consent of the
Holders of not less than two-thirds in aggregate principal
amount of the outstanding Debt Securities of each series
affected by such modification or amendment; provided, however,
that no such modification or amendment may, without the consent
of the Holder of each outstanding Debt Security affected
thereby, (i) change the Stated Maturity of the principal of, or
any installment of interest, if any, on, any Debt Security, (ii)
reduce the principal amount of, or any premium or interest on,
any Debt Security, (iii) reduce the amount of principal of
Discount Securities payable upon acceleration of the stated
maturity thereof, (iv) change the currency of payment of
principal of, or any premium or interest on, any Debt Security,
(v) impair the right to institute suit for the enforcement of
any payment on or with respect to any Debt Security, or (vi)
reduce the percentage in principal amount of outstanding Debt
Securities of any series, the consent of whose Holders is
required for modification or amendment of the Indenture or for
waiver of compliance with certain provisions of the Indenture or
for waiver of certain defaults (Section 1102).
The Holders of a majority in aggregate principal amount of
the outstanding Debt Securities of each series may, on behalf of
all Holders of Debt Securities of that series, waive any past
default under the Indenture with respect to Debt Securities of
that series, except a default in the payment of principal or any
premium or interest or a covenant or provision that cannot be
modified or amended without the consent of the Holders of each
outstanding Debt Security affected thereby (Section 513).
Consolidation, Merger, Sale, or Lease of Assets
The Company, without the consent of the Holders of any of
the outstanding Debt Securities under the Indenture, may
consolidate with or merge into, or transfer or lease its assets
substantially as an entirety to, any corporation organized under
laws of any domestic jurisdiction, provided that the successor
corporation assumes the Company's obligations on the Debt
Securities and that under the Indenture, after giving effect to the
transactions, no Event of Default, and no event which, after notice or lapse of
time, would become an Event of Default, shall have occurred and
be continuing, and that certain other conditions are met
(Section 1001).
Defeasance
The Indenture provides that the Company, at its option, (i)
will be discharged from any and all obligations in respect of
any series of Debt Securities (except for certain obligations to
register the transfer or exchange of the Debt Securities;
replace stolen, lost, or mutilated Debt Securities; maintain
paying agencies; and hold money for payment in trust), or (ii)
will not be subject to provisions of the Indenture concerning
limitations upon Mortgages; Sale and Lease-Back Transactions;
and consolidation, merger, and sale of assets, in each case if
the Company deposits with the Trustee, in trust, money or U.S.
Government Obligations which through the payment of interest
thereon and principal thereof in accordance with their terms
will provide money in an amount sufficient to pay all principal,
premium, if any, and interest on the Debt Securities of such
series on the dates such payments are due in accordance with the
terms of such Debt Securities. To exercise any such option, the
Company is required, among other things, to deliver an opinion
of counsel to the Trustee to the effect that (a) the Company has
received from or there has been published by the Internal
Revenue Service a ruling to the effect that the deposit and
related defeasance would not cause the Holders of such series of
Debt Securities to recognize income, gain, or loss for United
States federal income tax purposes and (b) if such series of
Debt Securities are then listed on any national securities
exchange, such Debt Securities would not be delisted from such
exchange as a result of the exercise of such option (Article
Fifteen).
Notices
Notices to Holders will be given by mail to the addresses
of such Holders as they appear in the Security Register
(Sections 101, 105).
Governing Law
The Indenture and the Debt Securities will be governed by,
and construed in accordance with, the laws of the State of New
York (Section 111).
Concerning the Trustee
The Trustee has normal banking relationships with the
Company.
DESCRIPTION OF CAPITAL STOCK
The following description of the Company's capital stock is
subject to the detailed provisions of the Company's Certificate
of Incorporation (the "Certificate"). These statements do not
purport to be complete and are qualified in their entity by
reference to the terms of the Certificate, a copy of which has
been filed as an exhibit to the Registration Statement of which
this Prospectus is a part.
Under the Certificate, the Company has the authority to
issue 25,000,000 shares of Preferred Stock, $.01 par value, and
75,000,000 shares of Common Stock, $.01 par value. As of May
31, 1996, 1,725,000 shares of the Company's 5% Cumulative
Convertible Preferred Stock and 29,290,718 shares of Common
Stock were issued, and no shares of Common Stock were held in
treasury. The outstanding shares of Common Stock and Preferred
Stock are fully paid and nonassessable. As of such date,
1,336,029 shares of Common Stock were reserved for issuance
pursuant to the Company's 1987 and 1990 Long-Term Incentive
Plans, and 750,000 shares of the Company's Series A Junior
Participating Preferred Stock, $.01 par value, were reserved for
issuance pursuant to the Rights Agreement (the "Rights
Agreement"), dated March 6, 1990, between the Company and
Society National Bank, as Rights Agent. See "-Preferred Stock
- -- Preferred Stock Purchase Rights." An additional 3,254,716
shares of Common Stock are reserved for issuance upon
conversion of the Company's outstanding 5% Cumulative
Convertible Preferred Stock. See "5% Cumulative Convertible
Preferred Stock."
Preferred Stock
The following description of the terms of the Preferred
Stock sets forth certain general terms and provisions of the
Preferred Stock to which a Prospectus Supplement may relate.
Specific terms of any series of Preferred Stock offered by a
Prospectus Supplement will be described in the Prospectus
Supplement relating to such series of Preferred Stock. The
description set forth below is subject to and qualified in its
entirety by reference to the Certificate and the form of
Certificate of Designations (the "Designation") establishing a
particular series of Preferred Stock which will be filed with
the Commission in connection with the offering of such series of
Preferred Stock.
General. Under the Certificate, the Board of Directors of
the Company (the "Board of Directors") is authorized, without
further shareholder action, to provide for the issuance of up to
25,000,000 shares of Preferred Stock, in one or more series, and
to fix the designations, terms, and relative rights and
preferences, including the dividend rate, voting rights,
conversion rights, redemption and sinking fund provisions and
liquidation values of each such series. The Company may amend
the Certificate from time to time to increase the number of
authorized shares of Preferred Stock. Any such amendment would
require the approval of the holders of a majority of the
outstanding shares of all series of Preferred Stock voting
together as a single class without regard to series. As of the
date of this Prospectus, the Company has one series of Preferred
Stock outstanding.
The Preferred Stock will have the dividend, liquidation,
redemption, conversion, and voting rights set forth below unless
otherwise provided in the Prospectus Supplement relating to a
particular series of Preferred Stock. Reference is made to the
Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including,
(i) the title and liquidation preference per share of such
Preferred Stock and the number of shares offered; (ii) the price
at which such Preferred Stock will be issued; (iii) the dividend
rate (or method of calculation), the dates on which dividends
shall be payable and the dates from which dividends shall
commence to accumulate; (iv) any redemption or sinking fund
provisions of such Preferred Stock; (v) any conversion or
exchange provisions of such Preferred Stock; (vi) the voting
rights, if any, of such Preferred Stock; and (vii) any
additional dividend, liquidation, redemption, sinking fund and
other rights, preferences, privileges, limitations, and
restrictions of such Preferred Stock. The Preferred Stock will,
when issued, be fully paid and nonassessable.
Dividend Rights. The Preferred Stock will be preferred
over the Common Stock as to payment of dividends. Before any
dividends or distributions on the Common Stock shall be declared
and set apart for payment or paid, the holders or shares of each
series of Preferred Stock shall be entitled to receive dividends
(either in cash, shares of Common Stock or Preferred Stock, or
otherwise) when, as, and if declared by the Board of Directors,
at the rate and on the date or dates as set forth in the
Prospectus Supplement. With respect to each series of Preferred
Stock, the dividends on each share of such series with respect
to which dividends are cumulative shall be cumulative from the
date of issue of such share unless some other date is set forth
in the Prospectus Supplement relating to any such series.
Accruals of dividends shall not bear interest.
Rights Upon Liquidation. The Preferred Stock shall be
preferred over the Common Stock as to assets so that the holders
of each series of Preferred Stock shall be entitled to be paid,
upon the voluntary or involuntary liquidation, dissolution, or
winding up of the Company, and before any distribution is made
to the holders of Common Stock, the amount set forth in the
Prospectus Supplement relating to any such series, but in such
case the holders of such series of Preferred Stock shall not be
entitled to any other or further payment. If upon any such
liquidation, dissolution, or winding up of the Company its net
assets shall be insufficient to permit the payment in full of
the respective amounts to which the holders of all outstanding
Preferred Stock are entitled, the entire remaining net assets
of the Company shall be distributed among the holders of each
series of Preferred Stock in amounts proportionate to the full
amounts to which the holders of each such series are
respectively so entitled.
Redemption and Conversion. All shares of any series of
Preferred Stock shall be redeemable to the extent set forth in
the Prospectus Supplement relating to any such series. All
shares of any series of Preferred Stock shall be convertible
into shares of Common Stock or into shares of any other series
of Preferred Stock to the extent set forth in the Prospectus
Supplement relating to any such series.
Voting Rights. All shares of any series of Preferred Stock
shall have the voting rights set forth in the prospectus
supplement relating to any such series.
5% Cumulative Convertible Preferred Stock. In June 1993,
the Company issued 1,725,000 shares of 5% Cumulative Convertible
Preferred Stock, $.01 par value per share (the "5% Preferred
Stock"). Each share of 5% Preferred Stock has a liquidation
preference of $50.00 per share, plus accrued and unpaid
dividends thereon. Cash dividends on the 5% Preferred Stock are
cumulative from the date of original issue at an annual rate of
$2.50 per share and are payable quarterly in arrears. Shares of
5% Preferred Stock are convertible at any time at the option of
the holder into shares of Common Stock of the Company at a
conversion price of $26.50 per share of Common Stock, which is
equivalent to a conversion rate of approximately 1.8868 shares
of Common Stock for each share of 5% Preferred Stock, subject to
adjustment in certain circumstances.
The shares of 5% Preferred Stock are not redeemable prior
to June 15, 1996. On and after such date and from time to time
until June 14, 2000, the 5% Preferred Stock will be redeemable,
in whole or in part, at the option of the Company, for such
number of shares of Common Stock as are issuable at the
conversion price for each share of 5% Preferred Stock. The
Company may exercise this option only if, for 20 trading days
within any period of 30 consecutive trading days, including the
last trading day of such 30 trading-day period, the closing
price of the Company's Common Stock on the New York Stock
Exchange exceeds $34.45, subject to adjustment in certain
circumstances. On and after June 15, 2000, the 5% Preferred
Stock will be redeemable for cash at a redemption price
equivalent to $50 per share, plus accrued and unpaid dividends.
Shares of 5% Preferred Stock are not be entitled to the benefit
of any sinking fund.
Preferred Stock Purchase Rights. 750,000 shares of Series
A Junior Participating Preferred Stock, $.01 par value ("Junior
Preferred Stock"), are reserved for issuance pursuant to the
Rights Agreement. Pursuant to the Rights Agreement, one right
(a "Right") to purchase 1/100th of a share of Junior Preferred
Stock (structured so as to be substantially the equivalent of
Common Stock) is attached to each issued and outstanding share
of Common Stock. The Rights are not exercisable and are
attached to, and may not trade separately from, the Common Stock
unless certain change of control events occur.
Common Stock
The holders of the Company's Common Stock are entitled to
one vote per share on all matters voted on by the stockholders,
including elections of directors, and, except as otherwise
required by law or provided in any resolution adopted by the
Board of Directors of the Company with respect to any series of
Preferred Stock, the holders of such shares will exclusively
possess all voting power. Subject to any preferential rights of
any outstanding series of Preferred Stock, the holders of Common
Stock are entitled to such dividends as may be declared from
time to time by the Board of Directors from funds available
therefor, and upon liquidation are entitled to receive pro rata
all assets of the Company available for distribution to such
holders. No holder of Common Stock has any preemptive right to subscribe to
any securities of the Company of any kind or class. The Company's
Common Stock is listed on the New York Stock Exchange and prices
are reported by the New York Stock Exchange Composite Tape under
the symbol DRM. The Transfer Agent and Registrar of the
Company's Common Stock is KeyCorp Shareholder Services, Inc.,
Cleveland, Ohio.
Certain Provisions of the Certificate and By-laws
The Certificate and By-laws of the Company contain certain
provisions which may have the effect of delaying, deferring, or
preventing a change of control of the Company. The Certificate
provides that the Board shall be divided into three classes,
with directors serving three-year terms, and limits the ability
of stockholders to change the number of directors. Special
meetings of the Company's stockholders may only be called by the
Board of Directors or the Chairman of the Board, and any action
required or permitted to be taken by the stockholders of the
Company must be effected at an annual or special meeting of
stockholders of the Company and may not be effected by any
consent in writing of such stockholders. In addition, the Board
has generally the authority, without further action by
stockholders, to fix the relative powers, preferences, and
rights of the unissued shares of Preferred Stock. Provisions
which could discourage an unsolicited tender offer or takeover
proposal, such as extraordinary voting, dividend, redemption, or
conversion rights, could be included in such Preferred Stock.
See "Preferred Stock."
Under the Certificate, holders of Common Stock are entitled
to cumulative voting rights in certain limited circumstances in
which the Company becomes aware that a stockholder of the
Company (other than the Company or a subsidiary of the Company)
has become the beneficial owner, directly or indirectly, of 30%
or more of the outstanding capital stock of the Company entitled
to vote generally in the election of Company directors. Holders
of Common Stock are not otherwise entitled to cumulative voting
rights. Under cumulative voting, a stockholder may multiply the
number of shares owned by the number of directors to be elected,
and cast that total number of votes in any proportion among as
many nominees as the stockholder desires.
The By-laws of the Company contain certain requirements
concerning advance notice of (i) nominations by stockholders of
persons for election to the Board, and (ii) other matters
introduced by stockholders at annual meetings.
DESCRIPTION OF SECURITIES WARRANTS
The Company may issue Securities Warrants for the purchase
of Debt Securities, Preferred Stock or Common Stock. Securities
Warrants may be issued independently or together with Debt
Securities, Preferred Stock or Common Stock offered by any
Prospectus Supplement and may be attached to or separate from
any such Offered Securities. Each series of Securities Warrants
will be issued under a separate warrant agreement (a "Securities
Warrant Agreement") to be entered into between the Company and
a bank or trust company, as warrant agent (the "Securities
Warrant Agent"), all as set forth in the Prospectus Supplement
relating to the particular issue of Securities Warrants. The
Securities Warrant Agent will act solely as an agent of the
Company in connection with the Securities Warrants and will not
assume any obligation or relationship of agency or trust for or
with any holders of Securities Warrants or beneficial owners of
Securities Warrants. The following summary of certain
provisions of the Securities Warrants does not purport to be
complete and is subject to, and is qualified in its entirety by reference to,
all provisions of the Securities Warrant Agreements.
Reference is made to the Prospectus Supplement relating to
the particular issue of Securities Warrants offered thereby for
the terms of such Securities Warrants, including, where
applicable: (i) the designation, aggregate principal amount,
currencies, denominations, and terms of the series of Debt
Securities purchasable upon exercise of Debt Warrants and the
price at which such Debt Securities may be purchased upon such
exercise; (ii) the designation, number of shares, stated value,
and terms (including, without limitation, liquidation, dividend,
conversion, and voting rights) of the series of Preferred Stock
purchasable upon exercise of Preferred Stock Warrants and the
price at which such number of shares of Preferred Stock of such
series may be purchased upon such exercise; (iii) the number of
shares of Common Stock purchasable upon the exercise of Common
Stock Warrants and the price at which such number of shares of
Common Stock may be purchased upon such exercise; (iv) the date
on which the right to exercise such Securities Warrants shall
commence and the date on which such right shall expire (the
"Expiration Date"); (v) United States federal income tax
consequences applicable to such Securities Warrants; and (vi)
any other terms of such Securities Warrants. Preferred Stock
Warrants and Common Stock Warrants will be offered and
exercisable for U.S. dollars only. Securities Warrants will be
issued in registered form only. The exercise price for
Securities Warrants will be subject to adjustment in accordance
with the applicable Prospectus Supplement.
Each Securities Warrant will entitle the holder thereof to
purchase such principal amount of Debt Securities or such number
of shares of Preferred Stock or Common Stock at such exercise
price as shall in each case be set forth in, or calculable from,
the Prospectus Supplement relating to the Securities Warrants,
which exercise price may be subject to adjustment upon the
occurrence of certain events as set forth in such Prospectus
Supplement. After the close of business on the Expiration Date
(or such later date to which such Expiration Date may be
extended by the Company), unexercised Securities Warrants will
become void. The place or places where, and the manner in
which, Securities Warrants may be exercised shall be specified in the Prospectus
Supplement relating to such Securities Warrants.
Prior to the exercise of any Securities Warrants to purchase
Debt Securities, Preferred Stock, or Common Stock, holders of
such Securities Warrants will not have any of the rights of
holders of the Debt Securities, Preferred Stock, or Common
Stock, as the case may be, purchasable upon such exercise,
including the right to receive payments of principal of,
premium, if any, or interest, if any, on the Debt Securities
purchasable upon such exercise or to enforce covenants in the
applicable Indenture, or to receive payments of dividends, if
any, on the Preferred Stock or Common Stock purchasable upon
such exercise, or to exercise any applicable right to vote.
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to which this
Prospectus relates to or for resale to the public through one or
more underwriters, acting alone or in underwriting syndicates
led by one or more managing underwriters, and also may sell such
Offered Securities directly to other purchasers or dealers or
through agents.
The distribution of Offered Securities may be effected from
time to time in one or more transactions at a fixed price or
prices, which may be changed from time to time, at market prices
prevailing at the time of sale, at prices related to such
prevailing market prices, or at negotiated prices. Each
Prospectus Supplement will describe the method of distribution of the
Offered Securities.
In connection with the sale of Offered Securities, such
underwriters, dealers, and agents may receive compensation from
the Company, or from purchasers of Offered Securities for whom
they may act as agents, in the form of discounts, concessions,
or commissions. Underwriters, dealers, and agents that
participate in the distribution of Offered Securities and, in
certain cases, direct purchasers from the Company, may be deemed
to be "underwriters" and any discounts or commissions received
by them and any profit on the resale of Offered Securities by
them may be deemed to be underwriting discounts and commissions
under the Securities Act. Any such underwriters, dealers, or
agents will be identified and any such compensation will be
described in the applicable Prospectus Supplement.
Under agreements which may be entered into by the Company,
underwriters, dealers, and agents who participate in the
distribution of Offered Securities may be entitled to
indemnification by the Company against certain liabilities,
including liabilities under the Securities Act. The place and
time of delivery for Offered Debt Securities in respect of which
this Prospectus is delivered will be set forth in the applicable
Prospectus Supplement.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon
for the Company by Timothy J. Fretthold, Esq., Senior Vice
President/Group Executive and General Counsel of the Company,
and for the underwriters, dealers, or other agents by Simpson
Thacher & Bartlett (a partnership which includes professional
corporations), New York, New York. As of May 31, 1996, Mr.
Fretthold beneficially owned 55,851 shares of Common Stock of
the Company, including 29,464 shares which he had the right to
acquire within 60 days through the exercise of employee stock
options.
EXPERTS
The financial statements incorporated in this Prospectus by
reference to the 1995 Form 10-K have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent
accountants, given on the authority of said firm as experts in
auditing and accounting.
With respect to the unaudited consolidated financial
information of the Company for the three-month periods ended
March 31, 1996 and 1995, incorporated by reference in this
Prospectus, Price Waterhouse LLP reported that they have applied
limited procedures in accordance with professional standards for
a review of such information. However, their separate report
dated May 10, 1996, incorporated by reference herein, states
that they do not express an opinion on that unaudited
consolidated financial information. Price Waterhouse LLP has
not carried out any significant or additional audit tests beyond
those which would have been necessary if their report had not
been included. Accordingly, the degree of reliance on their
report on such information should be restricted in light of the
limited nature of the review procedures applied. Price
Waterhouse LLP is not subject to the liability provisions of
Section 11 of the Securities Act for their report on the
unaudited consolidated financial information because that report
is not a "report" or a "part" of the Registration Statement
prepared or certified by Price Waterhouse LLP within the meaning
of Sections 7 and 11 of the Securities Act.
The consolidated financial statements of National
Convenience Stores Incorporated for the year ended June 30, 1995
incorporated by reference in this Prospectus from the Company's
Current Report on Form 8-K/A (dated December 14, 1995 and filed
with the Commission on February 14, 1996) have been audited by
Deloitte & Touche LLP, independent auditors, as stated in their
report dated September 19, 1995 (insofar as it relates to the
consolidated financial statements of National Convenience Stores
Incorporated for the year ended June 30, 1995), which is
incorporated herein by reference, and such consolidated
financial statements have been so incorporated in reliance upon
the report of such firm given upon their authority as experts in
accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Estimated expenses in connection with the issuance and
distribution of the securities to be registered, other than
underwriters' or agents' discounts and commissions, are as
follows:
Registration Fee $ 34,483
Blue Sky Fees and Expenses 10,000
Printing Expenses 15,000
Legal Fees and Expenses 20,000
Accounting Fees and Expenses 10,000
Indenture Trustee Fees and Expenses 1,500
Miscellaneous 4,017
Total $ 95,000
Item 15. Indemnification of Directors and Officers
Set forth below is a description of Article Tenth ("Article
Tenth") of the Certificate. This description is intended as a
summary only and is qualified in its entirety by reference to
the Certificate.
Elimination of Liability in Certain Circumstances. Article
Tenth protects the Company's directors against monetary damages
for breaches of their fiduciary duty of care, except as set
forth below. Under the Delaware General Corporation Law (the
"Delaware Law"), absent Article Tenth, directors could generally
be held liable for gross negligence for decisions made in the
performance of their duty of care but not for simple negligence.
Article Tenth eliminates director liability for negligence in
the performance of their duties, including gross negligence.
Directors remain liable for breaches of their duty of loyalty to
the Company and its stockholders, as well as acts or omissions
not in good faith or which involve intentional misconduct or a
knowing violation of law and transactions from which a director
derives improper personal benefit.
Article Tenth does not limit a stockholder's ability to
pursue injunctive or other equitable relief and does not apply
to claims arising under violations of the federal securities
laws.
Indemnification and Insurance. Under Delaware Law,
directors and officers as well as other employees and
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 such as 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 corporation, and, with
respect to any criminal action or proceeding, had no reasonable
cause to believe their conduct was unlawful.
Article Tenth provides, in general, that each person who
was or is made a party to, or is involved in, any action, suit,
or proceeding by reason of the fact that he or she is or was a
director, officer, employee, or agent of the Company (or was
serving at the request of the Company as a director, officer,
employee, or agent for another entity) will be indemnified and
held harmless by the Company, to the full extent authorized by
Delaware Law, as currently in effect (or, to the extent
indemnification is broadened, as it may be amended) against all
expense, liability, or loss (including attorneys' fees,
judgments, fines, ERISA excise taxes, or penalties and amounts
to be paid in settlement) reasonably incurred by such person in
connection therewith. Article Tenth provides that persons
indemnified thereunder may bring suit against the Company to
recover unpaid amounts claimed thereunder, and that if such suit
is successful, the expenses of bringing such a suit will be
reimbursed by the Company. Article Tenth further provides that
while it is a defense to such a suit that the person claiming
indemnification has not met the applicable standards of conduct making
indemnification permissible under Delaware Law, the burden of proving the
defense will be on the Company and neither the failure of the Company's Board to
have made a determination that indemnification is proper, nor an
actual determination that the claimant has not met the
applicable standard of conduct will be a defense to the action
or create a presumption that the claimant has not met the
applicable standard of conduct.
Article Tenth provides that the Company may maintain
insurance, at its expense, to protect itself and any of its
directors, officers, employees, or agents 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 Delaware Law. Finally, Article Tenth provides that the
rights to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition
conferred therein will not be exclusive of any other right which
any person may have or acquire under any statute, provision of
the Certificate or the Company's By-laws, agreement, or vote of
stockholders or disinterested directors, or otherwise.
The Company and each of the Directors have entered into
indemnification agreements providing for indemnification that is
broader than that provided by Article Tenth. Each of the
Directors of the Company is entitled to indemnification pursuant
to the indemnification agreements whether the Director's acts,
failures to act, neglect, or breach of duty giving rise to the
right to indemnity thereunder occurred prior 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 and does not
apply to acts, failures to act, neglect, or breaches of duty of
any Director of the Company while acting in such Director's prior position, if
any, with Maxus Energy Corporation, the Company's former parent company.
Item 16. Exhibits
Exhibit No. Description
1.1 -- Agency Agreement, dated January 25, 1990 (filed as
Exhibit 1.1 to the Registration Statement, File No.
33-32024 ("Registration Statement No. 33-32024")
and incorporated herein by reference).
1.2 -- Amendment No. 1 to the Agency Agreement (filed as
Exhibit 1.2 to the Registration Statement, File No.
33-43502 and incorporated herein by reference).
1.3 -- Amendment No. 2 to the Agency Agreement (filed as
Exhibit 1.3 to the Registration Statement, File
No. 33-58744 and incorporated herein by reference).
**1.4 -- Amendment No. 3 to the Agency Agreement.
*1.5 -- Underwriting Agreement Standard Provisions(filed as
Exhibit 1.5 to the Registration Statement No.
33-59451 ("Registration Statement 33-59451") and
incorporated herein by reference).
4.1 -- Indenture, dated as of December 15, 1989, between the
Company and The First National Bank of Chicago,
as trustee (filed as Exhibit 4.1 to Registration
Statement No. 33-32024 and incorporated herein by
reference).
4.2 -- Forms of Medium-Term Notes (filed as Exhibit 4.2 to the
Registration Statement, File No. 33-67556 ("Registration
Statement No. 33-67556") and incorporated herein by
reference).
4.3 -- Certificate of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Form 10 Registration No.
1-9409 (the "Form 10") and incorporated herein by
reference).
4.4 -- By-laws of the Company (filed as Exhibit 3.2 to the
Form 10 and incorporated herein by reference).
4.5 -- Form of Common Stock Certificate (filed as Exhibit
4.3 to the Form 10 and incorporated herein by
reference).
4.6 -- Form of Right Certificate (filed as Exhibit 1 to
the Company's Form 8-A Registration Statement,
dated March 6, 1990 (the "Form 8-A"), and
incorporated herein by reference).
4.7 -- Rights Agreement, dated as of March 6, 1990,
between the Company and Ameritrust Company National
Association (filed as Exhibit 2 to the Form 8-A and
incorporated herein by reference).
4.8 -- Form of Certificate of Designations of Series A
Junior Participating Preferred Stock (filed as
Exhibit 3 to the Form 8-A and incorporated herein
by reference).
***4.9 -- Form of Warrant Agreement for Debt Securities.
***4.10 -- Form of Warrant Certificate for Debt Securities.
***4.11 -- Form of Warrant Agreement for Preferred Stock.
***4.12 -- Form of Warrant Certificate for Preferred Stock.
***4.13 -- Form of Warrant Agreement for Common Stock.
***4.14 -- Form of Warrant Certificate for Common Stock.
*5.1 -- Opinion of Timothy J. Fretthold, Esq., Senior
Vice-President/Group Executive and General Counsel
regarding legality of Offered Securities
registered under Registration Statement No. 33-59451
**5.2 -- Opinion of Timothy J. Fretthold, Esq., Senior
Vice-President/Group Executive and General Counsel
regarding legality of Offered Securities registered
under this Registration Statement.
**12.1 -- Computation of ratio of earnings to fixed charges
and earnings to fixed charges and preferred stock
dividends for the three-month periods ended
March 31, 1996 and 1995 and for each of the five
years ended December 31, 1995.
15.1 -- Independent Accountants Awareness Letter
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Timothy J. Fretthold, Esq. (included in
Exhibit 5.1 and Exhibit 5.2).
23.3 -- Consent of Deloitte & Touche, L.L.P.
*24.1 -- Powers of Attorney of directors and officers of the
Company relating to Registration Statement
No. 33-59451.
*24.2 -- Power of Attorney of the Company relating to
Registration Statement 33-59451.
*24.3 -- Certified copy of resolutions of the Board of
Directors of the Company relating to Offered
Securities registered under Registration
Statement 33-59451.
**24.4 -- Powers of Attorney of directors and officers of the
Company relating to this Registration Statement
**24.5 -- Power of Attorney of the Company relating to this
Registration Statement
**24.6 -- Certified copies of resolutions of the Board of
Directors of the Company relating to the Offered
Securities registered under this registration
statement.
**25.1 -- Statement as to the eligibility of the Trustee
under the Indenture.
* Previously filed as part of Registration Statement No. 33-59451.
** Previously filed.
*** To be filed as an Exhibit to Form 8-K in reference to the
specific offering of Securities Warrants to which it relates.
Item 17. Undertakings
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement and/or Registration Statement No. 33-59451:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of
1933, unless the information required to be
included in such post-effective amendment
is contained in periodic reports filed by
the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act
of 1934 and incorporated herein by
reference;
(ii) To reflect in the prospectus any facts or
events arising after the effective date of
this Registration Statement and/or
Registration Statement No. 33-59451 (or the
most recent post-effective amendment
thereof) which, individually or in the
aggregate, represent a fundamental change
in the information set forth in this
Registration Statement and/or Registration
Statement No. 33-59451, unless the
information required to be included in such
post-effective amendment is contained in
periodic reports filed by the registrant
pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 and
incorporated herein by reference;
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in this Registration
Statement and/or Registration Statement No.
33-59451 or any material change to such
information in this Registration Statement
and/or Registration Statement No. 33-59451;
(2) That, for the purpose of determining any liability
under the Securities 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;
(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; and
(4) That for purposes of determining any liability under
the Securities Act of 1933, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in this
Registration Statement and/or Registration Statement No. 33-59451 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.
Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers, and
controlling persons of the Registrant pursuant to the foregoing
provisions, or otherwise, the Registrant has been advised that
in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful
defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the
securities being registered, the Registrant will, unless in the
opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it
is against public policy as expressed in the Securities Act and
will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form
S-3 and has duly caused this Amendment No. 1 to Registration
Statement No. 333-4157 and post-Effective Amendment No. 2 to
Registration Statement No. 33-59451 to be signed on its behalf
by the undersigned, thereunto duly authorized pursuant to Powers
of Attorney executed on behalf of the Registrant and previously
filed with the Securities and Exchange Commission or
contemporaneously filed herewith in the City of San Antonio,
State of Texas on June 11, 1996.
DIAMOND SHAMROCK, INC.
By /S/ TODD WALKER
Todd Walker
Attorney in Fact
Pursuant to the requirements of the Securities Act, this
Amendment No. 1 to Registration Statement No. 333-4157 and Post-Effective
Amendment No. 2 to Registration Statement No. 33-59451
has been signed on June 11, 1996 by the following persons in the
capacities indicated below.
Signature Title
R. R. HEMMINGHAUS* Chairman, President, and
R. R. Hemminghaus Chief Executive Officer
(Principal Executive
Officer) and Director
ROBERT C. BECKER* Vice President and Treasurer
Robert C. Becker (Principal Financial Officer)
GARY E. JOHNSON* Vice President and Controller
Gary E. Johnson (Principal Accounting Officer)
B. CHARLES AMES* Director
B. Charles Ames
E. GLENN BIGGS* Director
E. Glenn Biggs
W. E. BRADFORD* Director
W. E. Bradford
LAURO F. CAVAZOS* Director
Lauro F. Cavazos
W. H. CLARK* Director
W. H. Clark
WILLIAM L. FISHER* Director
William L. Fisher
KATHERINE D. ORTEGA* Director
Katherine D. Ortega
BOB MARBUT* Director
Bob Marbut
* The undersigned, by signing his name hereto, does sign
and execute this Registration Statement pursuant to the Powers
of Attorney executed by the above-named officers and directors
and previously filed with the Securities and Exchange
Commission.
/S/ TODD WALKER
Todd Walker
Attorney-in-Fact
INDEX TO EXHIBITS
Exhibit
Number Exhibit
1.1 -- Agency Agreement, dated January 25, 1990 (filed as
Exhibit 1.1 to the Registration Statement, File No.
33-32024 ("Registration Statement No. 33-32024")
and incorporated herein by reference).
1.2 -- Amendment No. 1 to the Agency Agreement (filed as
Exhibit 1.2 to the Registration Statement, File No.
33-43502 and incorporated herein by reference).
1.3 -- Amendment No. 2 to the Agency Agreement (filed as
Exhibit 1.3 to the Registration Statement, File No.
33-58744 and incorporated herein by reference).
**1.4 -- Amendment No. 3 to the Agency Agreement.
*1.5 -- Underwriting Agreement Standard Provisions(filed as
Exhibit 1.5 to the Registration Statement No.
33-59451 ("Registration Statement 33-59451") and
incorporated herein by reference).
4.1 -- Indenture, dated as of December 15, 1989, between
the Company and The First National Bank of Chicago,
as trustee (filed as Exhibit 4.1 to Registration
Statement No. 33-32024 and incorporated herein by
reference).
4.2 -- Forms of Medium-Term Notes (filed as Exhibit 4.2 to
the Registration Statement, File No. 33-67556
("Registration Statement No. 33-67556") and
incorporated herein by reference).
4.3 -- Certificate of Incorporation of the Company (filed
as Exhibit 3.1 to the Company's Form 10
Registration No. 1-9409 (the "Form 10") and
incorporated herein by reference).
4.4 -- By-laws of the Company (filed as Exhibit 3.2 to the
Form 10 and incorporated herein by reference).
4.5 -- Form of Common Stock Certificate (filed as Exhibit
4.3 to the Form 10 and incorporated herein by
reference).
4.6 -- Form of Right Certificate (filed as Exhibit 1 to
the Company's Form 8-A Registration Statement,
dated March 6, 1990 (the "Form 8-A"), and
incorporated herein by reference).
4.7 -- Rights Agreement, dated as of March 6, 1990,
between the Company and Ameritrust Company National
Association (filed as Exhibit 2 to the Form 8-A and
incorporated herein by reference).
4.8 -- Form of Certificate of Designations of Series A
Junior Participating Preferred Stock (filed as
Exhibit 3 to the Form 8-A and incorporated herein
by reference).
***4.9 -- Form of Warrant Agreement for Debt Securities.
***4.10 -- Form of Warrant Certificate for Debt Securities.
***4.11 -- Form of Warrant Agreement for Preferred Stock.
***4.12 -- Form of Warrant Certificate for Preferred Stock.
***4.13 -- Form of Warrant Agreement for Common Stock.
***4.14 -- Form of Warrant Certificate for Common Stock.
*5.1 -- Opinion of Timothy J. Fretthold, Esq., Senior
Vice-President/Group Executive and General Counsel
regarding legality of Offered Securities
registered under Registration Statement No. 33-59451
**5.2 -- Opinion of Timothy J. Fretthold, Esq., Senior Vice-
President/Group Executive and General Counsel
regarding legality of Offered Securities registered
under this Registration Statement.
**12.1 -- Computation of ratio of earnings to fixed charges
and earnings to fixed charges and preferred stock
dividends for the three-month periods ended
March 31, 1996 and 1995 and for each of the five
years ended December 31, 1995.
15.1 -- Independent Accountants Awareness Letter
23.1 -- Consent of Price Waterhouse LLP.
23.2 -- Consent of Timothy J. Fretthold, Esq. (included in
Exhibit 5.1 and Exhibit 5.2).
23.3 -- Consent of Deloitte & Touche, L.L.P.
*24.1 -- Powers of Attorney of directors and officers of the
Company relating to Registration Statement
No. 33-59451.
*24.2 -- Power of Attorney of the Company relating to
Registration Statement 33-59451.
*24.3 -- Certified copy of resolutions of the Board of
Directors of the Company relating to Offered
Securities registered under Registration
Statement 33-59451.
**24.4 -- Powers of Attorney of directors and officers of the
Company relating to this Registration Statement.
**24.5 -- Power of Attorney of the Company relating to this
Registration Statement
**24.6 -- Certified copies of resolutions of the Board of
Directors of the Company relating to the Offered
Securities registered under this registration
statement.
**25.1 -- Statement as to the eligibility of the Trustee
under the Indenture.
* Previously filed as part of Registration Statement No. 33-59451.
** Previously filed.
*** To be filed as an Exhibit to Form 8-K in reference to the
specific offering of Securities Warrants to which it relates.
W3151.TW
EXHIBIT 15.1
INDEPENDENT ACCOUNTANTS' AWARENESS LETTER
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 May 10, 1996 (issued pursuant to the provisions of
Statement on Auditing Standards No. 71) in the Prospectus
constituting part of Amendment No. 1 to Registration Statement
No. 333-4157 on Form S-3 and in Post-Effective Amendment No. 2
to Registration Statement No. 33-59451 on Form S-3 to be filed
on or about June 11, 1996. We are also aware of our
responsibilities under the Securities Act of 1933.
Yours very truly,
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Antonio, Texas
June 11, 1996
W3992.TW
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of Amendment No. 1 to Registration Statement No. 333-4157 on
Form S-3 and in Post-Effective Amendment No. 2 to Registration Statement No.
33-59451 on Form S-3 of our report dated February 23, 1996, which is attached
as Exhibit 13.3 to Diamond Shamrock, Inc.'s Annual Report on Form 10-K for the
year ended December 31, 1995. 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. We also consent to the
references to us under the heading "Experts"
in such Prospectus.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Antonio, Texas
June 11, 1996
W3993.TW
EXHIBIT 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in Amendment No. 1 to Registration
Statement No. 333-4157 of Diamond Shamrock, Inc. on Form S-3 and in
Post-Effective Amendment No. 2 to Registration Statement No. 33-59451 of
Diamond Shamrock, Inc. on Form S-3 of our report dated September 19, 1995
(insofar as it relates to the consolidated financial statements for the year
ended June 30, 1995), appearing in the Annual Report on Form 10-K of National
Convenience Stores Incorporated for the year ended June 30, 1995. We also
consent to the reference to us under the the heading "Experts" in the
Prospectus, which is part of such Registration Statements.
/S/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Houston, Texas
June 10, 1996
W3994.TW
