As filed with the Securities and Exchange Commission on May 20, 1996
REGISTRATION NO. 33-
Post-Effective Amendment No. 1 to REGISTRATION NO. 33-59451
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-3
Registration Statement and Post-Effective Amendment No. 1 under the
Securities Act of 1933
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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
Preferred Stock,
Par value $.01
Common Stock,
Par value $1.00(6)
Securities Warrants
Total $100,000,000 - $100,000,000 $34,482.76
(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 securities as may be issued in
exchange for, or upon conversion of, as the case may be, the securities
registered hereunder. Any of the securities registered hereunder may be sold
seperately 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 foriegn
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.
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 May 20, 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 May , 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 Current Report on Form 8-K/A, dated
December 14, 1995 and 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 April 30,
1996, 1,725,000 shares of the Company's 5% Cumulative Convertible
Preferred Stock and 29,258,874 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 April 30, 1996, Mr.
Fretthold beneficially owned 56,588 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.
** 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 Registration Statement and post-Effective
Amendment No. 1 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
contemporaniously filed herewith in the City of San Antonio, State
of Texas on May 20, 1996.
DIAMOND SHAMROCK, INC.
By /S/ TIMOTHY J. FRETTHOLD
Timothy J. Fretthold
Attorney-in-Fact
Pursuant to the requirements of the Securities Act, this
Registration Statement and Post-Effective Amendment to Registration
Statement No. 33-59451 has been signed on May 20, 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/ Timothy J. Fretthold
Timothy J. Fretthold
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.
** To be filed as an Exhibit to Form 8-K in reference to the
specific offering of Securities Warrants to which it relates.
W2961.TW
$150,000,000
DIAMOND SHAMROCK, INC.
Medium-Term Notes, Series B
AMENDMENT NO. 3 TO
AGENCY AGREEMENT
July 19, 1995
Lehman Brothers Inc. NatWest Capital Markets Limited
American Express Tower 175 Water Street
World Financial Center New York, New York 10038
New York, New York 10285
CS First Boston Corporation Chemical Securities Inc.
Park Avenue Plaza 270 Park Avenue
New York, New York 10055 New York, New York 10017
Merrill Lynch & Co.
Merrill Lynch, Pierce,
Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Dear Sirs:
Diamond Shamrock, Inc. (formerly known as Diamond Shamrock
R&M, Inc.), a Delaware corporation (the "Company"), makes
reference to the Agency Agreement dated January 25, 1990 (the
"Agency Agreement"), as amended by Amendment No. 1 to the Agency
Agreement dated May 18, 1990 and Amendment No. 2 to the Agency
Agreement dated December 9, 1991, among the Company and Lehman
Brothers, Inc., CS First Boston Corporation, and Merrill Lynch
& Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
(individually, along with NatWest Capital Markets Limited and
Chemical Securities Inc., an "Agent" and, collectively, along
with NatWest Capital Markets Limited and Chemical Securities
Inc., the "Agents") and confirms its agreement with each of you
to amend the Agency Agreement as set forth herein.
1. Medium-Term Notes, Series B. The term "Medium-Term
Notes, Series A" is hereby deleted wherever it appears in the
Agency Agreement and the Exhibits thereto and the term
"Medium-Term Notes, Series B" is hereby substituted in lieu
thereof.
2. Corporate Name Changes. The names "Diamond Shamrock
R&M, Inc.", "Shearson Lehman Hutton Inc.", "Shearson Lehman
Hutton Special Securities Incorporated" and "Merrill Lynch
Capital Markets" are hereby deleted wherever they appear in the
Agency Agreement and the Exhibits thereto and the names "Diamond
Shamrock, Inc.", "Lehman Brothers Inc.", "Lehman Government
Securities Inc." and "Merrill Lynch & Co.", respectively, are
hereby substituted in lieu thereof.
3. Additional Agents. By execution hereof, the parties
acknowlege that the Company has properly exercised its right
under Section 2(a) of the Agency Agreement to appoint NatWest
Capital Markets Limited ("NatWest") and Chemical Securities Inc.
as Additional Agents under the Agency Agreement, and by
execution hereof, NatWest and Chemical Securities Inc.
acknowlege that they shall, from and after the date of this
Amendment No. 3, be entitled to all of the rights and benefits,
and be subject to all of the duties and obligations, of an Agent
under the Agency Agreement. The parties also acknowlege that
the Company has heretofor properly exercised its right under
Section 2(a) of the Agency Agreement to appoint CS First Boston
Corporation as an Additional Agent under the Agency Agreement
effective as of December 9, 1991, and that as of that date CS
First Boston Corporation became entitled to all of the rights
and benefits, and subject to all of the duties and obligations,
of an Agent under the Agency Agreement.
4. Section l(a). Section 1(a) of the Agency
Agreement is hereby amended to read in full as follows:
(a) General. A registration statement on Form S-3
(No. 33-59451) has been prepared and filed by the Company in
conformity in all material respects with the requirements of the
Securities Act of 1933 (the "Act") and the rules and
regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and such
Registration Statement has become effective under the Act. The
Indenture has been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"). As used in this
Agreement, (i) "Registration Statement" means such registration
statement as it became effective under the Act and as from time
to time further amended or supplemented thereafter; (ii) "Basic
Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in the Registration
Statement and (iii) "Prospectus" means the Basic Prospectus and
any amendments or supplements relating to the Notes, as filed
with the Commission pursuant to paragraph (b) of Rule 424 of the
Rules and Regulations. The Commission has not issued any order
preventing or suspending the use of the Prospectus.
5. Exhibit A (Schedule of Payments). Exhibit A to the
Agency Agreement is hereby amended by deleting the last row of
the chart set forth therein and by adding the following rows to
such chart:
15 years to less than 20 years, .650%
20 years to 30 years .750%
6. Exhibit B (Administrative Procedures). Exhibit B to
the Agency Agreement is hereby amended by:
(a) Deleting the phrase "due from nine months to 15 years
from date of issue" in the first sentence thereof and
substituting, in lieu thereof, the phrase "due from nine months
to 30 years from date of issue";
(b) Deleting the phrase "January 15 and July 15 of each
year" in the first paragraph under the heading "Interest
Payments" and substituting, in lieu thereof, the phrase "May 15
and November 15 of each year,(or such other dates provided in
the applicable pricing supplement)(whether or not a Business
Day)";
(c) Deleting the phrase "January 1 or July 1 (whether or
not a Business Day)" in the second sentence of the third
paragraph under the heading "Interest Payments" and
substituting, in lieu thereof, the phrase "May 1 or November 1
(or such other dates provided in the applicable pricing
supplement)(whether or not a Business Day)";
(d) Deleting "$1,000,000" wherever it appears from the
paragraph relating to "Issuance" in the section entitled
"Special Administrative Procedures For Book-Entry Notes", and
substituting "$150,000,000" therefor;
(e) Deleting "100,000,000" from paragraph B of the paragraph
relating to "Settlement Procedures" in the section entitled
Special Administrative Procedures For Book-Entry Notes", and
substituting "$150,000,000" therefor, and deleting the text of
paragraph I from such Section B and substituting "The Trustee
will wire transfer funds which are transfered to the Trustee in
accordance with Settlement Procedure F to the account maintained
by Company at Chase Manhattan Bank, N.A., ABA Number 021000021,
Account Number 9102575041, or to such other institution and
account designated by Company in writing delivered to the
Trustee at least five business days prior to the date of
settlement";
(f) Amending the paragraph set out under the heading
"Denominations" to read: "The Notes (other than Notes
represented by Global Securities) will be issued and payable in
U.S. dollars, and will be issued in denominations which are
integral multiples of $1000"; and
(g) Amending the paragraph set out in the section entitled
"Special Administrative Proceedures For Book-Entry Notes" under
the heading "Denominations" so that the first sentence of such
paragraph reads "Book-Entry Notes will be issued in principal
amounts which are integral multiples of $1000".
7. Certain Agreements of NatWest. In consideration of
the designation of NatWest as an Additional Agent under the
Agency Agreement, NatWest hereby agrees that, unless
specifically permitted by applicable law, it will not offer or
sell Notes within the United States of America, its territories
or possesions, or to persons who are citizens thereof or
residents therein, provided that NatWest Securities Corporation,
an affiliate of NatWest and a United States broker-dealer, may
act as a selling broker with respect to the Notes, acting as
agent for purchasers within the United States. NatWest further
agrees that it will not offer or sell prior to the date six
months after their date of issue any Notes having an original
maturity of one year or greater to persons in the United
Kingdom, except to persons whose ordinary activities involve
them in acquiring, holding, managing, or disposing of
investments (as principal or agent) for the purposes of their
businesses or otherwise in circumstances which will not result
in an offer to the public in the United Kingdom within the
meaning of the Public Offers of Securities Regulations 1995;
that it will comply with all applicable provisions of the
Financial Services Act 1986 with respect to anything done by it
in relation to the Notes in, from, or otherwise involving the
United Kingdom; and that it will issue or pass on in the United
Kingdom any document received by it in connection with the issue
of the Notes only to a person who is of a kind described in
Article 11(3) of the Financial services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995 or is a person to whom
such document may otherwise lawfully be issued or passed on.
8. Delivery of Documents. The documents required to be
delivered pursuant to Section 6 of the Agency Agreement shall be
delivered at the offices of Simpson Thacher & Bartlett, 425
Lexington Avenue, New York, New York 10017, not later than 10:00
a.m., New York City time, on the date of this Amendment No. 3 or
at such later time as may be mutually agreed upon by the Company
and the Agents, which in no event shall be later than the time
at which the Agents recommence solicitation of offers to
purchase Notes under the Agency Agreement.
9. Pricing Supplements. The parties hereto hereby agree
that in connection with the sale of any Notes, the Pricing
Supplements referred to in the Procedures (as defined in the
Agency Agreement) shall be substantially in the form of Exhibit
A hereto.
This Amendment No. 3 shall take effect on and as of the
date first above written. Except as amended hereby, all other
terms and conditions of the Agency Agreement shall continue in
term full force and effect. THIS AMENDMENT NO. 3 SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK.
If the foregoing correctly sets forth our agreement,
please indicate your acceptance hereof in the space provided for
that purpose below.
Very truly yours,
DIAMOND SHAMROCK, INC.
By:/s/ R.C. BECKER
R. C. Becker, Vice President
and Treasurer
CONFIRMED AND ACCEPTED, as of
the date first above written:
LEHMAN BROTHERS INC.
By: /s/ JOHN F. KLAGHLAN
John F. Klaghlan
Authorized Signatory
CS FIRST BOSTON CORPORATION
By: /s/ RICHARD W. KURZ
Richard W. Kurz
Authorized Signatory
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
By: /s/ ROBERT J. LITTLE
Robert J. Little
Authorized Signatory
NATWEST CAPITAL MARKETS LIMITED
By: /s/ KEN BAUGH
Ken Baugh
Authorized Signatory
CHEMICAL SECURITIES INC.
By: /s/ PETER MADONIA
Peter Madonia
Authorized Signatory
W2966.TW
<PAGE>
EXHIBIT A
Forms of Pricing Supplements
<PAGE>
Rule 424(b)( )
Registration Statement No. ____________
PRICING SUPPLEMENT NO. _______________
Dated _____________, to
Prospectus, dated _______________, and
Prospectus Supplement dated __________________
DIAMOND SHAMROCK, INC.
Medium-Term Notes, Series B
(Fixed Rate)
Due from Nine Months to 30 Years from Date of Issue
Interest Payable each ______________ and _______________ and at Maturity
Principal Amount: _________________
Issue Price: ___________________
Agent's Commission: _______________
Trade Date: ____________________
Original Issue Date: ______________
Net Proceeds to Issuer: ______________
Interest Rate Per Annum: _____________
Overdue Rate: _________________
Stated Maturity: ________________
Repurchase Price (for Discount Securities): _______________
Redemption Information: ______________
Currency or Currency Units: ______________
(if other than U.S.
dollars, see attached)
Form: [ ] Book-Entry [ ] Certificated
[If applicable: [name of Agent] has purchased the Notes offered hereby as
principal in this transaction for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale) at varying prices
related to prevailing market prices at the time of resale as determined by
[name of Agent).]
The aggregate principal amount of this offering is U.S. $____________ (which,
if the securities offered hereby are denominated in a currency or currency unit
other than U.S. dollars, is the equivalent, in the currency or currency units
set forth herein, of the principal amount set forth herein at the Exchange Rate
set forth herein) and relates only to Pricing Supplement No. ____________.
Medium-Term Notes, Series B, may be issued by the Company in an aggregate
principal amount of up to U.S. $150,000,000 or the equivalent in foreign
currency or foreign currency units set forth herein, of the principal amount
set forth herein at the Exchange Rate set forth herein) and relates only to
Pricing Supplement No. _______________. Medium-Term Notes, Series B, may be
issued by the Company in an aggregate principal amount of up to U.S.
$150,000,000 or the equivalent in foreign currency or foreign currency units,
less an amount equal to the aggregate proceeds to the Company from the sale of
any other Debt Securities, including other series of medium-term notes, and, to
date, including this offering, an aggregate of U.S. $_______________, or the
equivalent in foreign currency units of Medium-Term Notes, Series B, and all
other Debt Securities, has been issued.
<PAGE>
Rule 424(b)( )
Registration Statement No. ___________
PRICING SUPPLEMENT NO. _______________
Dated _______________, to
Prospectus, dated ____________________, and
Prospectus Supplement dated __________________________
Diamond Shamrock, Inc.
Medium-Term Notes, Series B
(Floating Rate)
Due from Nine Months to 30 Years from Date of Issue
Principal Amount: Currency or Currency Units:
(if other than U.S. dollars, see
attached)
Issue Price: Calculation Agent:
Agent's Commission: ______%
Interest Rate Basis:
Initial Interest Rate: _________%
( ) Treasury Rate Trade Date: ___________________
( ) LIBOR Original Issue Date: ___________
( ) Commercial Paper Rate Net Proceeds to Issuer: $__________
( ) Federal Funds Effective Rate Stated Maturity: _______________
( ) Prime Rate Maximum Interest Rate: _________%
( ) CD Rate Minimum Interest Rate: _________%
( ) Other: (see attached) Spread: (+ -) __________________
Overdue Rate: _________%
Index Maturity: _________________
Interest Rate Reset Period: _________________________________
daily, weekly, monthly, quarterly,
semi-annually, or annually
Interest Payment Dates:
Regular Record Dates:
Interest Determination Dates:
Repurchase Price (for Discount Securities):
Redemption Information:
Form: [ ] Book-Entry [ ] Certificated
[If applicable: [name of Agent] has purchased the Notes offered hereby as
principal in this transaction for resale to one or more investors or to another
broker-dealer (acting as principal for purposes of resale) at varying prices
related to prevailing market prices at the time of resale as determined by
[name of Agent].]
The aggregate principal amount of this offering is U.S. $______________ (which,
if the securities offered hereby are denominated in a currency or currency unit
other than U.S. dollars, is the equivalent, in the currency or currency units
set forth herein, of the principal amount set forth herein at the Exchange Rate
set forth herein) and relates only to Pricing Supplement No. _______________.
Medium-Term Notes, Series B, may be issued by the Company in an aggregate
principal amount of up to U.S. $150,000,000 or the equivalent in foreign
currency or foreign currency units, less an amount equal to the aggregate
proceeds to the Company from the sale of any other Debt Securities, including
other series of medium-term notes, and, to date, including this offering, an
aggregate of U.S. $_______________, or the equivalent in foreign currency units
of Medium-Term Notes, Series B, and all other Debt Securities, has been issued.
May 17, 1996
Diamond Shamrock, Inc.
9830 Colonnade
San Antonio, Texas 78230
Re: Registration Statement on Form S-3 of Diamond Shamrock,
Inc. (Registration No. ______________)
Gentlemen:
I am Senior Vice President/Group Executive and General Counsel
of Diamond Shamrock, Inc. (the "Company"). This letter is
delivered in connection with the registration, issuance, and
sale of up to an aggregate amount of $100,000,000 of Debt
Securities, Debt Warrants, Common Stock, Common Stock
Warrants, Preferred Stock, and Preferred Stock Warrants
(collectively the "Offered Securities") pursuant to the
resolutions authorizing the issuance and sale of the Offered
Securities, and such other acts as are necessarily incident to
the registration, issuance and sale of the Offered Securities
(the "Authorizing Resolutions") adopted by the Company's Board
of Directors at a meeting of the Company's Board of Directors
held on February 6, 1996. The Debt Securities will be issued
pursuant to the terms of an indenture (the "Indenture") dated
as of December 15, 1989, between the Company and The First
National Bank of Chicago acting as trustee (the "Trustee").
I have examined such documents, records, and matters of law as
I have deemed necessary for the purposes of this opinion, and
based thereon I am of the opinion that the Offered Securities
have been duly authorized and will be valid and binding
obligations of the Company (except as enforcement thereof may
be limited by bankrupcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to
or affecting creditors' rights generally and subject to
general equitable principles) when the Offered Securities are
issued, authenticated or countersigned, and delivered by the
Company for valid consideration in accordance with the
Authorizing Resolutions and (i) in the case of the Debt
Securities, the terms of the Indenture, (ii) in the case of
Preferred Stock, the applicable Designation of Preferences and
the Company's Certificate of Incorporation (the
"Certificate"), (iii) in the case of Common Stock, the
Certificate and (iv) in the case of Debt Warrants, Common
Stock Warrants, and Preferred Stock Warrants, the applicable
Warrant Agreement.
This opinion is based on the Company's Certificate and Bylaws
and applicable law as of the date hereof. No assurance can be
provided as to the effect on this opinion of any amendment or
other change to the Company's Certificate or Bylaws or
applicable law after the date hereof.
I hereby consent to the filing of this opinion as an exhibit
to the Registration Statement on Form S-3 filed by the Company
to effect registration under the Securities Act of 1933, as
amended, of the Offered Securities and to the reference to me
under the caption "Legal Matters" in the Prospectus comprising
part of such Registration Statement.
Very truly yours,
/s/ TIMOTHY J. FRETTHOLD
TIMOTHY J. FRETTHOLD
TJF\TW:es
W2906.TW
DIAMOND SHAMROCK, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
(dollars in millions)
<TABLE>
<CAPTION> Three Months
Ended Mar. 31, Year Ended December 31,
1996 1995 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing
operations, before income taxes $12.4 $ 9.1 $73.7 $125.8 $57.5 $44.0 $ 57.7
Fixed Charges:
Interest Expense 18.5 11.4 47.4 43.3 40.6 40.5 37.7
Capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5
One-third of rental expense(1) 4.6 2.5 11.2 9.7 7.3 7.6 8.2
Dividend requirement on pre-
ferred stock(2) 1.6 1.5 5.8 6.0 3.4 - -
Total Fixed Charges 25.9 16.5 71.2 61.3 57.4 54.2 48.4
Less capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5
Less dividend requirement on
preferred stock(2) 1.6 1.5 5.8 6.0 3.4 - -
Adjustment to income 23.1 13.9 58.6 53.0 47.9 8.1 45.9
Income, as adjusted $35.5 $23.0 $132.3 $178.8 $105.4 $92.1 $103.6
Ratio of Earnings to Fixed Charges 1.4 1.4 1.9 2.9 1.8 1.7 2.1
</TABLE>
(1) The amount deemed by the Company to represent the interest portion of such
expense.
(2) The preferred stock dividend requirement has been increased to an amount
representing the pre-tax earnings which would be required to cover such
dividend requirements.
DIAMOND SHAMROCK, INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION> Three Months
Ended Mar. 31, Year Ended December 31,
1996 1995 1995 1994 1993 1992 1991
<S> <C> <C> <C> <C> <C> <C> <C>
Income from continuing
operations, before income taxes $12.4 $ 9.1 $ 73.7 $125.8 $ 57.5 $44.0 $ 57.7
Fixed Charges:
Interest Expense 18.5 11.4 47.4 43.3 40.6 40.5 37.7
Capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5
One-third of rental expense(1) 4.6 2.5 11.2 9.7 7.3 7.6 8.2
Total Fixed Charges 24.3 15.0 65.4 55.3 54.0 54.2 48.4
Less capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5
Adjustment to income 23.1 13.9 58.6 53.0 47.9 48.1 45.9
Income, as adjusted $35.5 $23.0 $132.3 $178.8 $105.4 $92.1 $103.6
Ratio of Earnings to Fixed Charges 1.5 1.5 2.0 3.2 2.0 1.7 2.1
</TABLE>
(1) The amount deemed by the Company to represent the interest portion of such
expense.
W3138.TW
EXHIBIT 15.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement 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
May 17, 1996
W3134.TW
EXHIBIT 23.1
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 its Registration Statement on Form S-3 to be filed on or about
May 20, 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
May 17, 1996
Exhibit 23.3
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration
Statement of Diamond Shamrock, Inc. on Form S-3 and in Post-Effective
Amendment No. 1 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 heading "Experts" in the
Prospectus, which is part of such Registration Statements.
/s/ DELOITTE & TOUCHE LLP
DELOITTE & TOUCHE LLP
Houston, Texas
May 17, 1996
W3141.TW
Exhibit 24.4
POWER OF ATTORNEY
The undersigned directors and/or officers of Diamond
Shamrock, Inc., hereby constitute and appoint Timothy J.
Fretthold, Todd Walker, Robert A. Profusek, James E. O'Bannon,
Edward H. Molter and Wendy Dann Adato, or any of them, as the
true and lawful attorneys-in-fact and agents of the undersigned,
each with full power of substitution and resubstitution, to do
any and all acts and things in their names and in their
respective capacities as a director and/or an officer of Diamond
Shamrock, Inc., and to execute any and all instruments for them
and in their names in the capacities indicated above, which said
attorneys-in-fact and agents, or any of them, may deem necessary
or advisable to enable Diamond Shamrock, Inc. to comply with the
Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission in
connection with a Registration Statement on Form S-3, including
without limitation power and authority to sign for them, in
their name in the capacities indicated above, such Registration
Statement and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that the said attorneys-in-fact and agents, or
their substitute or substitutes, or any one of them, shall do or
cause to be done by virtue hereof.
/s/ B. CHARLES AMES /s/ BOB MARBUT
B. Charles Ames Bob Marbut
/s/ E. GLENN BIGGS /s/ KATHERIINE D. ORTEGA
E. Glenn Biggs Katherine D. Ortega
/s/ W. E. BRADFORD /s/ R. C. BECKER
W. E. Bradford R. C. Becker
/s/ LAURO F. CAVAZOS /s/ GARY E. JOHNSON
Lauro F. Cavazos Gary E. Johnson
/s/ W. H. CLARK /s/ R. R. HEMMINGHAUS
W. H. Clark R. R. Hemminghaus
/s/ WILLIAM L. FISHER
William L. Fisher
Dated: May 13, 1996 W2773.TW
Exhibit 24.5
POWER OF ATTORNEY
Diamond Shamrock, Inc. hereby constitutes and appoints Timothy J.
Fretthold, Todd Walker, Robert A. Profusek, James E. O'Bannon and Mark
E. Betzen, or any of them, its true and lawful attorneys-in-fact and
agents, each with full power of substitution and resubstitution, to do
any and all acts and things in its name and behalf, and to execute any
and all instruments for it and in its name which the said attorneys-in-
fact and agents, or any of them, may deem necessary or advisable to
enable Diamond Shamrock, Inc. to comply with the Securities Act of 1933,
as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in connection with a Registration
Statement on Form S-3, including without limitation power and authority
to sign for it such Registration Statement and power and any and all
amendments (including post-effective amendments) thereto, and to file
the same, with all exhibits thereto, and other documents in connection
therewith with the Securities and Exchange Commission, hereby ratifying
and confirming all that the said attorneys-in-fact and agents, or their
substitute or substitutes, or any one of them, shall do or cause to be
done by virtue hereof.
DIAMOND SHAMROCK, INC.
By: /s/ R. R. HEMMINGHAUS
R. R. Hemminghaus
Chairman, President, and
Chief Executive Officer
Dated: May 13, 1996
W2772.TW
Exhibit 24.6
RESOLVED that if (in the opinion of counsel to the
Corporation) required by applicable law, or otherwise
determined to be appropriate by any of such officers, the
officers of the Corporation be, and each of them hereby is,
authorized to execute and file with the Securities and
Exchange Commission (the "Commission"), on behalf of the
Corporation, one or more Registration Statements and any
amendments including post-effective amendments to any such
Registration Statement with respect to any Securities under
the Securities Act of 1933, as amended, with such changes
therein, additions thereto and deletions therefrom as the
officers, or any of them, shall approve, such approval to
be conclusively evidenced by the execution thereof, or to
take such other action, as such officers or counsel of the
Corporation deem appropriate in connection with the
offering or sale of any Securities, including without
limitation the qualification of any Indenture under the
Trust Indenture Act of 1939, as amended, provided, however,
that the maximum aggregate value of Securities authorized
to be registered pursuant to these resolutions shall be
$200,000,000;
FURTHER RESOLVED that Timothy J. Fretthold, Todd Walker,
Robert A. Profusek, James E. O'Bannon, and Wendy Dann Adato
be, and each of them hereby is, appointed as attorney-in-fact
for the Corporation and the Trust, with full power of
substitution and resubstitution, for the purpose of
executing and filing any such Registration Statement and
amendments thereto, and any such post-effective amendments,
and the officers of the Corporation and the Trustees be,
and each of them hereby is, authorized, on behalf of the
Corporation and the Trust, to execute such documents as
such officers deem to be appropriate to evidence such
appointment;
W3140.tw
CERTIFICATE OF SECRETARY
DIAMOND SHAMROCK, INC.
I, Harold D. Mallory, Secretary of Diamond Shamrock, Inc.,
a Delaware corporation (the "Company"), by execution of this
Certificate do hereby certify that the attached Resolutions are
true and correct copies of the Resolutions approved at a Board
of Directors meeting held on February 6, 1996.
IN WITNESS WHEREOF, I have hereunto signed my name this 16th
day of May, 1996.
/s/ HAROLD D. MALLORY
Harold D. Mallory, Secretary
STATE OF TEXAS )(
COUNTY OF BEXAR )(
This instrument was acknowledged before me on this the
______ day of May, 1996, by Harold D. Mallory, Secretary of
Diamond Shamrock, Inc., on behalf of said corporation.
/s/ ESTHER SALINAS
Notary Public, State of Texas
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
DIAMOND SHAMROCK, INC.
(Exact name of obligor as specified in its charter)
Delaware 74-2456753
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
9830 Colonnade Boulevard
San Antonio, Texas 78230
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
Item 1. General Information. Furnish the following information
as to the trustee:
(a) Name and address of each examining or supervising
authority to which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington D.C.
(b) Whether it is authorized to exercise corporate
trust powers.
The trustee is authorized to exercise corporate
trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an
affiliate of the trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a
part of this Statement of Eligibility.
1. A copy of the articles of association of the trustee
now in effect.*
2. A copy of the certificates of authority of the trustee
to commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of
1939, as amended, the trustee, The First National Bank of
Chicago, a national banking association organized and existing
under the laws of the United States of America, has duly caused
this Statement of Eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of Chicago
and State of Illinois, on the 13th day of May, 1996.
The First National Bank of Chicago,
Trustee
By /s/ R. D. Manella
R. D. Manella
Vice President
* Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits
bearing identical numbers in Item 12 of the Form T-1 of The First
National Bank of Chicago, filed as Exhibit 26 to the Registration
Statement on Form S-3 of The CIT Group Holdings, Inc., filed with the
Securities and Exchange Commission on February 16, 1993 (Registration
No. 33-58418).
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
May 13, 1996
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between Diamond
Shamrock, Inc. and The First National Bank of Chicago, the
undersigned, in accordance with Section 321(b) of the Trust Indenture
Act of 1939, as amended, hereby consents that the reports of examinations
of the undersigned, made by Federal or State authorities authorized to
make such examinations, may be furnished by such authorities to the
Securities and Exchange Commission upon its request therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
R. D. Manella
Vice President
<PAGE> EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/95
Address: One First National Plaza, Suite 0460 ST-BK:
City, State Zip: Chicago, IL 60670-0460 17-1630
FDIC Certificate No.: 0/3/6/1/8 FFIEC 031
Page RC-1
Consolidated Report of Condition for Insured Commercial and State-Chartered
Savings Banks for December 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
report the amount outstanding of the last business day of the quarter.
Schedule RC--Balance Sheet
<TABLE>
<CAPTION>
Dollar Amounts in C400 <-
Thousands RCFD BIL MIL THOU
<S> <C> <C> <C> <C>
ASSETS
1. Cash and
balances due
from deposi-
tory institu-
tions (from
Schedule RC-
A):
a. Noninte-
rest-
bearing
balances
and cur-
rency and
coin(1) 0081 4,003,995 1.a.
b. Interest-
bearing
balances(2) 0071 9,240,284 1.b.
2. Securities
a. Held-to-
maturity
securities
(from RC-B,
column A) 1754 0 2.a.
b. Available-
for-sale
securities
(from Sche-
dule RC-B,
column D) 1773 827,134 2.b.
3. Federal funds
sold and securi-
ties purchased
under agreements
to resell in
domestic offices
of the bank and
its Edge and
Agreement
subsidiaries,
and in IBFs:
a. Federal Funds
sold 0276 3,287,844 3.a.
b. Securities
purchased
under agree-
ments to re-
sell 0277 612,400 3.b.
4. Loans and lease
financing
receivables:
a. Loans and
leases, net
of unearned
income
(from Sche-
dule RC-C) RCFD 2122 16,463,126 4.a.
b. LESS:
Allowance
for loan
and lease
losses RCFD 3123 353,777 4.b.
c. LESS: Allo-
cated trans-
fer risk
reserve RCFD 3128 0 4.c.
d. Loans and
leases, net
of unearned
income,
allowance,
and reserve
(item 4.a
minus 4.b
and 4.c) 2125 16,109,349 4.d.
5. Assets held in
trading accounts 3545 12,379,396 5.
6. Premises and
fixed assets
(including
capitalized
leases) 2145 591,753 6.
7. Other real estate
owned (from
Schedule RC-M) 2150 8,796 7.
8. Investments in
unconsolidated
subsidiaries and
associated
companies (from
Schedule RC-M) 2130 40,560 8.
9. Customers' liabi-
lity to this bank
on acceptances
outstanding 2155 524,918 9.
10. Intangible as-
sets (from
Schedule RC-M) 2143 101,011 10.
11. Other assets
(from Schedule
RC-F) 2160 1,633,056 11.
12. Total assets
(sum of items
1 through 11) 2170 49,360,496 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE>
Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/95
Address: One First National Plaza, Suite 0460 ST-BK:
City, State Zip: Chicago, IL 60670-0460 17-1630
FDIC Certificate No.: 0/3/6/1/8 FFIEC 031
Page RC-2
LIABILITIES
<TABLE>
<CAPTION> Dollar Amounts in
Thousands Bil Mil Thou
<S> <C> <C> <C> <C>
13. Deposits:
a. In domestic
offices (sum
of totals of
columns A
and C from
Schedule
RC-E, part
1) RCON 2200 15,174,243 13.a.
(1) Nonin-
terest
bearing
(1) RCON 6631 6,217,164 13.a.(1)
(2) Inte-
rest-
bearing RCON 6636 8,957,079 13.a.(2)
b. In foreign
offices,
Edge and
Agreement
subsidia-
ries,
and IBFs
(from Sche-
dule RC-E,
part II) RCFN 2200 14,435,503 13.b.
(1) Nonin-
terest
bearing RCFN 6631 625,206 13.b.(1)
(2) Inte-
rest-
bear-
ing RCFN 6636 13,810,297 13.b.(2)
14. Federal funds
purchased and
securities
sold under
agreements
to repurchase
in domestic
offices of
the bank and
of its Edge
and Agreement
subsidiaries,
and in IBFs:
a. Federal
funds pur-
chased RCFD 0278 2,449,282 14.a.
b. Securities
sold under
agreements
to repur-
chase RCFD 0279 880,215 14.b.
15. a. Demand notes
issued to
the U.S.
Treasury RCON 2840 93,942 15.a.
b. Trading
Liabilities RCFD 3548 7,523,265 15.b.
16. Other borrowed
money:
a. With origin-
al maturity
of one year
or less RCFD 2332 1,897,370 16.a.
b. With origin-
al maturity
of more than
one year RCFD 2333 383,807 16.b.
17. Mortgage indebt-
edness and
obligations
under capita-
lized leases RCFD 2910 280,522 17.
18. Bank's liabi-
lity on accep-
tance executed
and outstanding RCFD 2920 524,918 18.
19. Subordinated
notes and
debentures RCFD 3200 1,225,000 19.
20. Other liabili-
ties (from
Schedule RC-G) RCFD 2930 1,444,364 20.
21. Total liabili-
ties (sum of
items 13
through 20) RCFD 2948 46,312,431 21.
22. Limited-Life
preferred stock
and related
surplus RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual pre-
ferred stock
and related
surplus RCFD 3838 0 23.
24. Common stock RCFD 3230 200,858 24.
25. Surplus (ex-
clude all
surplus re-
lated to pre-
ferred stock) RCFD 3839 2,320,126 25.
26.a.Undivided pro-
fits and capital
reserves RCFD 3632 519,849 26.a.
b.Net unrealized
holding gains
(losses) on
available-for-
sale securities RCFD 8434 7,315 26.b.
27. Cumulative
foreign currency
translation ad-
justments RCFD 3284 (83) 27.
28. Total equity
capital (sum of
items 23 through
27) RCFD 3210 3,048,065 28.
29. Total liabili-
ties, limited-
life preferred
stock, and
equity capital
(sum of items
21, 22, and 28) RCFD 3300 49,360,496 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number
of the statement below that best describes
the most comprehensive level of auditing work
performed for the bank by independent external Number
auditors as of any date during 1993.............RCFD 6724 N/A M.1.
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm
which submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a
certified public accounting firm which submits a report on
the consolidated holding company (but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
