As filed with the Securities and Exchange Commission on December 31, 1996
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
ULTRAMAR DIAMOND SHAMROCK CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 13-3663331
(State of Incorporation) (IRS Employer
Identification No.)
9830 Colonnade Boulevard
San Antonio, Texas 78230
(Address of principal executive offices)
DIAMOND SHAMROCK, INC. 1987 LONG-TERM INCENTIVE PLAN,
DIAMOND SHAMROCK, INC. LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Patrick J. Guarino, Esq.
Executive Vice President, General Counsel, and Secretary
Ultramar Diamond Shamrock Corporation
9830 Colonnade Boulevard
San Antonio, Texas 78230
(210) 641-6488
(Name, address and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Title of Amount Proposed Proposed Amount of
securities to to be maximum maximum registration
be registered(1) registered offering aggregate fee
price per offering
share price
Common Stock, 17,340 $31.188(2) $ 540,792(2) $ 164(2)
par value $.01
per share 802,325 (3) $19,956,741(3) $6,048(3)
___________________________________________________________________________
(1) Includes associated rights to purchase Ultramar Diamond Shamrock
Corporation Common Stock exercisable only upon the occurrence of certain
events.
(2) Pursuant to Rule 457(h) and Rule 457(c), the proposed maximum offering
price per share and the registration fee are based on the reported average
of the high and low prices for Ultramar Diamond Shamrock Corporation Common
Stock on the New York Stock Exchange on December 23, 1996.
(3) Pursuant to Rule 457(h), the proposed maximum offering price per share
and the registration fee are based upon the prices at which options may be
exercised.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed with the Securities and Exchange
Commission (the "Commission") by Ultramar Diamond Shamrock
Corporation, formerly Ultramar Corporation (the "Company") are
incorporated herein by reference:
(a) The Company's 1995 Annual Report on Form 10-K for the
fiscal year ended December 31, 1995, filed pursuant to Section 13(a)
of the Securities Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's Quarterly Reports on (1) Form 10-Q for the
quarter ended March 31, 1996, (2) on Form 10-Q/A for the quarter
ended June 30, 1996, and (3) on Form 10-Q for the quarter ended
September 30, 1996;
(c) The Company's Current Report on Form 8-K dated September
22, 1996, and the Company's two Current Reports on Form 8-K, both
dated December 3, 1996; and
(d) The description of Common Stock of the Company contained
in the Company's Registration Statement on Form S-4 (File No. 333-14807).
All documents filed by the Company pursuant to Sections 13(a),
13(c), 14, or 15(d) of the 1934 Act subsequent to the filing of this
Form S-8 Registration Statement (the "Registration Statement") and
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
securities then remaining unsold shall be deemed to be incorporated
by reference herein and to be a part hereof from the respective dates
of the filing of such documents.
Item 5. Interests of Named Experts and Counsel
EXPERTS
The consolidated financial statements and schedules of the
Company appearing in the Company's Annual Report on Form 10-K for the
year ended December 31, 1995, have been audited by Ernst & Young LLP,
independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference. Such consolidated
financial statements and schedules are, and audited consolidated
financial statements and schedules to be included in subsequently
filed documents will be, incorporated herein in reliance upon the
reports of Ernst & Young LLP pertaining to such consolidated financial
statements and schedules (to the extent covered by consents filed with
the Securities and Exchange Commission) given upon the authority of
such firm as experts in accounting and auditing.
The financial statements incorporated in this Registration
Statement by reference to the Company's Current Report on Form 8-K
dated December 3, 1996, which incorporated by reference portions of
Diamond Shamrock, Inc.'s Annual Report on Form 10-K/A for the year
ended December 31, 1995, 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 accounting and auditing.
LEGAL MATTERS
The validity of the shares of the Company's Common Stock being
offered hereby will be passed upon for the Company by Todd Walker,
Esq., Senior Attorney for the Company. As of December 27, 1996, Mr.
Walker beneficially owned 4,894 shares of the Common Stock of the
Company, including 423 shares which he had the right to acquire
within 60 days through the exercise of employee stock options.
Item 6. Indemnification of Directors and Officers.
The By-laws of the Company provide that the Company shall
indemnify its officers and directors to the fullest extent permitted
or required by the Delaware General Corporation Law (the "DGCL"), as
amended from time to time, provided, however, that except insofar as
the Company's By-laws provide indemnification for an officer or
director with respect to a proceeding initiated by such officer or
director to enforce rights to indemnification, officers and directors
will not be entitled to indemnification in connection with
proceedings initiated by an officer or director if the initiation of
such proceedings was not authorized by the board of directors of the
Company. Section 145 of the DGCL provides, in general, that each
director and officer of a corporation may be indemnified against
expenses (including attorneys' fees, judgments, fines, and amounts
paid in settlement) actually and reasonably incurred in connection
with the defense or settlement of any threatened, pending, or
completed legal proceedings in which he is involved by reason of the
fact that he is or was a director or officer of the Company, if he
acted in good faith and in a manner that he reasonably believed to
be in or not opposed to the best interests of the Company, and, with
respect to any criminal action or proceeding, if he had no reasonable
cause to believe that his conduct was unlawful. If the legal
proceeding, however, is by or in the right of the Company, the
director or officer may not be indemnified in respect of any claim,
issue, or matter as to which he shall have been adjudged to be liable
for negligence or misconduct in the performance of his duty to the
Company unless a court determines otherwise.
The Company's By-laws also provide for advances in certain
circumstances covering expenses incurred by an officer or director
of the Company in connection with the defense of a proceeding for
which such officer or director would be entitled to indemnity under
the Company's By-laws.
The Company's By-laws further provide that the Company may
procure and maintain insurance covering director's and officer's
liability for their actions in those capacities, whether or not the
Company would be entitled to provide indemnification for such
liability under the DGCL.
The Certificate of Incorporation of the Company provides that
the personal liability of the directors of the Company shall be
eliminated to the fullest extent permitted by applicable law. The
DGCL permits a corporation's certificate of incorporation to provide
that no director of the corporation shall be personally liable to the
corporation or its stockholders for monetary damages for any breach
of his fiduciary duty as a director; provided, however, that such
provision shall not apply to any liability of a director (1) for any
breach of a director's duty of loyalty to the corporation or its
stockholders, (2) for acts or omissions that are not in good faith
or involve intentional misconduct or a knowing violation of the law,
(3) under Section 174 of the DGCL or (4) for any transaction from
which the director derived an improper personal benefit.
The Company has entered into indemnification agreements with the
directors and certain officers of the Company providing for
indemnification on the terms set out in the By-laws of the Company.
Item 8. Exhibits.
Exhibit
Number Description
4.1 Certificate of Incorporation of the Company, as amended
through April 28, 1992 (filed as Exhibit 3.1 to the
Company's Registration Statement on Form S-1 (File No. 33-47586)
filed with the Securities and Exchange Commission
on May 1, 1992)*
4.2 Certificate of Merger of Diamond Shamrock, Inc. into the
Company, amending the Company's Certificate of
Incorporation
4.3 Certificate of Designations of the Company's 5% Cumulative
Convertible Preferred Stock
4.4 By-laws of the Company (filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (File No. 33-47586)
filed with the Securities and Exchange Commission
on May 1, 1992))*
4.5 Secretary's Certificate dated July 22, 1993, amending the
By-laws of the Company
4.6 Secretary's Certificate dated December 3, 1996, amending
the By-laws of the Company
4.7 Rights Agreement, dated June 25, 1992, between the Company
and Registrar and Transfer Company (as successor rights
agent to First City, Texas-Houston, National Association),
as amended by the First Amendment dated October 26, 1992,
the Amendment dated May 10, 1994 and the Amendment dated
September 22, 1996 (incorporated by reference to Exhibit
4.2 of the Company's Registration Statement on Form S-1
(File No. 33-47586), Exhibit 4.2 of the Company's Quarterly
Report on Form 10-Q for the quarter ended September 30,
1992, Exhibit 4.3 to the Company's Annual Report on Form
10-K for the year ended December 31, 1994 and Exhibit 4.1
of the Company's Current Report on Form 8-K dated September
25, 1996)*
4.8 Form of the Company's Common Stock Certificate
5.1 Opinion regarding legality of securities being issued
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Todd Walker, Esq. (included in Exhibit 5.1)
24.1 Power of Attorney of the Company
24.2 Powers of Attorney of Directors and Officers of the Company
24.3 Certificate regarding resolutions of the Board of Directors
of the Company
24.4 Agreement and Plan of Merger, dated as of September 22,
1996, between the Company and Diamond Shamrock, Inc.
(incorporated by reference to Appendix A to the Joint Proxy
Statement/Prospectus included in the Company's Registration
Statement on Form S-4 (File No. 333-14807))*.
99.1 Diamond Shamrock, Inc. 1987 Long Term Incentive Plan (Exhibit 4.1
to Diamond Shamrock, Inc.'s Form S-8 Registration Statement No.
33-15268)*
99.2 Diamond Shamrock, Inc. Long Term Incentive Plan (Exhibit 4.1 to
Diamond Shamrock, Inc.'s Form S-8 Registration Statement No.
33-59025)*
* Each document marked by an asterisk is incorporated herein by
reference to the designated document previously filed with the
Commission.
Item 9. Undertakings.
A. The Company hereby undertakes
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement
(a) to include any prospectus required by Section 10(a) (3) of the
Securities Act of 1933, as amended (the "1933 Act"), (b) to reflect
in the prospectus any facts or events arising after the effective
date of this Registration Statement (or the most recent post-effective
amendment hereof) which, individually or in the aggregate,
represents a fundamental change in the information set forth in this
Registration Statement, and (c) to include any material information
with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such
information in this Registration Statement;
(2) that, for the purpose of determining any liability under
the 1933 Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
B. The Company hereby undertakes that, for purposes of determining
any liability under the 1933 Act, each filing of the Company's annual
report pursuant to Section 13(a) or Section 15(d) of the 1934 Act
that is incorporated by reference in the Registration Statement shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the
1933 Act may be permitted to directors, officers and controlling
persons of the Company pursuant to the foregoing provisions or
otherwise, the Company is advised that, in the opinion of the
Commission, such indemnification is against public policy as
expressed in the 1933 Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company in the
successful defense of any action, suit or proceeding) is asserted by
a director, officer or controlling person in connection with the
securities being registered, the Company will, unless in the opinion
of counsel for the Company the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question
whether such indemnification by it is against public policy as
expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the 1933 Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Antonio, Texas, on the
31st day of December, 1996.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: *R. R. Hemminghaus
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the 1933 Act, this Registration
Statement has been signed by the following persons in the capacities
and on the date indicated:
Signature Title Date
*R. R. Hemminghaus Chairman of the Board December 31, 1996
*H. Pete Smith Chief Financial Officer December 31, 1996
(Principal Financial
Officer) Chief Accounting
Officer (Principal
Accounting Officer), and
Executive Vice President
*Byron Allumbaugh Director December 31, 1996
*E. Glenn Biggs Director December 31, 1996
*W. E. Bradford Director December 31, 1996
*H. Frederick Christie Director December 31, 1996
*W. H. Clark Director December 31, 1996
*Bob Marbut Director December 31, 1996
*Katherine D. Ortega Director December 31, 1996
*Madeleine Saint-Jacques Director December 31, 1996
*C. Barry Schaefer Director December 31, 1996
*Todd Walker, by signing his name hereto, does hereby sign this
Registration Statement on Form S-8 on behalf of Ultramar Diamond
Shamrock Corporation and each of the above-named officers and
directors of Ultramar Diamond Shamrock Corporation pursuant to powers
of attorney executed on behalf of the Company and each of such
officers and directors.
By: /s/ Todd Walker
Attorney-in-fact
December 31, 1996
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Certificate of Incorporation of the Company, as
amended through April 28, 1992 (filed as Exhibit 3.1
to the Company's Registration Statement on Form S-1
(File No. 33-47586) filed with the Securities and
Exchange Commission on May 1, 1992)*
4.2 Certificate of Merger of Diamond Shamrock, Inc. into
the Company, amending the Company's Certificate of
Incorporation
4.3 Certificate of Designations of the Company's 5%
Cumulative Convertible Preferred Stock
4.4 By-laws of the Company (filed as Exhibit 3.2 to the
Company's Registration Statement on Form S-1 (File
No. 33-47586) filed with the Securities and Exchange
Commission on May 1, 1992))*
4.5 Secretary's Certificate dated July 22, 1993, amending
the By-laws of the Company
4.6 Secretary's Certificate dated December 3, 1996,
amending the By-laws of the Company
4.7 Rights Agreement, dated June 25, 1992, between the
Company and Registrar and Transfer Company (as
successor rights agent to First City, Texas-Houston,
National Association), as amended by the First
Amendment dated October 26, 1992, the Amendment dated
May 10, 1994 and the Amendment dated September 22,
1996 (incorporated by reference to Exhibit 4.2 of the
Company's Registration Statement on Form S-1 (File
No. 33-47586), Exhibit 4.2 of the Company's Quarterly
Report on Form 10-Q for the quarter ended September
30, 1992, Exhibit 4.3 to the Company's Annual Report
on Form 10-K for the year ended December 31, 1994 and
Exhibit 4.1 of the Company's Current Report on Form
8-K dated September 25, 1996)*
4.8 Form of the Company's Common Stock Certificate
5.1 Opinion regarding legality of securities being issued
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Todd Walker, Esq. (included in Exhibit
5.1)
24.1 Power of Attorney of the Company
24.2 Powers of Attorney of Directors and Officers of the
Company
24.3 Certificate regarding resolutions of the Board of
Directors of the Company
24.4 Agreement and Plan of Merger, dated as of September
22, 1996, between the Company and Diamond Shamrock,
Inc. (incorporated by reference to Appendix A to the
Joint Proxy Statement/Prospectus included in the
Company's Registration Statement on Form S-4 (File
No. 333-14807))*.
99.1 Diamond Shamrock, Inc. 1987 Long Term Incentive Plan
(Exhibit 4.1 to Diamond Shamrock, Inc.'s Form S-8
Registration Statement No. 33-15268)*
99.2 Diamond Shamrock, Inc. Long Term Incentive Plan (Exhibit 4.1
to Diamond Shamrock, Inc.'s Form S-8 Registration Statement
No. 33-59025)*
* Each document marked by an asterisk is incorporated herein by
reference to the designated document previously filed with the
Commission.
W5004.TW
Exhibit 4.2
CERTIFICATE OF MERGER
OF
DIAMOND SHAMROCK, INC.
INTO
ULTRAMAR CORPORATION
UNDER SECTION 251 OF THE
GENERAL CORPORATION LAW
OF THE STATE OF DELAWARE
Pursuant to Section 251 of the General Corporation
Law of the State of Delaware (the "GCL"), ULTRAMAR
CORPORATION, a Delaware corporation ("ULTRAMAR"), hereby
certifies the following information relating to the merger
of DIAMOND SHAMROCK, INC., a Delaware corporation
("DIAMOND"), with and into ULTRAMAR (the "Merger"):
FIRST: The names and states of incorporation of
ULTRAMAR and DIAMOND, which are the constituent corporations
in the Merger (the "Constituent Corporations"), are:
Name State
ULTRAMAR CORPORATION Delaware
DIAMOND SHAMROCK, INC. Delaware
SECOND: The Agreement and Plan of Merger (the
"Merger Agreement"), dated as of September 22, 1996 between
ULTRAMAR and DIAMOND, setting forth the terms and conditions
of the Merger, has been approved, adopted, certified,
executed and acknowledged by each of the Constituent
Corporations in accordance with Section 251 of the GCL.
THIRD: The name of the corporation surviving the
Merger is Ultramar Corporation which name shall be changed
in the Merger to Ultramar Diamond Shamrock Corporation.
FOURTH: The certificate of incorporation of
ULTRAMAR shall be amended as follows (and as so amended
shall be the certificate of incorporation of the corporation
surviving the Merger until thereafter changed or amended as
provided therein or by applicable law):
a. by deleting article FIRST in its entirety and
by inserting the following in its place:
"FIRST: The name of the corporation is Ultramar
Diamond Shamrock Corporation (hereinafter the
"Corporation")."
b. by deleting Section 1 of Article FOURTH in its
entirety and by inserting the following in its place:
"(1) The total number of shares which the
Corporation shall have authority to issue is
275,000,000 shares, consisting of (a) 250,000,000 shares of
common stock, par value $.01 per share (the "Common Stock"),
and (b) 25,000,000 shares of preferred stock, par value $.01
per share (the "Preferred Stock")."
c. by adding a new Article ELEVENTH, immediately
following Article TENTH, which reads in its entirety as
follows:
"ELEVENTH: With respect to any action required or
permitted to be taken by the stockholders of the
Corporation at any annual or special meeting, unless
required by law or determined by the chairman of the
meeting to be advisable, the vote on any matter,
including the election of directors, need not be by
written ballot."
FIFTH: An executed Merger Agreement is on file at
9830 Colonnade Boulevard, San Antonio, Texas 78230 which is
the address of an office of the corporation surviving the
Merger.
SIXTH: A copy of the Merger Agreement will be
furnished by the corporation surviving the Merger, on
request and without cost, to any stockholder of either of
the Constituent Corporations.
IN WITNESS WHEREOF, this Certificate of Merger has been executed on
this 3rd day of December, 1996.
ULTRAMAR CORPORATION
By: /s/ PATRICK GUARINO
Name: Patrick Guarino
Title: Senior Vice President,
General Counsel and
Secretary
w5017.tw
Exhibit 4.3
ULTRAMAR CORPORATION
CERTIFICATE OF DESIGNATIONS
5% CUMULATIVE CONVERTIBLE PREFERRED STOCK
(Pursuant to Section 151(g) of the General
Corporation Law of the State of Delaware)
Ultramar Corporation, a corporation organized and
existing under the laws of the State of Delaware, does
hereby certify that:
FIRST: Ultramar Corporation (the "Corporation")
was incorporated in the State of Delaware on April 28, 1992;
SECOND: Pursuant to authority conferred upon the
Board of Directors under the Certificate of Incorporation of
the Corporation ("Certificate") and the provisions of
Sections 141 and 151 of the General Corporation Law of the
State of Delaware, the Board of Directors of the Corporation
acting at the Board of Directors' meeting held on
December 3, 1996, at which a quorum was at all times present
and voting, adopted resolutions, which are in full force and
effect and are not in conflict with any provisions of the
Corporation's Certificate or its By-laws, approving this
certificate of designations and authorizing the undersigned
to execute and deliver this certificate of designations
setting forth the number, terms, designation, relative
rights, preferences and limitations of a series of preferred
stock, $.01 par value, of the Corporation as follows:
(a) Designation. There is hereby created a class
of preferred stock, $.01 par value, of this Corporation to
be known as "5% Cumulative Convertible Preferred Stock" (the
"5% Preferred Stock"). The number of shares of 5% Preferred
Stock authorized for issuance is 1,725,000.
(b) Stated Capital. The amount to be represented
in stated capital at all times for each share of 5%
Preferred Stock shall be $.01.
(c) Rank. All 5% Preferred Stock shall rank
prior to all of the Corporation's Common Stock, $.01 par
value (the "Common Stock"), now or hereafter issued, both as
to payment of dividends and as to distributions of assets
upon liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary.
(d) Dividends. The holders of shares of 5%
Preferred Stock shall be entitled to receive dividends at
the rate of $2.50 per annum per share, and no more, which
shall be fully cumulative and shall accrue without interest.
Dividends will be payable in cash quarterly on March 15,
June 15, September 15, and December 15 of each year
commencing March 15, 1997 (except that if any such date is a
Saturday, Sunday or legal holiday then such dividend shall
be payable on the next day that is not a Saturday, Sunday or
legal holiday) to holders of record as they appear on the
stock books of the Corporation on the applicable record
date, which shall be not more than 60 nor less than 10 days
preceding the payment date for such dividends, as are fixed
by the Board of Directors, but only when, as and if declared
by the Board of Directors out of funds at the time legally
available for the payment of dividends. The amount of
dividends payable per share of 5% Preferred Stock for each
quarterly dividend period shall be computed by dividing the
annual dividend amount per share by four. The amount of
dividends payable for any period shorter than a full
quarterly dividend period shall be computed on the basis of
a 360-day year of twelve 30-day months. No dividends or
other distributions, other than dividends payable solely in
shares of Common Stock or other capital stock of the
Corporation ranking junior as to dividends to the 5%
Preferred Stock ("Junior Dividend Stock"), shall be paid or
set apart for payment on, and no purchase, redemption or
other acquisition shall be made by the Corporation of, any
shares of Common Stock or Junior Dividend Stock unless and
until all accrued and unpaid dividends on the 5% Preferred
Stock shall have been paid or declared and set apart for
payment.
If at any time the Corporation shall have failed
to pay, or declare and set apart for payment, in full any
accrued dividend on any capital stock of the Corporation
ranking senior as to dividends to the 5% Preferred Stock
("Senior Dividend Stock"), in whole or in part, no dividend
shall be paid or declared and set apart for payment on the
5% Preferred Stock unless and until all accrued and unpaid
dividends (plus interest, if required) with respect to the
Senior Dividend Stock shall have been paid or declared and
set apart for payment, without interest. No full cumulative
dividends shall be paid or declared and set apart for
payment on any class or series of the Corporation's capital
stock ranking, as to dividends, on a parity with the 5%
Preferred Stock (the "Parity Dividend Stock") for any period
unless full cumulative dividends have been, or
contemporaneously are, paid or declared and set apart for
such payment on the 5% Preferred Stock for all dividend
payment periods terminating on or prior to the date of
payment of such full cumulative dividends. No dividends
shall be paid or declared and set apart for payment on the
5% Preferred Stock for any period unless full cumulative
dividends have been, or contemporaneously are, paid or
declared and set apart for payment on the Parity Dividend
Stock for all dividend periods terminating on or prior to
the date of payment of such dividends on the 5% Preferred
Stock. When dividends are not paid in full upon the 5%
Preferred Stock and the Parity Dividend Stock, all dividends
paid or declared and set aside for payment upon shares of 5%
Preferred Stock and the Parity Dividend Stock shall be paid
or declared and set aside for payment pro rata so that the
amount of dividends paid or declared and set aside for
payment per share on the 5% Preferred Stock and the Parity
Dividend Stock shall in all cases bear to each other the
same ratio that accrued and unpaid dividends per share on
the shares of 5% Preferred Stock and the Parity Dividend
Stock bear to each other.
Any reference to "distribution" contained in this
Paragraph (d) shall not be deemed to include any stock
dividend or distributions made in connection with any
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary.
(e) Liquidation Preference. In the event of a
liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, the holders of 5%
Preferred Stock shall be entitled to receive out of the
assets of the Corporation, whether such assets are stated
capital or surplus of any nature, an amount equal to the
dividends accrued and unpaid thereon as of the date of final
distribution to such holders, whether or not declared,
without interest, and a sum equal to $50.00 per share, and
no more, before any payment shall be made or any assets
distributed to the holders of Common Stock or any other
class or series of the Corporation's capital stock ranking
junior as to liquidation rights to the 5% Preferred Stock
(the "Junior Liquidation Stock"); provided, however, that
such rights shall accrue to the holders of 5% Preferred
Stock only in the event that the Corporation's payments with
respect to the liquidation preferences of the holders of
capital stock of the Corporation ranking senior as to
liquidation rights to the 5% Preferred Stock (the "Senior
Liquidation Stock") are fully met. The entire assets of the
Corporation available for distribution after the liquidation
preferences of the Senior Liquidation Stock are fully met
shall be distributed ratably among the holders of the 5%
Preferred Stock and any other class or series of the
Corporation's capital stock which may hereafter be created
having parity as to liquidation rights with the 5% Preferred
Stock in proportion to the respective preferential amounts
to which each is entitled (but only to the extent of such
preferential amounts). Neither a consolidation or merger of
the Corporation with another corporation nor a sale or
transfer of all or part of the Corporation's assets for
cash, securities or other property will be considered a
liquidation, dissolution or winding up of the Corporation.
(f) Redemption at Option of the Corporation. The
Corporation, at its option, may at any time prior to
June 14, 2000, redeem all or any part of the 5% Preferred
Stock on any date set by the Board of Directors of the
Corporation by issuing for each share of 5% Preferred Stock
being redeemed such number of shares of Common Stock as are
equal to $50.00 divided by the Conversion Price (as defined
in Paragraph (h) below), and by paying an amount in cash
equal to accrued and unpaid dividends to the date fixed for
redemption. The Corporation may exercise such option only
if, for 20 of any 30 consecutive trading days, including the
last trading day of such period, the Closing Price (as
defined in Paragraph (h) below) of the Common Stock exceeds
130% of the Conversion Price of the Common Stock in effect
on the last trading day of such 30-trading-day period. To
exercise its redemption right under this Paragraph (f), the
Corporation must issue a press release announcing the
redemption prior to 9:00 a.m. New York City time on the
second trading day after the end of any such 30-consecutive-
trading day period described in the preceding sentence. On
or after June 15, 2000, the 5% Preferred Stock is redeemable
for cash, in whole or in part, at any time at the option of
the Corporation, at a redemption price of $50.00 per share,
plus accrued and unpaid dividends to the date fixed for
redemption.
If the Corporation intends to redeem less than all
of the then-outstanding shares of 5% Preferred Stock, the
Corporation shall designate by lot, or in such other manner
as the Board of Directors may determine, the shares to be
redeemed, or shall effect such redemption pro rata.
Notwithstanding the foregoing, the Corporation shall not
redeem less than all of the 5% Preferred Stock at any time
outstanding until all dividends accrued and in arrears upon
all 5% Preferred Stock then outstanding shall have been
paid.
Not more than 60 nor less than 15 days prior to
the redemption date, and, if the redemption is to occur on
or prior to June 14, 2000, not more than four days after the
Corporation issues the press release required under the
first paragraph of this Paragraph (f), notice by first class
mail, postage prepaid, shall be given to the holders of
record of the 5% Preferred Stock to be redeemed, addressed
to such stockholders at their last addresses as shown on the
stock books of the Corporation. Each such notice of
redemption shall specify the date fixed for redemption; the
redemption price (if the 5% Preferred Stock is to be
redeemed for cash); the number of shares of Common Stock to
be delivered (if the 5% Preferred Stock is to be redeemed
for Common Stock); the place or places for payment or
delivery; that payment or delivery of the Common Stock will
be made upon presentation and surrender of the certificates
representing shares of 5% Preferred Stock being redeemed;
that accrued but unpaid dividends to the date fixed for
redemption will be paid on the date fixed for redemption;
that (if the 5% Preferred Stock is to be redeemed for Common
Stock) a cash adjustment for fractional shares of Common
Stock will be paid on the date fixed for redemption; that
conversion rights with respect to the 5% Preferred Stock
will expire on the close of business on the redemption date;
and that on and after the redemption date, dividends will
cease to accrue on such shares. If a dividend with respect
to the 5% Preferred Stock has been declared by the Board of
Directors of the Corporation and if the redemption date with
respect to a redemption of 5% Preferred Stock for either
cash or Common Stock falls after the dividend record date
established by the Board of Directors of the Corporation
with respect to such dividend, but prior to the related
dividend payment date, the record holders of the 5%
Preferred Stock on such record date will be entitled to
receive the dividend payable on the 5% Preferred Stock,
notwithstanding the redemption thereof.
Any notice which is mailed as herein provided
shall be conclusively presumed to have been duly given,
whether or not the holder of the 5% Preferred Stock receives
such notice; and failure to give such notice by mail, or any
defect in such notice, to the holders of any shares
designated for redemption shall not affect the validity of
the proceedings for the redemption of any other shares of 5%
Preferred Stock. On or after the date fixed for redemption,
as stated in such notice, each holder of the shares of 5%
Preferred Stock called for redemption shall surrender the
certificate evidencing such shares to the Corporation at the
place designated in such notice and shall thereupon be
entitled to receive payment of the redemption price or
delivery of shares of Common Stock deliverable upon
redemption, as the case may be. If less than all shares
represented by any such surrendered certificate are
redeemed, a new certificate shall be issued representing the
unredeemed shares. If on the date fixed for redemption a
sufficient number of shares of Common Stock, if applicable,
and the funds necessary for the redemption shall be
available therefor and shall have been irrevocably deposited
with the transfer agent for the 5% Preferred Stock, then,
notwithstanding that the certificates evidencing any shares
of 5% Preferred Stock so called for redemption shall not
have been surrendered, dividends with respect to the shares
of 5% Preferred Stock so called for redemption shall cease
to accrue after the date fixed for redemption, such shares
shall no longer be deemed outstanding, and all rights
whatsoever with respect to the shares so called for
redemption (except the right of the holders to receive any
Common Stock issuable and any cash payable, without
interest, upon surrender of their certificates therefor)
shall terminate. Shares of 5% Preferred Stock redeemed by
the Corporation will be restored to the status of authorized
but unissued shares of preferred stock, without designation
as to class, and may thereafter be issued, but not as shares
of 5% Preferred Stock.
No fractional shares of Common Stock shall be
issued upon redemption of 5% Preferred Stock for Common
Stock, and in lieu of any fraction of a share of Common
Stock which would otherwise be issuable in respect of the
aggregate number of such shares of 5% Preferred Stock
redeemed at one time from the same record holder, the
Corporation shall pay in cash (rounded to the nearest cent)
an amount equal to the product of (i) the Closing Price of a
share of Common Stock on the last trading day with respect
to the Common Stock before the redemption date, and
(ii) such fraction of a share.
The Corporation shall not be required to pay any
tax which may be payable in respect of any transfer involved
in the issue and delivery upon redemption of shares of 5%
Preferred Stock for shares of Common Stock in a name other
than that of the record holder of the shares of the 5%
Preferred Stock being redeemed and the Corporation shall not
be required to issue or deliver any such shares unless and
until the person or persons requesting the issuance thereof
shall have paid to the Corporation the amount of any such
tax or shall have established to the satisfaction of the
Corporation that such tax has been paid.
(g) No Sinking Fund. The shares of 5% Preferred
Stock shall not be subject to the operation of a purchase,
retirement or sinking fund.
(h) Conversion. The holders of the 5% Preferred
Stock may, upon surrender of the certificates therefor,
convert any or all of their shares of 5% Preferred Stock
into fully paid and nonassessable shares of Common Stock and
such other securities and property as hereafter provided at
any time after issuance thereof, but not later than the
close of business on the date, if any, fixed for the
redemption thereof in any notice of redemption given
pursuant to the provisions of Paragraph (f) hereof unless
there is a default in payment of cash, or the delivery of
Common Stock issuable, in connection with such redemption in
which case such conversion may be effected any time prior to
a subsequent redemption date on which such payment of cash
and/or delivery of Common Stock is made in full. Each share
of 5% Preferred Stock shall be convertible at the office of
the transfer agent for the 5% Preferred Stock, and at such
other office or offices, if any, as the Board of Directors
of the Corporation may designate, into the number of fully
paid and nonassessable shares of Common Stock (calculated as
to each conversion to the nearest 1/100th of a share)
obtained by dividing $50.00 by the Conversion Price in
effect at the time of conversion. Shares of 5% Preferred
Stock may be converted into full shares of Common Stock at
the initial conversion price of $25.98 per share of Common
Stock, subject to adjustment as hereinafter provided (the
"Conversion Price"). No adjustment shall be made in respect
of cash dividends on Common Stock or 5% Preferred Stock that
may be accrued and unpaid at the date of surrender for
conversion. Notwithstanding anything in this Paragraph (h)
to the contrary, no change in the Conversion Price shall
actually be made until the cumulative effect of the
adjustments called for by this Paragraph (h) since the date
of the last change in the Conversion Price would change the
Conversion Price by more than 1%. However, once the
cumulative effect would result in a change of more than 1%,
then the Conversion Price shall actually be changed to
reflect all adjustments called for by this Paragraph (h) and
not previously made. Notwithstanding anything in this
Paragraph (h) to the contrary, no change in the Conversion
Price shall be made which would result in a Conversion Price
of less than the par value of the Common Stock.
The right of the holders of 5% Preferred Stock to
convert their shares shall be exercised by surrendering for
such purpose to the Corporation or its agent, as provided
above, certificates representing all shares to be converted,
duly endorsed in blank or accompanied by proper instruments
of transfer. The Corporation shall not be required to pay
any tax which may be payable in respect of any transfer
involved in the issue and delivery upon conversion of shares
of 5% Preferred Stock for shares of Common Stock or other
securities or property in a name other than that of the
recordholder of the shares of 5% Preferred Stock being
converted and the Corporation shall not be required to
issue or deliver any such shares of Common Stock or other
securities or property unless and until the person or
persons requesting the issuance thereof shall have paid
to the Corporation the amount of any such tax or shall
have established to the satisfaction of the Corporation
that such tax has been paid.
A number of shares of authorized but unissued
Common Stock sufficient to provide for the conversion of the
5% Preferred Stock outstanding upon the basis herein
provided shall at all times be reserved by the Corporation,
free from preemptive rights, for such conversion, subject to
the provisions of the next succeeding paragraph. If the
Corporation shall issue any securities or make any change in
its capital structure which would change the Conversion
Price of the Common Stock into which each share of the 5%
Preferred Stock is convertible as herein provided, the
Corporation shall at the same time also make proper
provision so that thereafter there shall be a sufficient
number of shares of Common Stock authorized and reserved,
free from preemptive rights, for conversion of the
outstanding 5% Preferred Stock at the new Conversion Price.
In case of any consolidation or merger of the
Corporation with any other corporation (other than a wholly
owned subsidiary of the Corporation), or in case of any sale
or transfer of all or substantially all of the assets of the
Corporation, or in the case of any share exchange pursuant
to which all of the outstanding shares of Common Stock are
converted into other securities or property, the Corporation
shall make appropriate provision or cause appropriate
provision to be made so that holders of each share of 5%
Preferred Stock then outstanding shall have the right
thereafter to convert such share of 5% Preferred Stock into
the kind and amount of shares of stock and other securities
and property receivable upon such consolidation, merger,
sale, transfer or share exchange by a holder of the number
of shares of Common Stock into which such share of 5%
Preferred Stock might have been converted immediately prior
to the effective date of such consolidation, merger, sale,
transfer or share exchange. If in connection with any such
consolidation, merger, sale, transfer or share exchange,
each holder of shares of Common Stock is entitled to elect
to receive either securities, cash or other assets upon
completion of such transaction, the Corporation shall
provide or cause to be provided to each holder of 5%
Preferred Stock the right to elect the securities, cash or
other assets into which the 5% Preferred Stock held by such
holder shall be convertible after completion of any such
transaction on the same terms and subject to the same
conditions applicable to holders of the Common Stock
(including, without limitation, notice of the right to
elect, limitations on the period in which such election
shall be made and the effect of failing to exercise the
election). The Corporation shall not effect any such
transaction unless the provisions of this paragraph have
been complied with. The above provisions shall similarly
apply to successive consolidations, mergers, sales,
transfers or share exchanges.
Upon the surrender of certificates representing
shares of 5% Preferred Stock, the person converting such
shares shall be deemed to be the holder of record of the
Common Stock issuable upon such conversion and all rights
with respect to the shares surrendered shall forthwith
terminate except the right to receive the Common Stock or
other securities, cash or other assets as herein provided.
No fractional shares of Common Stock shall be
issued upon conversion of 5% Preferred Stock but, in lieu of
any fraction of a share of Common Stock which would
otherwise be issuable in respect of the aggregate number of
such shares of 5% Preferred Stock surrendered for conversion
at one time by the same holder, the Corporation shall pay in
cash an amount equal to the product of (i) the Closing Price
of a share of Common Stock on the last trading day before
the conversion date and (ii) such fraction of a share.
For the purposes of any computation pursuant to
this Paragraph (h), the "Current Market Price" per share of
the Common Stock shall be deemed to be the average daily
Closing Prices of the Common Stock for the 30 consecutive
trading days commencing 45 trading days before the date to
which reference is made in subparagraphs (1) or (2) below.
The "Closing Price" for each trading day shall be the last
reported sales price regular way or, in case no sale takes
place on such day, the average of the closing bid and asked
prices regular way on such day, in either case as reported
on the New York Stock Exchange ("NYSE") Composite Tape, or
if the Common Stock is not listed or admitted to trading on
the NYSE, on the principal national securities exchange on
which the Common Stock is listed or admitted to trading, or
if not listed or admitted to trading on any national
securities exchange, the average of the high bid and low
asked prices on such day as reported by the National
Association of Securities Dealers, Inc. through NASDAQ, or
if the National Association of Securities Dealers, Inc.
through NASDAQ shall not have reported any bid and asked
prices for the Common Stock on such day, the average of the
bid and asked prices for such day as furnished by any NYSE
member firm selected from time to time by the Corporation
for such purpose, or if no such bid and asked prices can be
obtained from any such firm, the fair market value of one
share of the Common Stock on such day as determined in good
faith by the Board of Directors of the Corporation.
The Conversion Price shall be adjusted from time
to time under certain circumstances, subject to the
provisions of the last three sentences of the first
paragraph of this Paragraph (h) as follows:
(1) In case the Corporation shall (w) pay a
dividend or make a distribution on its Common Stock in
shares of its capital stock, (x) subdivide its
outstanding Common Stock into a greater number of
shares, (y) combine the shares of its outstanding
Common Stock into a smaller number of shares, or
(z) issue by reclassification of its Common Stock any
shares of its capital stock, then in each such case the
Conversion Price in effect immediately prior thereto
shall be proportionately adjusted so that the holder of
any 5% Preferred Stock thereafter surrendered for
conversion shall be entitled to receive, to the extent
permitted by applicable law, the number and kind of
shares of capital stock of the Corporation which he
would have owned or have been entitled to receive after
the happening of such event had the 5% Preferred Stock
held by such holder been converted immediately prior to
the record date (or if no record date has been
established in connection with such event, the
effective date) for such action. An adjustment
pursuant to this subparagraph (1) shall become
effective immediately after the record date in the
case of a stock dividend or distribution and shall
become effective immediately after the effective date
in the case of a subdivision, combination or
reclassification.
(2) In case the Corporation shall issue rights or
warrants to all holders of the Common Stock entitling
such holders to subscribe for or purchase Common Stock
at a price per share less than the Current Market Price
per share of the Common Stock on the record date
referred to below, then in each such case the
Conversion Price in effect on such record date shall be
adjusted in accordance with the formula:
O + N
C' = C divided by O + N x P
M
where
C' = the adjusted Conversion Price.
C = the current Conversion Price.
O = the number of shares of Common Stock outstanding
on the record date.
N = the number of additional shares of Common Stock
offered.
P = the offering price per share of the additional
shares.
M = the Current Market Price per share of Common Stock
on the record date.
Such adjustment shall become effective immediately
after the record date for the determination of
stockholders entitled to receive such rights or
warrants. If any or all such rights or warrants are
not so issued or expire or terminate before being
exercised, the Conversion Price then in effect shall be
appropriately readjusted.
Except as otherwise provided above in this
Paragraph (h), no adjustment in the Conversion Price shall
be made in respect of any conversion for share distributions
or dividends theretofore declared and paid or payable on the
Common Stock.
Whenever the Conversion Price is adjusted as
herein provided, the Corporation shall send to the transfer
agent for the 5% Preferred Stock and to the principal
securities exchange, if any, on which the 5% Preferred Stock
is traded, a statement signed by the Chairman of the Board,
the Vice-Chairman of the Board, the Chief Executive Officer,
the President, the Chief Operating Officer or any Vice
President of the Corporation and by its Treasurer or its
Secretary stating the adjusted Conversion Price determined
as provided in this Paragraph (h) and any adjustment so
evidenced, given in good faith, shall be binding upon all
stockholders of the Corporation and upon the Corporation.
Whenever the Conversion Price is adjusted, the Corporation
will give notice by mail stating the adjustment and the
Conversion Price at the time of, and together with, the next
dividend payment to holders of record of 5% Preferred Stock.
Notwithstanding the foregoing notice provisions, failure of
the Corporation to give such notice or a defect in such
notice shall not affect the Corporation's obligation to
adjust the Conversion Price as provided herein.
Whenever the Corporation shall propose to take any
of the actions specified in the third paragraph or in
subparagraphs (1) or (2) of the eighth paragraph of this
Paragraph (h) which would result in any adjustment in the
Conversion Price under this Paragraph (h), the Corporation
shall cause a notice to be mailed at least 15 days prior to
the date on which the books of the Corporation will close or
on which record will be taken for such action, to the
holders of record of the outstanding 5% Preferred Stock on
the date of such notice. Such notice shall specify the
action proposed to be taken by the Corporation and the date
as of which holders of record of the Common Stock shall
participate in any such actions or be entitled to exchange
their Common Stock for securities or other property, as the
case may be. Failure to mail the notice or defect in it
shall not affect the validity of the transaction.
Notwithstanding any other provision of this
Paragraph (h), no adjustment in the Conversion Price need be
made (i) for a transaction referred to in subparagraphs (1)
or (2) of the eighth paragraph of this Paragraph (h) if
holders of 5% Preferred Stock are to participate in the
transaction on a basis and with notice that the Board of
Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Common Stock
participate in the transaction; (ii) for sales of Common
Stock pursuant to a plan for reinvestment of dividends and
interest or pursuant to any employee benefit plan adopted by
the Corporation; or (iii) for a change in par value of the
Common Stock.
The Corporation from time to time may decrease the
Conversion Price by any amount for any period of time if the
period is at least 20 days and if the decrease is
irrevocable during the period. Whenever the Conversion
Price is decreased, the Corporation shall mail to holders of
record of 5% Preferred Stock a notice of the decrease. The
Corporation shall mail the notice at least 15 days before
the date the decreased Conversion Price takes effect. The
notice shall state the decreased Conversion Price and the
period in which it will be in effect. A decrease of the
Conversion Price does not change or adjust the Conversion
Price otherwise in effect for purposes of subparagraphs (1)
or (2) of the eighth paragraph of this Paragraph (h).
(i) Voting Rights. The holders of 5% Preferred
Stock will not have any voting rights except as set forth
below or as otherwise from time to time required by law.
Whenever dividends on the 5% Preferred Stock or any other
class or series of Parity Dividend Stock shall be in arrears
in an amount equal to at least six quarterly dividends
(whether or not consecutive), the holders of the 5%
Preferred Stock (voting separately as a class with all other
affected classes or series of the Parity Dividend Stock upon
which like voting rights have been conferred and are
exercisable) will be entitled to vote for and elect two
directors of the Corporation (which directors shall be in
addition to those directors then serving on the Board of
Directors to the extent that the number of directors
permitted by the Certificate is greater than the number of
such directors then serving on the Board of Directors) at
any meeting of stockholders of the Corporation at which
directors are to be elected held during the period in which
such dividends remain in arrears. Whenever the right to
elect directors shall have accrued to the holders of 5%
Preferred Stock, the proper officers of the Corporation
shall call a meeting for the election of such directors,
such meeting to be held not less than 45 nor more than 90
days after the accrual of such right. The right of the
holders of the 5% Preferred Stock to vote for two directors
shall terminate when all accrued and unpaid dividends on the
5% Preferred Stock have been declared and paid or set apart
for payment. The term of office of all directors so elected
shall terminate immediately upon the termination of the
right of the holders of the 5% Preferred Stock and such
Parity Dividend Stock to vote for two directors. In
connection with such right to vote, each holder of 5%
Preferred Stock will have one vote for each share held.
Without the consent or affirmative vote of the
holders of at least two-thirds of the outstanding shares of
5% Preferred Stock, voting separately as a class with
holders of any other class of the Corporation's preferred
stock entitled to vote in such circumstances, the
Corporation shall not authorize, create or issue any shares
of any other class or series of Senior Dividend Stock or
Senior Liquidation Stock. The affirmative vote or consent
of the holders of at least two-thirds of the outstanding
shares of the 5% Preferred Stock, voting separately as a
class with holders of any other class of preferred stock
entitled to vote in such circumstances, will be required for
any amendment, alteration or repeal, whether by merger or
consolidation or otherwise, of the Certificate if the
amendment, alteration or repeal would materially and
adversely affect the powers, preferences or special rights
of the 5% Preferred Stock.
(j) Outstanding Shares. For purposes of this
Certificate of Designations, all shares of 5% Preferred
Stock shall be deemed outstanding except (i) from the date
fixed for redemption pursuant to Paragraph (f) hereof, all
shares of 5% Preferred Stock which have been so called for
redemption under Paragraph (f) if the Common Stock or funds
necessary for the redemption of such shares are available;
(ii) from the date of surrender of certificates representing
shares of 5% Preferred Stock, all shares of 5% Preferred
Stock converted into Common Stock; and (iii) from the date
of registration of transfer, all shares of 5% Preferred
Stock held of record by the Corporation or any subsidiary of
the Corporation.
(k) Partial Payments. If at any time the
Corporation does not pay amounts sufficient to redeem all 5%
Preferred Stock called for redemption by the Corporation on
the redemption date set pursuant to Paragraph (f) hereof,
then such funds which are paid shall be applied to redeem
such 5% Preferred Stock as the Corporation may designate by
lot.
(l) Right of Action. Notwithstanding any other
provision of this Certificate of Designations, if the
Corporation shall default in the payment of any amount
required to be paid by it in respect of the 5% Preferred
Stock, each holder of 5% Preferred Stock, individually,
shall have a right to bring an action for payment.
IN WITNESS WHEREOF, Ultramar Corporation has
caused its corporate seal to be hereunto affixed and this
certificate to be signed by Patrick J. Guarino, its Senior
Vice President, General Counsel and Secretary, and attested
by Gregory A. Robbins, its Assistant Secretary, this 3rd day
of December, 1996.
ULTRAMAR CORPORATION
By: /s/ PATRICK J. GUARINO
Patrick J. Guarino
Senior Vice President,
General Counsel and Secretary
Attest:
By: /s/ GREGORY A. ROBBINS
Gregory A. Robbins
Assistant Secretary
w5016.tw
Exhibit 4.5
ULTRAMAR CORPORATION
SECRETARY'S CERTIFICATE
I, Patrick J. Guarino, Vice President and Secretary of
Ultramar Corporation, a corporation organized under the laws of the
State of Delaware (the "Corporation"), hereby certify that a
meeting of the Board of Directors of the Corporation was duly
called and held on the 21st day of July, 1993, that at said meeting
a quorum was present and voting throughout, and that the following
resolution on motion duly made and seconded was unanimously adopted
and is now in full force and effect.
RESOLVED, that the By-laws of the Corporation are hereby
amended by replacing ARTICLE VIII, SECTION 3 with the following:
SECTION 3. Authorization of Indemnification. Any
indemnification under this Article VIII (unless ordered by a
court) shall be made by the Corporation only as authorized in
the specific case upon a determination that indemnification of
the director or officer is proper in the circumstances because
he has met the applicable standard of conduct set forth in
Section 1 or Section 2 of this Article VIII, as the case may
be. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of
directors who were not parties to such action, suit or
proceeding, or (ii) if such a quorum is not obtainable, or,
even if obtainable, a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or
(iii) by the stockholders. To the extent, however, that a
director or officer of the Corporation has been successful on
the merits or otherwise in defense of any action, suit or
proceeding described above, or in defense of any claim, issue
or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred
by him in connection therewith, without the necessity of
authorization in the specific case.
IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be duly executed as of the 22nd day of July, 1993.
/s/ PATRICK J. GUARINO
Patrick J. Guarino
W5010.TW
Exhibit 4.6
ULTRAMAR CORPORATION
SECRETARY'S CERTIFICATE
I, Patrick J. Guarino, Senior Vice President, General Counsel
and Secretary of Ultramar Corporation, a Delaware corporation (the
"Corporation"), hereby certify that meetings of the Board of
Directors of the Corporation were duly called and held on
September 22, 1996, and December 3, 1996, at each of which a quorum
was present and voting throughout, and that at such meetings
resolutions on motions duly made and seconded were unanimously
adopted and are now in full force and effect which approved the
following amendments to the By-laws of the Corporation.
The By-laws of the Corporation are hereby amended so that they
read in their entirety as they exist on the date hereof except
that:
(i) Section 1 of Article IV of such by-laws reads in its
entirety as follows:
"SECTION 1. General. The officers of the Corporation
shall be chosen by the Board of Directors and shall be a
Chairman of the Board of Directors (who must be a director),
a Vice Chairman of the Board of Directors (who also must be a
director), a Chief Executive Officer, a President and Chief
Operating Officer, a Secretary and a Treasurer. The Board of
Directors, in its discretion, may also choose one or more Vice
Presidents (including, without limitation, Assistant,
Executive, Senior and Group), Assistant Secretaries, Assistant
Treasurers and other officers. Any number of offices may be
held by the same person, unless otherwise prohibited by law,
the Certificate of Incorporation or these By-laws. The
officers of the Corporation need not be stockholders of the
Corporation nor, except in the case of the Chairman of the
Board of Directors and the Vice Chairman of the Board of
Directors, need such officers be directors of the
Corporation.";
(ii) Sections 4, 5 and 6 of Article IV of such by-laws read in
their entirety as follows:
"SECTION 4. Chairman and Vice Chairman of the Board of
Directors. The Chairman of the Board of Directors shall
preside at all meetings of the stockholders and of the Board
of Directors. Except where by law the signature of the Chief
Executive Officer or the President and Chief Operating Officer
is required, the Chairman of the Board of Directors shall
possess the same power as the Chief Executive Officer or the
President and Chief Operating Officer to sign all contracts,
certificates and other instruments of the Corporation which
may be authorized by the Board of Directors. During the
absence or disability of the Chief Executive Officer or
President and Chief Operating Officer, the Chairman of the
Board of Directors shall exercise all the powers and discharge
all the duties of the Chief Executive Officer or President and
Chief Operating Officer, as applicable. The Chairman of the
Board of Directors shall also perform such other duties and
may exercise such other powers as from time to time may be
assigned to him by these By-laws or by the Board of Directors.
The Vice Chairman of the Board of Directors shall, during the
absence or disability of the Chairman of the Board of
Directors, have the powers and perform the duties of the
Chairman of the Board of Directors and shall also perform such
other duties and may exercise such other powers as from time
to time may be assigned to him by the Board of Directors.
Notwithstanding anything in these By-laws to the contrary, the
Chairman of the Board of Directors and the Vice Chairman of
the Board of Directors may only be removed from such offices
(but not as directors) by an affirmative vote of the majority
of the entire Board of Directors.
"SECTION 5. Chief Executive Officer and President and
Chief Operating Officer. The Chief Executive Officer shall,
subject to the control of the Board of Directors and the
Chairman of the Board of Directors (or during his absence or
disability, the Vice Chairman of the Board of Directors), have
general supervision of the business and affairs of the
Corporation and shall see that all orders and resolutions of
the Board of Directors are carried into effect. He shall
possess the power to execute all bonds, mortgages, contracts
and other instruments of the Corporation requiring a seal,
under the seal of the Corporation, except where required or
permitted by law to be otherwise signed and executed and
except that the other officers of the Corporation may sign and
execute documents when so authorized by these By-laws, the
Board of Directors or the Chief Executive Officer. In the
absence or disability of both the Chairman of the Board of
Directors and the Vice Chairman of the Board of Directors, the
Chief Executive Officer shall preside at all meetings of the
stockholders and the Board of Directors. The Chief Executive
Officer shall also perform such other duties and may exercise
such other powers as from time to time may be assigned to him
by these By-laws or by the Board of Directors and,
notwithstanding any other provision of these By-laws, the
Chief Executive Officer may appoint officers of the
Corporation pursuant to and in accordance with authority
granted to him from time to time by the Board of Directors.
The President and Chief Operating Officer (hereinafter
sometimes referred to only as the "President") shall, subject
to the direction and control of the Board of Directors, and
the supervision of the Chairman of the Board of Directors (or
during his absence or disability, the Vice Chairman of the
Board of Directors) and the Chief Executive Officer, have
general supervision of the business operations of the
Corporation. The President and Chief Operating Officer shall,
during the absence or disability of the Chief Executive
Officer, have the powers and perform the duties of the Chief
Executive Officer and shall also perform such other duties and
may exercise such other powers as from time to time may be
assigned to him by these By-laws or the Board of Directors.
Notwithstanding anything in these By-laws to the contrary, the
Chief Executive Officer and the President and Chief Operating
Officer may only be removed from such offices by an
affirmative vote of the majority of the entire Board of
Directors.
"SECTION 6. Vice Presidents. At the request of the
Chief Executive Officer or in his absence or in the event of
his inability or refusal to act (and only in the absence of
the Chairman of the Board of Directors, Vice Chairman of the
Board of Directors and President and Chief Operating Officer
who would otherwise have the powers and perform the duties of
the Chief Executive Officer), the Vice President or the Vice
Presidents if there is more than one (in the order designated
by the Board of Directors) shall perform the duties of the
Chief Executive Officer, and when so acting, shall have all
the powers of and be subject to all the restrictions upon the
Chief Executive Officer. Each Vice President shall perform
such other duties and have such other powers as the Board of
Directors from time to time may prescribe. If there be no
Chairman of the Board of Directors, no Vice Chairman of the
Board of Directors, no President and Chief Operating Officer
and no Vice President, the Board of Directors shall designate
the officer of the Corporation who, in the absence of the
Chief Executive Officer or in the event of the inability or
refusal of the Chief Executive Officer to act, shall perform
the duties of the Chief Executive Officer, and when so acting,
shall have all the powers of and be subject to all the
restrictions upon the Chief Executive Officer."; and
(iii) Article VIII of such by-laws reads in its entirety as
follows:
ARTICLE VIII
Indemnification
"SECTION 1. Right to Indemnification. Each person who was or
is made a party or is threatened to be made a party to or is
otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a
"proceeding"), by reason of the fact that he or she is or was a
director or an officer of the Corporation or is or was serving at
the request of the Corporation as a director, officer, employee or
agent of another corporation or of a partnership, joint venture,
trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity
as a director, officer, employee or agent or in any other capacity
while serving as a director, officer, employee or agent, shall be
indemnified and held harmless by the Corporation to the fullest
extent permitted or required by the Delaware General Corporation
Law, as the same exists or may hereafter be amended (but, in the
case of any such amendment, only to the extent that such amendment
permits the Corporation to provide broader indemnification rights
than such law permitted the Corporation to provide prior to such
amendment), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by
such indemnitee in connection therewith; provided, however, that,
except as provided in Section 3 of this Article VIII with respect
to proceedings to enforce rights to indemnification, the
Corporation shall indemnify any such indemnitee in connection with
a proceeding (or part thereof) initiated by such indemnitee only if
such proceeding (or part thereof) was authorized by the Board of
Directors of the Corporation.
"SECTION 2. Right to Advancement of Expenses. The right to
indemnification conferred in Section 1 of this Article VIII shall
include the right to be advanced by the Corporation the expenses
(including, without limitation, attorneys' fees and expenses)
incurred in defending any such proceeding in advance of its final
disposition (hereinafter an "advancement of expenses"); provided,
however, that, if the Delaware General Corporation Law so requires,
an advancement of expenses incurred by an indemnitee in his or her
capacity as a director or officer (and not in any other capacity in
which service was or is rendered by such indemnitee, including,
without limitation, service to an employee benefit plan) shall be
made only upon delivery to the Corporation of an undertaking
(hereinafter an "undertaking"), by or on behalf of such indemnitee,
to repay all amounts so advanced if it shall ultimately be
determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that
such indemnitee is not entitled to be indemnified for such expenses
under this Section 2 or otherwise. The rights to indemnification
and to the advancement of expenses conferred in Sections 1 and 2 of
this Article VIII shall be contract rights and such rights shall
continue as to an indemnitee who has ceased to be a director,
officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
"SECTION 3. Right of Indemnitee to Bring Suit. If a claim
under Section 1 or 2 of this Article VIII is not paid in full by
the Corporation within 60 calendar days after a written claim has
been received by the Corporation, except in the case of a claim for
an advancement of expenses, in which case the applicable period
shall be 20 calendar days, the indemnitee may at any time
thereafter bring suit against the Corporation to recover the unpaid
amount of the claim. If successful in whole or in part in any such
suit, or in a suit brought by the Corporation to recover an
advancement of expenses pursuant to the terms of an undertaking,
the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (i) any suit brought by the
indemnitee to enforce a right to indemnification hereunder (but not
in a suit brought by the indemnitee to enforce a right to an
advancement of expenses) it shall be a defense that, and (ii) any
suit brought by the Corporation to recover an advancement of
expenses pursuant to the terms of an undertaking, the Corporation
shall be entitled to recover such expenses upon a final
adjudication that, the indemnitee has not met any applicable
standard for indemnification set forth in the Delaware General
Corporation Law. Neither the failure of the Corporation (including
its Board of Directors, independent legal counsel or stockholders)
to have made a determination prior to the commencement of such suit
that indemnification of the indemnitee is proper in the circum-
stances because the indemnitee has met the applicable standard of
conduct set forth in the Delaware General Corporation Law, nor an
actual determination by the Corporation (including its Board of
Directors, independent legal counsel or stockholders) that the
indemnitee has not met such applicable standard of conduct, shall
create a presumption that the indemnitee has not met the applicable
standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the
indemnitee to enforce a right to indemnification or to an
advancement of expenses hereunder, or brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an
undertaking, the burden of proving that the indemnitee is not enti-
tled to be indemnified, or to such advancement of expenses, under
this Article VIII or otherwise shall be on the Corporation.
"SECTION 4. Non-Exclusivity of Rights. The rights to
indemnification and to the advancement of expenses conferred in
this Article VIII shall not be exclusive of any other right which
any person may have or hereafter acquire under any statute, the
Corporation's Certificate of Incorporation, By-laws, agreement,
vote of stockholders or disinterested directors or otherwise.
"SECTION 5. Insurance. The Corporation may maintain
insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Corporation or another
corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the
Corporation would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corpora-
tion Law.
"SECTION 6. Indemnification of Employees and Agents of the
Corporation. The Corporation may, to the extent authorized from
time to time by the Board of Directors, grant rights to indem-
nification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of
this Article with respect to the indemnification and advancement of
expenses of directors and officers of the Corporation."
IN WITNESS WHEREOF, the undersigned has caused this
Certificate to be duly executed as of December 3, 1996.
/s/ PATRICK J. GUARINO
Patrick J. Guarino
Senior Vice President,
General Counsel and Secretary
W5018.TW
Exhibit 4.8
(Front side)
Incorporated under the laws COMMON STOCK
of the State of Delaware PAR VALUE $.01
NUMBER SHARES
This Certificate is transferable in CUSIP 904000 10 6
New York, New Jersey, Toronto, Montreal See Reverse for
Vancouver, Calgary and Halifax certain definitions
ULTRAMAR DIAMOND SHAMROCK CORPORATION
This certifies that
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF
ULTRAMAR DIAMOND SHAMROCK CORPORATION transferable on the books of the Company
in person or by attorney on surrender of this certificate properly endorsed.
This certificate is not valid until countersigned by the Transfer of Agent and
registered by the Registrar.
Witness the seal of the Company and the facsimile signatures of its duly
authorized
officers.
/s/ R. R. Hemminghaus CORPORATE COUNTERSIGNED AND REGISTERED:
Chairman of the Board SEAL REGISTRAR
and Chief Executive Officer AND OR
TRANSFER
TRANSFER AGENT
AND REGISTRAR
Patrick J. Guarino
/s/ Executive Vice President, By: By:
General Counsel and Secretary
Authorized Authorized
Signatory Signatory
REVERSE SIDE
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -____Custodian
TENENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants
in common Act_________________________
(State)
Additional abbreviations may also be used though not in the above list.
For value received, ___________ hereby sell, Pour une contrepartie de valeur,
assign and transfer unto ___________________ cede(nt) a
PLEASE INSERT SOCIAL SECURITY OR OTHER NUMERO D'ASSURANCE SOCIALE QU
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________ __________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE
_______________________________________________________________________________
NOM ET ADRESSE (Y COMPRIS LE CODE POSTAL) DU CESSIONNAIRE EN CARACTERES
D'IMPRIMERIE
________________________________________________________________________________
________________________________________________________________________________
shares of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
_______________________________________________________________________________
actions du capital representees par le present certificat et nomme(nt)
irrevocablement
________________________________________________________________________________
attorney to transfer the said stock on the books of the within named Corporation
with full power of substitution in the premises.
________________________________________________________________________________
mandatire pour transferer ces actions aux registres de la societe nomme aux
presentes, avec pleins pouvolrs de substitution.
Dated:_________________________ Dated:_________________________
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION
OR ENLARGEMENT OR ANY CHANGE
WHATEVER.
AVIS: LA SIGNATURE DU PRESENT FORMULAIRE DE TRANSFERT DOIT CORRESPONDRE EN TOUS
POINTS AU NOM ECRIT AU RECTO DU PRESENT CERTIFICAT, SANS MODIFICATION NI
AGRANDISSEMENT.
This certificate also evidences and entitles the holder hereof to certain
Rights as set forth in a Rights Agreement dated as of June 25, 1992, as it may
be amended from time to time (the "Rights Agreement"), between Ultramar Diamond
Shamrock Corporation and Registrar and Transfer Company, as successor Rights
Agent, the terms of which are hereby incorporated herein by reference and a copy
of which is on file at the principal executive offices of Ultramar Diamond
Shamrock Corporation. Under certain circumstances, as set forth in the
Rights Agreement, such Rights will be evidenced by separate certificates and
will no longer be evidenced by this certificate. Ultramar Diamond Shamrock
Corporation will mail to the holder of this certificate a copy of the Rights
Agreement without charge after receipt of a request therefor. Rights
beneficially owned by Acquiring Persons or their Affiliates or Associates (as
such terms are defined in the Rights Agreement) and by any subsequent holder
of such Rights are null and void and nontransferable.
The authorized shares of Ultramar Diamond Shamrock Corporation include
preferred stock. A statement of the powers, designations, preferences and
relative, participating, optional or other special rights of each class of
preferred stock or series thereof and the qualifications, limitations or
restrictions of such preferences and/or rights will be furnished by the
Corporation without charge to each stockholder who so requests. Any such
request is to be addressed to the Secretary of Ultramar Diamond Shamrock
Corporation or to the transfer agent named on the face of this certificate.
W5011.TW
Exhibit 5.1
December 31, 1996
Ultramar Diamond Shamrock Corporation
9830 Colonnade Boulevard
San Antonio, Texas 78230
Re: Registration Statement on Form S-8 of Ultramar Diamond Shamrock
Corporation (Registration No. ______________)
Gentlemen:
I am a Senior Attorney of Ultramar Diamond Shamrock Corporation (the
"Company"). This letter is delivered in connection with the registration,
issuance, and sale of up to an aggregate amount of 1,000,000 shares of
Common Stock (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 September 22, 1996.
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 the Company's Certificate of Incorporation (the
"Certificate").
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-8 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/ TODD WALKER
TODD WALKER
TW:es
W5013.TW
Exhibit 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-8 of Ultramar Diamond Shamrock
Corporation of our report dated February 23, 1996, except as it
pertains to the last paragraph of Note 2, for which our report is
dated September 27, 1996, which appears in Exhibit 13.3 of Diamond
Shamrock, Inc.'s Annual Report on Form 10-K/A for the year ended
December 31, 1995.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Antonio, Texas
December 27, 1996
w5015.TW
Exhibit 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption
"Experts" in the Registration Statement (Form S-8), pertaining to the
Diamond Shamrock, Inc. 1987 Long Term Incentive Plan and the Diamond
Shamrock, Inc. Long Term Incentive Plan and to the incorporation by
reference therein of our report dated February 1, 1996 with respect to the
consolidated financial statements and schedules of Ultramar Corporation
included in its Annual Report (Form 10-K) for the year ended December 31,
1995, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Stamford, Connecticut
December 27, 1996
W5020.TW
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that Ultramar Diamond Shamrock
Corporation (the "Corporation") hereby constitutes and appoints
Patrick J. Guarino, Todd Walker, and Gregory Robbins, and each of
them, its true and lawful attorney or attorneys-in-fact, with full
power of substitution and revocation, to sign a Registration
Statement on Form S-8 for the Corporation for the purpose of
registering, pursuant to the Securities Act of 1933, up to
1,000,000 shares of Common Stock (and associated stock purchase
rights) of the Corporation for issuance pursuant to the
Corporation's obligations under the Long-Term Incentive Plan
assumed by operation of the merger of Diamond Shamrock, Inc. with
and into the Corporation effective December 3, 1996, and to sign
any or all amendments and any or all post-effective amendments to
such Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with
the Securities and Exchange Commission granting unto said attorney
or attorneys-in-fact, and each of them, full power and authority to
do and perform each and every act and thing requisite and necessary
to be done in and about the premises, hereby ratifying and
confirming all that said attorney or attorneys-in-fact or any of
them or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
/s/ R. R. HEMMINGHAUS
R. R. HEMMINGHAUS, CHAIRMAN
AND CHIEF EXECUTIVE OFFICER
Dated: December 30, 1996
W5012.TW
Exhibit 24.2
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitute
and appoint Patrick J. Guarino, Todd Walker and Gregory Robbins, and each
of them, their true and lawful attorney or attorneys-in-fact, with full
power of substitution and revocation, for them and in their name, place,
and stead, in any and all capacities (including as an officer or director
of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation")), to sign a
Registration Statement on Form S-8 of the Corporation for the purpose of
registering, pursuant to the Securities Act of 1933, up to 1,000,000 shares
of Common Stock (and associated stock purchase rights) of the Corporation
for issuance pursuant to the Corporation's obligations under the Long-Term
Incentive Plan assumed by operation of the merger of Diamond Shamrock, Inc.
with and into the Corporation effective December 3, 1996, and to sign any
or all amendments and any or all post-effective amendments to such
Registration Statement, and to file the same, with all exhibits thereto,
and other documents in connection therewith, with the Securities and
Exchange Commission granting unto said attorney or attorneys-in-fact, and
each of them, full power and authority to do and perform each and every act
and thing requisite and necessary to be done in and about the premises, as
fully to all intents and purposes as they might or could do in person,
hereby ratifying and confirming all that said attorney or attorneys-in-fact
or any of them or their substitute or substitutes, may lawfully do or cause
to be done by virtue hereof.
/s/ R. R. HEMMINGHAUS /s/ BYRON ALLUMBAUGH
R. R. HEMMINGHAUS BYRON ALLUMBAUGH
/s/ E. GLENN BIGGS /s/ H. FREDERICK CHRISTIE
E. GLENN BIGGS H. FREDERICK CHRISTIE
/s/ W. E. BRADFORD /s/ RUSSELL H. HERMAN
W. E. BRADFORD RUSSELL H. HERMAN
/s/ W. H. CLARK /s/ MADELEINE SAINT-JACQUES
W. H. CLARK MADELEINE SAINT-JACQUES
/s/ BOB MARBUT /s/ H. PETE SMITH
BOB MARBUT H. PETE SMITH
/s/ KATHERINE D. ORTEGA /s/ C. BARRY SCHAEFER
KATHERINE D. ORTEGA C. BARRY SCHAEFER
Dated: December 30, 1996
W5003.TW
Exhibit 24.3
ULTRAMAR DIAMOND SHAMROCK CORPORATION
ASSISTANT SECRETARY'S CERTIFICATE
I, Harold D. Mallory, do hereby certify that I am the duly
appointed and acting Assistant Secretary of Ultramar Diamond
Shamrock Corporation (the "Corporation"), and do further hereby
certify that attached hereto as Exhibit "A" is a true and correct
copy of resolutions duly adopted by the Board of Directors of the
Corporation on September 22, 1996, and the same have not been
amended, modified, or rescinded.
WITNESS the seal of the Corporation and my signature on this
30th day of December, 1996.
/s/ HAROLD D. MALLORY
Harold D. Mallory
Assistant Secretary
<PAGE>
Exhibit "A"
RESOLVED, that the Board of Directors finds it advisable and
in the best interest of the Corporation that the form, terms
and provisions of the Agreement and Plan of Merger dated as of
9/22/96 (the "Merger Agreement") between the Corporation and
the corporation referred to as Gem, a Delaware corporation
("Gem"), a copy of which has been submitted to this meeting
and identified as Exhibit A, and the merger contemplated
therein of Gem with and into the Corporation (the "Merger"),
be, and they hereby are, in all respects approved and that
such approval shall constitute approval for purposes of
Section 203 of the Delaware General Corporation Law (the
"DGCL"); and that the Chairman of the Board, the Chief
Executive Officer, the President, or any Senior Vice President
of the Corporation be, and each of them hereby is, authorized
to execute, in the name and on behalf of the Corporation, the
Merger Agreement; and be it
FURTHER RESOLVED, that the amendments to the Certificate of
Incorporation of the Corporation (as amended, the "Amended
Certificate of Incorporation"), and the amendments to the
Corporation's By-laws, all as set forth in Section 1.05 of the
Merger Agreement, be, and they hereby are, in all respects
approved, with such additions, deletions or changes therein
and modifications thereof as are set forth in the executed
Merger Agreement; and be it
FURTHER RESOLVED, that the Merger Agreement and the issuance
of shares of the Corporation's Common Stock shall be submitted
to the stockholders of the Corporation for approval and
adoption at the Special Meeting provided for in these
resolutions; and be it
FURTHER RESOLVED, that this Board of Directors hereby
recommends to the stockholders of the Corporation that they
vote for the approval and adoption of the Merger Agreement;
and be it
FURTHER RESOLVED, that, if the stockholders shall have voted
for the approval and adoption of the Merger Agreement and the
other conditions set forth in the Merger Agreement shall have
been fulfilled or waived, the Chairman of the Board, the Chief
Executive Officer, the President or any Senior Vice President
of the Corporation be, and each of them hereby is, authorized
to consummate the Merger in accordance with the Merger
Agreement and to take such actions incident thereto, including
if necessary and without limitation (i) issuing, in connection
with the Merger and in accordance with the Amended Certificate
of Incorporation, shares of the Corporation's Common Stock and
shares of the Corporation's 5% Cumulative Convertible
Preferred Stock (such Common and Preferred Stock, the "Merger
Securities"), (ii) executing, verifying, delivering and filing
or causing to be filed a certificate of designation with
respect to the Corporation's 5% Cumulative Convertible
Preferred Stock with the Secretary of State of the State of
Delaware, in accordance with applicable provisions of the
DGCL, in such form, with such additions, deletions or changes
therein and modifications thereof, if any, as the officer
executing the same shall approve (the execution thereof by any
such officer to be conclusive evidence of his or her approval
thereof) and (iii) executing, verifying, delivering and filing
or causing to be filed a certificate of merger with the
Secretary of State of the State of Delaware, in accordance
with applicable provisions of the DGCL, in such form, with
such additions, deletions or changes therein and modifications
thereof, if any, as the officer executing the same shall
approve (the execution thereof by any such officer to be
conclusive evidence of his or her approval thereof).
W5019.TW
