As filed with the Securities and Exchange Commission on May 22, 1997
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)
ULTRAMAR DIAMOND SHAMROCK CORPORATION 1996 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
Proposed Proposed
Title of maximum maximum
securities Amount offering aggregate Amount of
to be to be price per offering registration
registered registered share price fee
Common Stock, 6,000,000 $31.125 (2) $186,750,000 (2) $64,397.00 (2)
par value $.01
per share(1)
(1) Includes associated rights to purchase Ultramar Diamond Shamrock
Corporation Common Stock exercisable pursuant to the Rights Agreement
filed as Exhibit 4.2 hereto.
(2) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(h)and Rule 457(c), based on the market value
of shares of Common Stock of Ultramar Diamond Shamrock Corporation
(the "Company") of $31.125 per share, which is the average of the high
and low sale prices thereof on the Composite Tape of the New York
Stock Exchange on May 16, 1997.
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 1996 Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed pursuant to Section 13(a) of the Securities
Exchange Act of 1934, as amended (the "1934 Act");
(b) The Company's Quarterly Reports on Form 10-Q for the fiscal
quarter ended March 31, 1997, and all other reports, if any, filed by the
Company pursuant to Section 13(a) or 15(d) of the 1934 Act since the end
of the fiscal year ended December 31, 1996;
(c) The Company's Current Report on Form 8-K dated March 4, 1997, and
the Company's Amendment to Current Report on Form 8-K/A dated March 4,
1997; 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 schedule of Ultramar Diamond
Shamrock Corporation appearing in the Company's Annual Report (Form 10-K)
for the year ended December 31, 1996, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report thereon included
therein and incorporated herein by reference, which, as to all periods
presented, is based in part on the report of Price Waterhouse LLP,
independent accountants. Such financial statements are, and certain
audited financial statements to be included in subsequently filed documents will
be, incorporated herein and therein in reliance upon the reports of Ernst &
Young LLP and Price Waterhouse LLP, pertaining to such financial statements
and schedule (to the extent covered by consents filed with the Securities
and Exchange Commission) given upon the authority of such firms as experts
in accounting and auditing.
LEGAL MATTERS
The validity of the shares of the Company's Common Stock being offered
hereby has been passed upon for the Company by Todd Walker, Esq., Corporate
Counsel for the Company. Mr. Walker beneficially owns shares of the Common
Stock of the Company as a result of his participation in various Company
employee benefit plans.
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 Ultramar Diamond Shamrock Corporation 1996 Long Term Incentive
Plan (Exhibit 10.1 to the Company's Registration Statement on
Form S-4, File No. 333-14807, filed on October 25, 1996)*
4.2 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)*
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 Powers of Attorney of Directors and Officers of the Company
* Each document marked by an asterisk is incorporated herein by
reference to the designated document previously filed with the
Commission.
Item 9. Undertakings.
A. The Company hereby undertakes
(1) to file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement (a) to include
any prospectus required by Section 10(a) (3) of the Securities Act of 1933, as
amended (the "1933 Act"), (b) to reflect in the prospectus any facts or
events arising after the effective date of this Registration Statement (or
the most recent post-effective amendment hereof) which, individually or in
the aggregate, 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 22nd day of May, 1997.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /s/ R. R. HEMMINGHAUS
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 May 22, 1997
and Chief Executive
Officer
*H. Pete Smith Executive Vice May 22, 1997
President and Chief
Financial Officer
(Principal Financial
Officer and Principal
Accounting Officer)
*Byron Allumbaugh Director May 22, 1997
*E. Glenn Biggs Director May 22, 1997
*W. E. Bradford Director May 22, 1997
*H. Frederick Christie Director May 22, 1997
*W. H. Clark Director May 22, 1997
*Jean Gaulin Vice-Chairman of
the Board, President,
and Chief Operating
Officer May 22, 1997
*Russel H. Herman Director May 22, 1997
*Bob Marbut Director May 22, 1997
*Katherine D. Ortega Director May 22, 1997
*Madeleine Saint-Jacques Director May 22, 1997
*C. Barry Schaefer Director May 22, 1997
*Todd Walker, by signing his name hereto, does hereby sign this
Registration Statement on Form S-8 on behalf of each of the above-named
officers and directors of Ultramar Diamond Shamrock Corporation pursuant
to powers of attorney executed on behalf of each of such officers and
directors.
By: /s/ Todd Walker
Attorney-in-fact
May 22, 1997
<PAGE>
INDEX TO EXHIBITS
Exhibit
No. Description
4.1 Ultramar Diamond Shamrock Corporation 1996 Long Term
Incentive Plan (Exhibit 10.1 to the Company's Registration
Statement on Form S-4, File No. 333-14807, filed on October
25, 1996)*
4.2 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)*
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 Powers of Attorney of Directors and Officers of the Company
* Each document marked by an asterisk is incorporated herein by
reference to the designated document previously filed with the
Commission.
W3296.lW
May 22, 1997
Ultramar Diamond Shamrock Corporation
9830 Colonnade Boulevard
San Antonio, Texas 78230
Re: Ultramar Diamond Shamrock Corporation 1996 Long Term Incentive
Plan
Gentlemen:
I am Counsel for Ultramar Diamond Shamrock Corporation, a Delaware
corporation (the "Company"). The Company expects to file with the
Securities and Exchange Commission on or about May 22, 1997 under
the Securities Act of 1933, as amended, a Registration Statement on
Form S-8 (the "Registration Statement") for the purpose of
registering 6,000,000 shares of common stock, $0.01 par value of
the Company ("Common Stock").
In connection with such filing, I have examined the Plan and such
other documents, records and matters of law as I have deemed
necessary for purposes of this opinion and based thereupon, I am of
the opinion that the shares of Common Stock that may be issued and
sold or delivered pursuant to the Plan will be, when issued in
accordance with the provisions of the Plan, legally issued, fully
paid an nonassessable and the rights to purchase Common Stock (the
"Rights") in accordance with the Rights Agreement dated June 25,
1992 between the Company and Registrar and Transfer Company, when
duly issued, will be legally issued.
I hereby consent to the filing of this opinion as an exhibit to
the Registration Statement on Form S-8 for the Plan filed by the
Company with the Securities and Exchange Commission to effect
registration of such Common Stock under the Securities Act of 1933,
as amended.
Very truly yours,
/s/ Todd Walker
Todd Walker
w3298.lw
Exhibit 23.1
Consent of Independent Accountants
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 7, 1997 with respect to
the consolidated financial statements and financial statement schedule of
the Diamond Shamrock operations of Ultramar Diamond Shamrock Corporation
included in Ultramar Diamond Shamrock Corporation's Annual Report on Form
10-K for the year ended December 31, 1996. We also consent to the
references to us under the heading "Experts" in such Registration
Statement.
/s/ PRICE WATERHOUSE LLP
PRICE WATERHOUSE LLP
San Antonio
May 22, 1997
w3285a.LW
Consent of Independent Accountants
We consent to the reference to our firm under the caption "Experts"
in the Registration Statement (Form S-8) pertaining to the Ultramar
Diamond Shamrock Corporation 1996 Long Term Incentive Plan and to
the incorporation by reference therein of our report dated February
7, 1997 with respect to the consolidated financial statements and
schedule of Ultramar Diamond Shamrock Corporation (formerly
Ultramar Corporation) included in its Annual Report (Form 10-K) for
the year ended December 31, 1996, filed with Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
San Antonio
May 22, 1997
w3287.LW
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitute
and appoint Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory and
Todd Walker, 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 6,000,000 shares of Common Stock (and associated stock
purchase rights) of the Corporation for issuance pursuant to the
Corporation's obligations under the Corporation's 1996 Long-Term Incentive
Plan approved by the stockholders of the Corporation at the Special Meeting
of stockholders held on 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/ JEAN GAULIN
R. R. HEMMINGHAUS JEAN GAULIN
/s/ E. GLENN BIGGS /s/ BYRON ALLUMBAUGH
E. GLENN BIGGS BYRON ALLUMBAUGH
/s/ W. E. BRADFORD /s/ H. FREDERICK CHRISTIE
W. E. BRADFORD H. FREDERICK CHRISTIE
/s/ W. H. CLARK /s/ RUSSELL H. HERMAN
W. H. CLARK RUSSELL H. HERMAN
/s/ BOB MARBUT /s/ MADELEINE SAINT-JACQUES
BOB MARBUT MADELEINE SAINT-JACQUES
/s/ KATHERINE D. ORTEGA /s/ C. BARRY SCHAEFER
KATHERINE D. ORTEGA C. BARRY SCHAEFER
/s/ H. PETE SMITH
H. PETE SMITH
Dated: February 5, 1997
W5003.tw
