As filed with the Securities and Exchange Commission October 5, 2000
Registration No. 333-27697
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ULTRAMAR DIAMOND SHAMROCK CORPORATION
(Exact Name of Registrant as Specified in Charter)
Delaware 13-3663331
(State of (IRS Employer
Incorporation) Identification No.)
6000 North Loop 1604 West 78249-1112
(Address of Principal Executive (Zip Code)
Offices)
ULTRAMAR DIAMOND SHAMROCK CORPORATION
NON-EMPLOYEE DIRECTOR EQUITY PLAN
(Full title of the Plan)
Timothy J. Fretthold, Esq.
Executive Vice President,
Chief Administrative and Legal Officer
Ultramar Diamond Shamrock Corporation
6000 North Loop 1604 West
San Antonio, Texas 78249-1112
(Name and Address of Agent for Service)
(210) 592-2000
(Telephone Number, Including Area Code
of Agent for Service)
In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this
registration statement also covers an indeterminate amount of interests to be
offered or sold pursuant to the employee benefit plan(s) described herein.
<PAGE>
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
<S> <C> <C> <C> <C>
----------------------- --------------------- -------------------- ----------------------- -------------------------
Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of Registration
to be Registered (1) Registered Offering Price Per Offering Fee (2)
Share (2) ----------------------
Price (2)
----------------------- --------------------- -------------------- ----------------------- -------------------------
----------------------- --------------------- -------------------- ----------------------- -------------------------
Common Stock, par 250,000 $25.03 $6,257,813 $401.00
value $.01 per share
----------------------- --------------------- -------------------- ----------------------- -------------------------
</TABLE>
(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
price of common stock of Ultramar Diamond Shamrock Corporation (the
"Company") of $25.03, per share, which is the average of the high and
low sale price thereof on the Composite Tape of the New York Stock
Exchange on September 26, 2000.
<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 the Company are incorporated herein by
reference:
(a) The Company's Registration Statement 333-27697 on Form S-8, filed
with the Commission on May 23, 1997;
(b) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1999, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "1934 Act");
(c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter
ended March 31, 2000 and on Form 10-Q/A for the fiscal quarter ended June 30,
2000; and
(d) The Company's Current Report on Form 8-K dated August 31, 2000;
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/A
Registration Statement (the "Registration Statement") and prior to the filing of
a post-effective amendment to the Registration Statement that indicates that all
securities offered have been sold or that de-registers all of the securities
that remain unsold shall be deemed to be incorporated by reference herein and to
be a part hereof from the respective dates of the filing of such documents.
Item 4. Description of Securities.
Incorporated by reference to the Company's filing on Form S-3/A,
Registration Statement No. 333-46775.
Item 5. Interests of Named Experts and Counsel.
EXPERTS
The audited financial statements of Ultramar Diamond Shamrock
Corporation incorporated by reference in this prospectus and elsewhere in the
registration statement have been audited by Arthur Andersen LLP, independent
public accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said reports.
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., Managing
Attorney and Corporate Secretary for the Company. Mr. Walker beneficially owns
shares of the Common Stock of the Company.
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 Non-Employee
Director Equity Plan (incorporated by reference to
the Company's Report on Schedule 14A filed March 21,
2000)
4.2 Rights Agreement dated June 25, 1992 between the
Company and Registrar and Transfer Company, as
amended (incorporated by reference to Registration
Statement on Form S-1 (File No. 33-47586), Exhibit
4.2; Quarterly Report on Form 10-Q for quarter ended
September 30, 1992, Exhibit 4.2; Annual Report on
Form 10-K for the year ended December 31, 1994,
Exhibit 4.3.
5.1 Opinion regarding legality of securities being issued
23.1 Consent of Arthur Andersen LLP
23.2 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 Powers of Attorney of members of the Ultramar Diamond
Shamrock Corporation Employee Benefits Committee
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 (except to the extent covered by reports filed under the
1934 Act and incorporated herein by reference), and (c) to include any material
information with respect to the plan of distribution not previously disclosed in
this Registration Statement or any material change to such information in this
Registration Statement;
(2) that, for the purpose of determining any liability under the 1933 Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof; and
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering.
B. The Company hereby undertakes that, for purposes of determining any liability
under the 1933 Act, each filing of the Company's annual report pursuant to
Section 13(a) or Section 15(d) of the 1934 Act and each filing of the Plan's
annual report pursuant to Section 15(d) of the 1934 Act that are 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.
<PAGE>
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/A 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 3rd day of October, 2000.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: *Jean Gaulin, 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
*Jean Gaulin Chairman of the Board October 3, 2000
and Chief Executive
Officer
*Robert S. Shapard Executive Vice President October 3, 2000
and Chief Financial officer
(Principal Financial Officer
and Principal Accounting Officer)
*Byron Allumbaugh Director October 3, 2000
*E. Glenn Biggs Director October 3, 2000
*W. E. Bradford Director October 3, 2000
*H. Frederick Christie Director October 3, 2000
*W. H. Clark Director October 3, 2000
*Russel H. Herman Director October 3, 2000
*Bob Marbut Director October 3, 2000
*Katherine D. Ortega Director October 3, 2000
*Madeleine Saint-Jacques Director October 3, 2000
*C. Barry Schaefer Director October 3, 2000
Pursuant to the requirements of the 1933 Act, the Ultramar Diamond
Shamrock Corporation Employee Benefits Committee, as administrator of the Non-
Employee Director Equity Plan (the "Plan"), have caused this registration
statement to be signed on the Plan's behalf by the undersigned, thereunto duly
authorized, in the City of San Antonio, Texas on October 3, 2000.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
NON-EMPLOYEE DIRECTOR EQUITY PLAN
BY: ULTRAMAR DIAMOND SHAMROCK CORPORATION
EMPLOYEE BENEFITS COMMITTEE
* Timothy J. Fretthold, Member
* Penelope Viteo, Member
* Lorraine Racicot, Member
* Steve Blank, Member
*Todd Walker, by signing his name hereto, does hereby sign this Registration
Statement on Form S-8/A on behalf of Ultramar Diamond Shamrock Corporation, each
of the above-named officers and directors of Ultramar Diamond Shamrock
Corporation, and each of the above named members of the Ultramar Diamond
Shamrock Corporation Employee Benefits Committee pursuant to powers of attorney
executed on behalf of the Company and each of such officers, directors, and
members.
By: /s/ Todd Walker
Attorney-in-fact
October 3, 2000
<PAGE>
INDEX TO EXHIBITS
Exhibit
Number Description
4.1 Ultramar Diamond Shamrock Corporation Non-Employee Director Equity
Plan (incorporated by reference to the Company's Report on Schedule
14A filed March 21, 2000)
4.2 Rights Agreement dated June 25, 1992 between the Company and
Registrar and Transfer Company, as amended (incorporated by
reference to Registration Statement on Form S-1 (File No. 33-47586),
Exhibit 4.2; Quarterly Report on Form 10-Q for quarter ended
September 30, 1992, Exhibit 4.2; Annual Report on Form 10-K for the
year ended December 31, 1994, Exhibit 4.3.
5.1 Opinion regarding legality of securities being issued
23.1 Consent of Arthur Andersen LLP
23.2 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 Powers of Attorney of members of the Ultramar Diamond Shamrock
Corporation Employee Benefits Committee
