SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
DIAMOND SHAMROCK, INC.
(Exact name of registrant as specified in its charter)
Delaware 74-2456753
(State or other jurisdiction of (IRS Employer
incorporation or organization) Identification No.)
9830 Colonnade Boulevard
San Antonio, Texas 78230
(Address of Principal Executive (Zip Code)
Offices)
DIAMOND SHAMROCK, INC.
LONG-TERM INCENTIVE PLAN
(Full title of the plan)
Timothy J. Fretthold
Senior Vice President/Group Executive
and General Counsel
9830 Colonnade Boulevard
San Antonio, Texas 78230
(Name and address of agent for service)
(210) 641-6800
(Telephone number, including area code, of agent for service)
________________________________________________________________________
Approximate date of proposed commencement of sales pursuant to the Plan: From
time to time after the effective date of this Registration Statement.
______________________________________________________________________
Calculation of Registration Fee
______________________________________________________________________
Title of Amount Proposed Proposed Amount of
securities to be maximum maximum registration
to be registered offering aggregate fee
registered price per offering
share price
_______________________________________________________________________
Common 1,000,000 $27.188 $27,188,000.00 $9,374.42
Stock,
$.01 par
value
_______________________________________________________________________
* Estimated solely for the purpose of computing the registration fee
in accordance with Rule 457(h)(1) based on the market value of
shares of Common Stock of Diamond Shamrock, Inc. (the "Company")
($27.188 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 April 27, 1995.)
** Includes associated preferred share purchase rights issuable
pursuant to the Rights Agreement filed as Exhibit 4.2 hereto.
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") are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1994, filed pursuant to Section 13(a) of the Securities Exchange
Act of 1934, as amended (the "1934 Act").
(b) The Company's Current Reports on Form 8-K, dated January 25, 1995 and
February 6, 1995, 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, 1994.
(c) The description of the Common Stock contained in the Company's
Registration Statement on Form 10 (File No. 1-9409), filed pursuant to Section
12(b) of the 1934 Act, and any amendment or report filed for the purpose of
updating such information.
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 6. Indemnification of Directors and Officers
Under Delaware law, directors, officers, employees and other individuals
may be indemnified against expenses (including attorneys' fees), judgments,
fines and amounts paid in settlement in connection with specified actions, suits
or proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation (a "derivative action")) if
they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interests of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of a
derivative action, except that indemnification only extends to expenses
(including attorneys' fees) incurred in connection with defense or settlement of
such an action and Delaware law requires court approval before there can be any
indemnification of expenses where the person seeking indemnification has been
found liable to the Company.
Article Tenth, Section 2 of the Certificate of Incorporation of the Company
(the "Certificate") provides generally for the Company to indemnify any person
who was or is made a party or is threatened to be made a party to or is 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, or a person of whom he or she is the legal representative, is or was a
director or officer of the Company or a subsidiary thereof or is or was serving
at the request of the Company, joint venture, trust or other enterprise
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity as a director,
officer, partner, member or trustee or in any other capacity while so serving,
to the fullest extent authorized 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 Company to provide broader
indemnification rights than such law prior to such amendment permitted the
Company to provide), against all expense, liability and loss (including
attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts
paid or to be paid in settlement) reasonably incurred or suffered by such person
in connection therewith.
Article Tenth, Section 2(d) of the Certificate provides that the Company
may maintain insurance, at its expense, to protect itself and any director,
officer, employee or agent of the Company or another corporation, partnership,
joint venture, trust or other enterprise against any expense, liability or loss,
whether or not the Company would have the power to indemnify such person against
such expense, liability or loss under the Delaware General Corporation Law.
The Company and each of its directors have entered into indemnification
agreements. Pursuant to such agreements, each of the directors is entitled to
indemnification whether the director's acts, failures to act, neglect or breach
of duty giving rise to the right to indemnity thereunder occurred prior to or
subsequent to the date of such agreement. Such right, however, is not available
with respect to acts, failures to act, neglect or breaches of duty of a director
occurring prior to the date such person was elected as a director of the
Company.
Such indemnification agreements attempt to specify the extent to which the
directors may receive indemnification under circumstances in which indemnity
would not otherwise be provided by Article Tenth. Such agreements entitle the
directors to indemnification as expressly provided by Article Tenth and to
indemnification for any amount which a director is or becomes legally obligated
to pay relating to or arising out of any claim made against such director
because of any act, failure to act or neglect or breach of duty, including any
actual or alleged error, misstatement or misleading statement, which such
director commits, suffers, permits or acquiesces in while acting in the
director's position with the Company. The right to receive payments under such
agreements in excess of those expressly provided for in Article Tenth would not
be permitted, however, in connection with any claim against a director:
(i) which results in a final, nonappealable order for the director
to pay a fine or similar governmental imposition which the Company is prohibited
by applicable law from paying; or
(ii) to the extent based upon or attributable to the director gaining in
fact a personal profit to which he or she was not legally entitled, including
without limitation profits made from the purchase and sale by the director of
equity securities of the Company which are recoverable by the Company pursuant
to Section 16(b) of the 1934 Act and profits arising from transactions in
publicly traded securities of the Company which were effected by the director in
violation of Section 10(b) of the 1934 Act, including Rule 10b-5 promulgated
thereunder.
Another purpose of the indemnification agreements is to provide the
directors with increased assurance of indemnification by prohibiting the Company
from adopting any amendment to the Company's Certificate or By-Laws which would
have the effect of denying, diminishing or encumbering a director's
indemnification rights pursuant thereto or to the Delaware Law or any other law
as applied to any act or failure to act occurring in whole or in part prior to
the effective date of such amendment.
The Company and certain of its officers have entered into indemnification
agreements similar to those described above with directors.
The Company has purchased and maintains insurance on behalf of any person
who is or was a director or officer against any loss arising from any claim
asserted against him and incurred by him in any such capacity, subject to
certain exclusions.
Item 8. Exhibits
4.1 Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended.
4.2 Rights Agreement between the Company and Ameritrust Company,
National Association, as Rights Agent, dated March 6, 1990
(Exhibit 2 to the Company's Form 8-A Registration Statement
dated March 6, 1990 (the "Form 8-A"))*.
4.3 Certificate of Incorporation of the Company (Exhibit 3.1 to the
Company's Form 10 Registration Statement No. 1-9409 (the "Form 10")),
as amended by a Certificate of Designations Establishing $2.00
Convertible Exchangeable Preferred Stock (an amended form of which is
Exhibit 4.3 to the Company's Form S-1 Registration Statement No.
33-21991) and by a Certificate of Designations Establishing Series A
Junior Participating Preferred Stock (a form of which is Exhibit 3 to
the Company's Form 8-A).*
4.4 By-laws of the Company (Exhibit 3.2 to the Form 10).*
5.1 Opinion of Timothy J. Fretthold, Esq. with respect to the
legality of the Company's securities being registered.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit
5.1).
24.1 Powers of Attorney of directors and officers of the Company.
24.2 Certificate regarding resolutions of the Board of Directors 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 and Exchange 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 2nd day of May, 1995.
DIAMOND SHAMROCK, INC.
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 May 2, 1995
and Chief Executive
Officer
*R.C. BECKER Vice President and May 2, 1995
Treasurer (Principal
Financial Officer)
*GARY E. JOHNSON Vice President and May 2, 1995
Controller(Principal
Accounting Officer)
*B. CHARLES AMES Director May 2, 1995
*E. GLENN BIGGS Director May 2, 1995
*W.E. BRADFORD Director May 2, 1995
*LAURO F. CAVAZOS Director May 2, 1995
*W.H. CLARK Director May 2, 1995
*WILLIAM L. FISHER Director May 2, 1995
*BOB MARBUT Director May 2, 1995
*KATHERINE D. ORTEGA Director May 2, 1995
Timothy J. Fretthold, by signing his name hereto, does hereby sign this
Registration Statement on Form S-8 on behalf of Diamond Shamrock, Inc. and
each of the above-named officers and directors of Diamond Shamrock, Inc.
pursuant to powers of attorney executed on behalf of the Company and each of
such officers and directors.
*By: /s/ Timothy J. Fretthold
Attorney-in-fact
May 2, 1995
W2165a.LW
INDEX TO EXHIBITS
Exhibit
No.
Exhibit
4.1 Diamond Shamrock, Inc. Long-Term Incentive Plan, as amended
4.2 Rights Agreement between the Company and Ameritrust Company,
National Association, as Rights Agent, dated March 6, 1990
(Exhibit 2 to the Company's Form 8-A Registration Statement
dated March 6, 1990 (the "Form 8-A"))*
4.3 Certificate of Incorporation of the Company (Exhibit 3.1 to the
Company's Form 10 Registration Statement No. 1-9409 (the "Form 10")),
as amended by a Certificate of Designations Establishing $2.00
Convertible Exchangeable Preferred Stock (an amended form of which is
Exhibit 4.3 to the Company's Form S-1 Registration Statement No.
33-21991) and by a Certificate of Designations of Series A Junior
Participating Preferred Stock (a form of which is Exhibit 3 to the
Company's Form 8-A)*
4.4 By-laws of the Company (Exhibit 3.2 to the Form 10)*
5.1 Opinion of Timothy J. Fretthold, Esq. with respect to the legality of
the Company's securities being registered
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5.1)
24.1 Powers of Attorney of directors and officers of the Company
24.2 Certificate regarding resolutions of the Board of Directors of the
Company
* Each document marked by an asterisk is incorporated herein by reference to
the designated document previously filed with the Commission.