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.
NONQUALIFIED 401(k) 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)
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
____________________________________________________________________________
Deferred
Compensation
obligations(1) $3,000,000 100%(2) $3,000,000(2) $1,034.48
Common 100,000 $24.6875(4) $2,468,750(4) $ 851.29
Stock,
$.01 par
value(3)
(1) The Deferred Compensation Obligations are unsecured general
obligations of Diamond Shamrock, Inc. to pay deferred compensation
in the future in accordance with the terms of the Diamond Shamrock,
Inc. Nonqualified 401(k) Plan (the "Plan").
(2) Estimated solely for the purpose of determining the registration
fee.
(3) Includes associated preferred share purchase rights issuable
pursuant to the Rights Agreement filed as Exhibit 4.2 hereto.
(4) 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")
$24.6875 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 November 22, 1995.)
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 Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1995, June 30, 1995, and September 30, 1995, and the Company's
Current Reports on Form 8-K, dated January 25, 1995, February 6, 1995, and June
1, 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 4. Description of Securities
The Plan allows executive participants to defer compensation and director
participants to defer annual retainer and meeting fees. Before the start of the
fiscal year in which the compensation will be earned, participants may elect the
amount to be deferred and the time and manner of distribution. The amounts
deferred represent unsecured general obligations ("Obligations") of the Company
to pay, in the future, deferred compensation and any net earnings attributable
thereto in accordance with the terms of the Plan and the Trust Agreement between
the Company and Key Trust Company of Ohio, N.A. (formerly known as AmeriTrust
Company N.A.) (the "Trustee") dated as of April 8, 1988, as amended (the "Trust
Agreement"). The Obligations may be deemed to be a security and, therefore,
are being registered along with Common Stock that may be issued in satisfaction
of the Obligations in certain circumstances.
Participants and beneficiaries have the status of general unsecured
creditors with respect to the assets of the trust. No trust beneficiary shall
have any preferred claim on, or any beneficial ownership interest in, any assets
in the trust prior to the time that such assets are paid to a trust
beneficiary. The obligation of the Trustee to pay benefits pursuant to the Trust
Agreement constitutes an unfunded and unsecured promise to pay such benefits.
The Trustee has only the duties described herein and in the Trust Agreement and
has no authority to enforce the Company's Obligations to participants or
otherwise represent participants under the Plan. The Obligations will not have
the benefit of a negative pledge or any other affirmative or negative covenant
on the part of the Company.
The amount deferred by each participant is determined in accordance with
the Plan based on the participant's elections. Such amounts will be payable on
a date selected by the participant in accordance with the terms of the Plan.
The deferred amounts may be deemed invested in one or more deemed investment
funds available under the Plan. The Company will credit the participant's
account with a partial "match" of the deferrals, as described in the Plan. The
amount of any deferrals and "matches" shall be credited to an account
maintained by the Company on its books in the name of the participant. The
balance of the account will be increased or decreased to reflect income,
expenses, gains, and losses deemed attributable to the account.
Neither any participant nor any beneficiary shall have the right to
alienate, assign, or encumber any amount that may be payable under the Plan nor
shall any account be subject to alienation, assignment, encumbrance, or
garnishment, voluntary or involuntary, by process of law or otherwise.
Notwithstanding the foregoing, the Company may follow the terms of any court
order issued in connection with any domestic relations proceeding including but
not limited to marital dissolution or child support.
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. Nonqualified 401(k) Plan
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)*
5 Opinion of Timothy J. Fretthold, Esq.
15 Independent Accountants' Awareness Letter
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5)
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 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, represent a fundamental change in the information set forth in this
Registration Statement. Notwithstanding the foregoing, any increase of
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any deviation
from the low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more
than a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective 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 (and, where
applicable, each filing of an employee benefit plan's annual report pursuant to
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 30th day of November, 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 November 30, 1995
and Chief Executive
Officer
*R.C. BECKER Vice President and November 30, 1995
Treasurer (Principal
Financial Officer)
*GARY E. JOHNSON Vice President and November 30, 1995
Controller(Principal
Accounting Officer)
*B. CHARLES AMES Director November 30, 1995
*E. GLENN BIGGS Director November 30, 1995
*W.E. BRADFORD Director November 30, 1995
*LAURO F. CAVAZOS Director November 30, 1995
*W.H. CLARK Director November 30, 1995
*WILLIAM L. FISHER Director November 30, 1995
*BOB MARBUT Director November 30, 1995
*KATHERINE D.ORTEGA Director November 30, 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
Timothy J. Fretthold
Attorney-in-fact
November 30, 1995
INDEX TO EXHIBITS
Exhibit
No. Exhibit
4.1 Diamond Shamrock, Inc. Nonqualified 401(k) Plan
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)*
5 Opinion of Timothy J. Fretthold, Esq.
15 Independent Accountants' Awareness Letter
23.1 Consent of Price Waterhouse LLP
23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5)
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
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