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As filed with the Securities and Exchange Commission May 11, 2001
Registration No. 333-27699
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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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
1996 LONG TERM INCENTIVE 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.
CALCULATION OF REGISTRATION FEE
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Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of
to be Registered (1) Registered Offering Price Per Offering Registration Fee
Share (2) ---------------------- (2)
Price (2)
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- ----------------------- --------------------- -------------------- ----------------------- ------------------
Common Stock, par 5,000,000 $41.73 $208,625,000 $52,157.00
value $.01 per share
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(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 $41.73, 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 May 4, 2001.
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 333-27699 on Form S-8,
filed with the Commission on May 22, 1997;
(b) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000, filed pursuant to Section 13(a) of
the Securities Exchange Act of 1934, as amended (the "1934
Act");and
(c) The Company's Current Report on Form 8-K dated May 6, 2001;
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 December 31, 2000 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 1996 Long Term
Incentive Plan, as amended and restated (incorporated
by reference to the company's Report on Schedule 14A
filed March 27, 2001)
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.
4.3 Fourth Amendment to Rights Agreement dated May 6, 2001.
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
99.1 Questions and answers relating to conversion of stock options.
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.
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 May 11, 2001
and Chief Executive Officer
*Robert S. Shapard Executive Vice President May 11, 2001
and Chief Financial Officer
(Principal Financial Officer
and Principal Accounting Officer)
*Byron Allumbaugh Director May 11, 2001
*E. Glenn Biggs Director May 11, 2001
*W. E. Bradford Director May 11, 2001
*H. Frederick Christie Director May 11, 2001
*W. H. Clark Director May 11, 2001
*Bob Marbut Director May 11, 2001
*Katherine D. Ortega Director May 11, 2001
*Madeleine Saint-Jacques Director May 11, 2001
*C. Barry Schaefer Director May 11, 2001
*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 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, directors, and members.
By: /s/ Todd Walker
Attorney-in-fact
May 11, 2001
INDEX TO EXHIBITS
Exhibit Number Description
4.1 Ultramar Diamond Shamrock Corporation 1996 Long Term
Incentive Plan, as amended and restated (incorporated by
reference to the company's Report on Schedule 14A filed March 27,
2001)
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.
4.3 Fourth Amendment to Rights Agreement dated May 6, 2001.
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
99.1 Questions and answers relating to conversion of stock options
EXHIBIT 4.3
May 6, 2001
The Chase Manhattan Bank, successor to
Texas Commerce Bank, N.A., successor to
First City, Texas-Houston, National Association
600 Travis Street, Suite 1150
Houston, Texas 77022
Attention: Janet Mysinger
Re: Amendment No. 4 to Rights Agreement
Ladies and Gentlemen:
Pursuant to Section 26 of the Rights Agreement dated as of June 25, 1992,
as amended on each of October 26, 1992, May 10, 1994 and September 22, 1996 (the
"Rights Agreement"), between Ultramar Diamond Shamrock Corporation (the
"Company") and First City, Texas-Houston, National Association, as rights agent,
the Company, by resolution adopted by its Directors, hereby amends the Rights
Agreement as follows:
Section 7(a) of the Rights Agreement is hereby amended and restated in
its entirety as follows: "(a) Subject to Section 7(e) and except as
otherwise provided herein (including Section 11), each Right shall entitle
the registered holder thereof, upon exercise thereof as provided herein, to
purchase for the Purchase Price, at any time after the Distribution Date
and at or prior to the Expiration Date, one Common Share, subject to
adjustment from time to time as provided in Sections 11 and 12. The
"Expiration Date" means the earliest of (i) the Redemption Date, (ii) the
Close of Business on July 6, 2002, and (iii) immediately prior to the
Effective Time (as defined in the Merger Agreement)."
Section 1 of the Rights Agreement is hereby amended by adding the following new
definition to Section 1:
"Merger Agreement" means the Agreement and Plan of Merger, dated as of
May 6, 2001, between the Company and Valero Energy Corporation, a Delaware
corporation ("Valero")."
The last sentence of Section 26 of the Rights Agreement is hereby amended and
restated in its entirety as follows:
"In addition, notwithstanding anything to the contrary contained in
this Rights Agreement, no supplement or amendment to this Rights Agreement
shall be made which (a) reduces the Redemption Price (except as required by
Section 12(a)) or (b) changes the last two sentences in the definition of
Acquiring Person contained in Section 1."
A new Section 34 of the Rights Agreement is hereby added as follows:
"34. Merger with Valero. Notwithstanding anything in this Agreement to the
contrary, none of Valero, any of its Affiliates or Associates or any of
their permitted assignees or transferees shall be deemed an Acquiring
Person and no Distribution Date shall be deemed to occur or to have
occurred, and the Rights will not become separable, distributable,
unredeemable or exercisable, in each such case, by reason of or as a result
of the approval, execution or delivery of the Merger Agreement, the
consummation of the Merger (as defined in the Merger Agreement) or the
consummation of the other transactions contemplated by the Merger
Agreement."
The Rights Agreement shall not otherwise be supplemented or amended by virtue of
this Amendment No. 4 to the Rights Agreement, but shall remain in full force and
effect. Capitalized terms used without other definitions in this Amendment No. 4
to the Rights Agreement shall be used as defined in the Rights Agreement.
This Amendment No. 4 to the Rights Agreement shall be deemed to be a contract
made under the internal substantive laws of the State of Delaware and for all
purposes will be governed by and construed in accordance with the internal
substantive laws of such State applicable to contracts to be made and performed
entirely within such State.
This Amendment No. 4 to the Rights Agreement may be executed in any number of
counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument. This Amendment No. 4 to the Rights Agreement shall be
effective as of, and immediately prior to, the execution and delivery of the
Merger Agreement, and all references to the Rights Agreement shall, from and
after such time, be deemed to be references to the Rights Agreement as amended
hereby.
Exhibit A to the Rights Agreement shall be deemed amended in a manner consistent
with this Amendment No. 4 to the Rights Agreement. Pursuant to Section 26 of the
Rights Agreement, the Company hereby directs the Rights Agent to accept and
agree to this Amendment No. 4 to the Rights Agreement.
Very truly yours,
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /s/ Timothy J. Fretthold
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Name: Timothy J. Fretthold
Title: Executive Vice President
Accepted and agreed to as of the effective time specified above:
THE CHASE MANHATTAN BANK, SUCCESSOR TO
TEXAS COMMERCE BANK, N.A., SUCCESSOR TO
First City, Texas-Houston, National Association
By: /s/Janet Mysinger
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Name: Janet Mysinger
Title: Vice President and Trust Officer
Exhibit 5.1
May 11, 2001
Ultramar Diamond Shamrock Corporation
P.O. Box 696000
San Antonio, Texas 78269-6000
Re: Ultramar Diamond Shamrock Corporation 1996 Long-Term Incentive Plan, as
Amended and Restated (the "Plan").
Ladies and 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 May 11, 2001 under the Securities Act of 1933, as
amended, a Registration Statement on Form S-8/A (the "Registration Statement")
for the purpose of registering 5,000,000 shares of common stock, $.01 par value
of the Company ("Common Stock") issuable under the Plan .
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 the
purpose 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 Plan, legally issued, fully paid,
and nonassessable and the rights to purchase common stock (the "Rights") in
accordance with the Rights Agreement dated June 25, 1992 between the Company and
The Chase Manhattan Bank, when duly issued, will be legally issued.
I hereby consent to the filing of this opinion as an exhibit to the
Registration Statement filed by the Company with the Securities and Exchange
Commission to register the Common Stock under the Securities Act of 1933, as
amended.
Sincerely,
/S/ Todd Walker
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our report dated
March 14, 2001 included in Ultramar Diamond Shamrock Corporation's Form 10-K for
the year ended December 31, 2000 and to all references to our firm included in
this registration statement.
/S/ Arthur Andersen LLP
San Antonio, Texas
May 11, 2001
Exhibit 24.1
POWER OF ATTORNEY
Ultramar Diamond Shamrock Corporation hereby constitutes and appoints
Timothy J. Fretthold and Todd Walker, or either of them, its true and lawful
attorneys-in-fact and agents, each with full power of substitution and
resubstitution, to do any and all acts and things in its name and behalf, and to
execute any and all instruments for it and in its name which the said
attorneys-in-fact and agents, or either of them, may deem necessary or advisable
to enable Ultramar Diamond Shamrock Corporation to comply with the Securities
Act of 1933, as amended, and any rules, regulations and requirements of the
Securities and Exchange Commission in connection with a Registration Statement
on Form S-8, including without limitation power and authority to sign for it
such Registration Statement and power and any and all amendments (including
post-effective amendments) thereto, and to file the same, with all exhibits
thereto, and other documents in connection therewith with the Securities and
Exchange Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitute or substitutes, or any one of
them, shall do or cause to be done by virtue hereof.
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /S/Jean R. Gaulin
-----------------------
Chairman, President, and
Chief Executive Officer
Dated: May 7, 2001
Exhibit 24.2
POWER OF ATTORNEY
The undersigned directors and/or officers of Ultramar Diamond Shamrock
Corporation, hereby constitute and appoint Timothy J. Fretthold and Todd Walker,
or either of them, as the true and lawful attorneys-in-fact and agents of the
undersigned, each with full power of substitution and resubstitution, to do any
and all acts and things in their names and in their respective capacities as a
director and/or an officer of Ultramar Diamond Shamrock Corporation, and to
execute any and all instruments for them and in their names in the capacities
indicated above, which said attorneys-in-fact and agents, or either of them, may
deem necessary or advisable to enable Ultramar Diamond Shamrock Corporation to
comply with the Securities Act of 1933, as amended, and any rules, regulations
and requirements of the Securities and Exchange Commission in connection with a
Registration Statement on Form S-8 covering up to 5,000,000 shares of common
stock of the company, $.01 par value, including without limitation power and
authority to sign for them, in their name in the capacities indicated above,
such Registration Statement and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission,
hereby ratifying and confirming all that the said attorneys-in-fact and agents,
or their substitute or substitutes, or any one of them, shall do or cause to be
done by virtue hereof.
/S/ Jean R. Gaulin /S/Bob Marbut
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Jean Gaulin Bob Marbut
/S/ Byron Allumbaugh /S/Katherine D. Ortega
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Byron Allumbaugh Katherine D. Ortega
/S/ E. Glenn Biggs /S/Madeleine Saint-Jacques
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E. Glenn Biggs Madeleine Saint-Jacques
/S/ W. E. Bradford /S/ C. Barry Schaefer
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W. E. Bradford C. Barry Schaefer
/S/ H. Frederick Christie /S/Robert S. Shapard
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H. Frederick Christie Robert S. Shapard
/S/W. H. Clark
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W. H. Clark
Dated: May 7, 2001