-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, o9UDElaD88mzlXvKprFM7e/LvoWf+ZhUinBREUkcKARQ2a9VpBrNcUdwrEWhAUjZ nrj75lkH5UCHz+8iaUanEA== 0000810316-95-000019.txt : 19950530 0000810316-95-000019.hdr.sgml : 19950530 ACCESSION NUMBER: 0000810316-95-000019 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 19950519 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: DIAMOND SHAMROCK INC CENTRAL INDEX KEY: 0000810316 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 742456753 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 033-59451 FILM NUMBER: 95541043 BUSINESS ADDRESS: STREET 1: P O BOX 696000 CITY: SAN ANTONIO STATE: TX ZIP: 78230 BUSINESS PHONE: 2106416800 MAIL ADDRESS: STREET 1: P O BOX 696000 CITY: SAN ANTONIO STATE: TX ZIP: 78230 FORMER COMPANY: FORMER CONFORMED NAME: DIAMOND SHAMROCK R&M INC DATE OF NAME CHANGE: 19900207 S-3 1 As filed with the Securities and Exchange Commission on May 19, 1995 REGISTRATION NO. 33- Post-Effective Amendment No. 1 to Registration No. 33-67556 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ---------------------- FORM S-3 Registration Statement and Post-Effective Amendment No. 1 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 (I.R.S. Employer Identification incorporation or organization) Number) 9830 Colonnade Boulevard San Antonio, Texas 78230 (210) 641-6800 (Address, including zip code, and telephone number, including area code, of Registrant's principal executive offices) --------------------- TIMOTHY J. FRETTHOLD, ESQ. SENIOR VICE PRESIDENT/GROUP EXECUTIVE AND GENERAL COUNSEL 9830 COLONNADE BOULEVARD San Antonio, Texas 78230 (210) 641-6800 (Name, address, including zip code, and telephone number, including area code, of agent for service) ----------------------- Copies to: ROBERT A. PROFUSEK, ESQ. JOHN B. TEHAN, ESQ. JONES, DAY, REAVIS & POGUE SIMPSON THACHER & BARTLETT 599 LEXINGTON AVENUE 425 LEXINGTON AVENUE 30TH FLOOR NEW YORK, NEW YORK 10017 NEW YORK, NEW YORK 10022 (212) 455-2000 (212) 326-3800 -------------------- -------------------- Approximate date of commencement of proposed sale to the public: From time to time after the Registration Statement becomes effective, as determined by market conditions. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, as amended (the "Securities Act") other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. [x] CALCULATION OF REGISTRATION FEE PROPOSED PROPOSED MAXIMUM MAXIMUM TITLE OF EACH CLASS OFFERING AGGREGATE OF SECURITIES TO BE AMOUNT TO BE PRICE PER OFFERING AMOUNT OF REGISTERED(1) REGISTERED(2) UNIT(2)(3)(4) PRICE(4)(5) REGISTRATION FEE Debt Securities Debt Warrants Preferred Stock Preferred Stock Warrants Common Stock(6) Common Stock Warrants Total - - $150,000,000 $51,724.14 (1) This Registration Statement also covers (i) Debt Securities, Common Stock, and Preferred Stock which may be issued upon the exercise of Securities Warrants, and (ii) such indeterminate amount of securities as may be issued in exchange for, or upon conversion of, as the case may be, the securities registered hereunder. Any of the securities registered hereunder may be sold separately or as units with other securities registered hereunder. (2) Not specified as to each class of securities to be registered hereunder pursuant to General Instruction II.D of Form S-3 under the Securities Act. (3) The proposed maximum offering price per unit will be determined from time to time by the Registrant in connection with, and at the time of, the issuance by the Registrant of the Securities registered hereunder. (4) In United States Dollars or the equivalent thereof in one or more foreign currencies or composite currencies, including European Currency Units. (5) Estimated solely for purposes of calculation of the registration fee pursuant to Rule 457(o) of the Securities Act. (6) Includes Preferred Stock Purchase Rights ("Rights"). The Rights are associated with and trade with the Common Stock. See "Preferred Stock - Preferred Stock Purchase Rights" in the prospectus contained herein. The value, if any, attributable to the Rights is reflected in the market price of the Common Stock. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. In accordance with Rule 429 under the Securities Act, the Prospectus contained herein also relates to $25,000,000 aggregate principal amount of unsold Debt Securities covered by Registration Statement No. 33-67556 of the Registrant. INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION, OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED MAY 19, 1995 PROSPECTUS DIAMOND SHAMROCK, INC. $175,000,000 $150,000,000 Debt Securities Common Stock Preferred Stock Warrants Diamond Shamrock, Inc. (the "Company") may, from time to time, offer or solicit offers to purchase (a) its unsecured senior debt securities, (the "Debt Securities") having an aggregate initial public offering price not to exceed $175,000,000 or the equivalent thereof in one or more foreign currencies or composite currencies, including European Currency Units, on terms to be determined at the time of sale, or (b) its (i) warrants to purchase the Debt Securities (the "Debt Warrants"), (ii) shares of preferred stock, par value $0.01 per share (the "Preferred Stock"), (iii) warrants to purchase shares of Preferred Stock ("Preferred Stock Warrants"), (iv) shares of common stock, par value $0.01 per share (the "Common Stock"), and (v) warrants to purchase shares of Common Stock ("Common Stock Warrants"), having an aggregate initial public offering price not to exceed $150,000,000 or the equivalent thereof in one or more foreign currencies or composite currencies, including European Currency Units, on terms to be determined at the time of sale (the Debt Warrants, Preferred Stock Warrants and Common Stock Warrants being referred to herein collectively as the "Securities Warrants"). The Debt Securities, Preferred Stock, Common Stock and Securities Warrants offered hereby (collectively, the "Offered Securities") may be offered separately or as units with other Offered Securities, in separate series, in amounts, at prices, and on terms, to be determined at the time of sale and to be set forth in a supplement to this Prospectus (a "Prospectus Supplement"). The specific terms of the Offered Securities in respect of which this prospectus is being delivered, such as, where applicable, (i) in the case of Debt Securities, the specific designation, aggregate principal amount, denominations, maturity, interest rate (which may be fixed or variable) and time of payment of interest, if any, coin or currency in which principal, premium, if any, and interest, if any, will be payable, any terms for redemption, exchange, or conversion, any terms for sinking fund payments, the initial public offering price, the names of, the principal amounts to be purchased by, and the compensation of, underwriters, dealers, or agents, if any, (ii) in the case of Preferred Stock, the specific title and stated value, number of shares, the dividend, liquidation, exchange, redemption, conversion, voting, and other rights, and the initial public offering price, (iii) in the case of Common Stock, the initial public offering price; (iv) in the case of Securities Warrants, the duration, offering price, exercise price and detachability thereof; and (v) in the case of all Offered Securities, whether such Offered Securities will be offered separately or as a unit with other Offered Securities, will be set forth in the accompanying Prospectus Supplement. The Prospectus Supplement will also contain information, where applicable, concerning certain United States Federal income tax considerations relating to, and any listing on a securities exchange of, the Offered Securities covered by the Prospectus Supplement. THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The Offered Securities may be sold directly to purchasers or through underwriters, dealers, or agents. If any underwriters, dealers, or agents are involved in the sale of any Offered Securities, their names and any applicable fee, commission, or discount arrangements will be set forth in the Prospectus Supplement. The principal amount or number of shares of Offered Securities, the purchase price thereof, and the net proceeds to the Company from sales of Offered Securities will be set forth in the Prospectus Supplement. The net proceeds to the Company of the sale of Offered Securities will be the purchase price of such Offered Securities less attributable issuance expenses, including underwriters', dealers', or agents' compensation arrangements. See "Plan of Distribution" for indemnification arrangements for underwriters, dealers, and agents. This prospectus may not be used to consummate sales of Offered Securities unless accompanied by a Prospectus Supplement. The date of this Prospectus is May , 1995 NO DEALER, SALESMAN, OR ANY OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY REPRESENTATIONS OTHER THAN THOSE CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROSPECTUS OR THE PROSPECTUS SUPPLEMENT DELIVERED HEREWITH AND, IF GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER, OR AGENT. THIS PROSPECTUS AND THE PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OFFERED SECURITIES BY ANYONE IN ANY JURISDICTION IN WHICH THE OFFER OR SOLICITATION IS NOT AUTHORIZED OR IN WHICH THE PERSON MAKING THE OFFER OR SOLICITATION IS NOT AUTHORIZED TO DO SO OR TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. AVAILABLE INFORMATION The Company is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy statements, and other information with the Securities and Exchange Commission (the "Commission"). Such reports, proxy statements, and other information filed by the Company can be inspected and copied at the Public Reference Room of the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549 and at the public reference facilities maintained by the Commission at 7 World Trade Center, Suite 1300, New York, New York 10048 and Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661-2511. Copies of such materials can be obtained at prescribed rates from the Public Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549. Documents filed by the Company can also be inspected at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005, on which exchange certain of the Company's securities are listed. This Prospectus constitutes a part of a Registration Statement filed by the Company with the Commission under the Securities Act of 1933, as amended (the "Securities Act"), relating to the securities offered hereby. This Prospectus omits certain of the information contained in the Registration Statement, and reference is hereby made to the Registration Statement and to the exhibits relating thereto for further information with respect to the Company and the securities offered hereby. Any statements contained herein concerning the provisions of any document are not necessarily complete, and in each instance reference is made to the copy of such document filed as an exhibit to the Registration Statement or otherwise filed with the Commission. Each such statement is qualified in its entirety by such reference. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The Company hereby incorporates into this Prospectus by reference the Company's (i) Annual Report on Form 10-K for the year ended December 31, 1994 (the "1994 Form 10-K"), filed pursuant to the Exchange Act, which contains the consolidated financial statements of the Company and the report thereon of Price Waterhouse LLP, (ii) Quarterly Report on Form 10-Q for the quarter ended March 31, 1995, and (iii) Current Reports on Form 8-K, dated January 25, 1995 and February 6, 1995. All documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14, or 15(d) of the Exchange Act, prior to the termination of the offering made hereby, shall be deemed incorporated by reference in this Prospectus and to be a part of this Prospectus from the date of the filing of such reports. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Prospectus to the extent that a statement contained herein or in any subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Prospectus. Any person receiving a copy of this Prospectus may obtain, without charge, upon written or oral request, a copy of any of the documents incorporated by reference herein, except for the exhibits to such documents (other than the exhibits expressly incorporated in such documents by reference). Requests should be directed to: Investor Relations, Diamond Shamrock, Inc., P.O. Box 696000, San Antonio, Texas 78269-6000 (telephone 210-641-6800). THE COMPANY Diamond Shamrock, Inc. is the leading independent refiner and marketer of petroleum products in the southwestern United States. Its principal activities consist of crude oil refining, wholesale marketing of petroleum products, and retail marketing of petroleum products and other merchandise through Company- operated retail outlets. In addition, the Company processes petrochemicals and is engaged in the marketing, distribution, and storage of natural gas liquids. The Company's principal executive offices are located at 9830 Colonnade Boulevard, San Antonio, Texas 78230 (in person); P.O. Box 696000, San Antonio, Texas 78269-6000 (by mail). Its telephone number is 210-641-6800. EARNINGS RATIOS The following table sets forth the ratio of earnings to fixed charges and the ratio of earnings to combined fixed charges and preferred stock dividends the three month periods ended March 31, 1995 and 1994 and for each of the years in the five-year period ended December 31, 1994. For purposes of computing the ratio of earnings to fixed charges and the ratio of earnings to combined fixed charges and preferred stock dividends, earnings consist of income before income taxes and fixed charges, and fixed charges consist of interest on outstanding debt, amortization of debt issuance expense, and one-third of rental payments on operating leases (such amount having been deemed by the Company to represent the interest portion of such payments). Three Months Ended March 31 Year Ended December 31, 1995 1994 1994 1993 1992 1991 1990 Ratio of Earnings to 1.5 2.4 3.2 2.0 1.7 2.1 3.5 Fixed Charges Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends 1.4 2.2 2.9 1.8 1.7 2.1 3.3 USE OF PROCEEDS The Offered Securities may be offered by the Company from time to time when market conditions are determined by the Company to be favorable. Unless otherwise indicated in the applicable Prospectus Supplement, the net proceeds from the sale of the Offered Securities will be added to the Company's funds and used for general corporate purposes. DESCRIPTION OF DEBT SECURITIES The following description of the Debt Securities sets forth certain general terms and provisions of the Debt Securities to which any Prospectus Supplement may relate. The particular terms of the Debt Securities offered by any Prospectus Supplement (the "Offered Debt Securities") and the extent, if any, to which such general provisions do not apply to the Offered Debt Securities will be described in the Prospectus Supplement relating to such Offered Debt Securities. The Debt Securities to which this Prospectus relates will be issued under an Indenture dated as of December 15, 1989 (the "Indenture"), between the Company and The First National Bank of Chicago, as trustee (the "Trustee"), which is filed as an exhibit to the Registration Statement. The following summaries of certain provisions of the Indenture do not purport to be complete and are subject to, and are qualified in their entirety by reference to, all the provisions of the Indenture, including the definitions therein of certain terms. Numerical references in parentheses below are to sections in the Indenture. Whenever particular sections or defined terms of the Indenture are referred to, such sections or defined terms are incorporated herein by reference. General The Indenture does not limit the amount of Debt Securities which may be issued thereunder and provides that Debt Securities may be issued thereunder from time to time in one or more series up to the aggregate principal amount which may be authorized from time to time by the Company. All Debt Securities will be unsecured and will rank pari passu with all other unsecured unsubordinated indebtedness of the Company. The Company is primarily a holding company and the Debt Securities will not be guaranteed by any of the Company's Subsidiaries. As a result, the right of creditors of the Company upon its liquidation, reorganization, or otherwise is necessarily subject to the claims of creditors of the Company's Subsidiaries, except to the extent that claims of the Company itself as a creditor of any of its Subsidiaries may be recognized. Except as described below, the Indenture does not limit the amount of other indebtedness or securities which may be issued by the Company. Reference is made to the Prospectus Supplement relating to the particular series of Offered Debt Securities offered thereby for the following terms of such series of Offered Debt Securities: (i) the designation, aggregate principal amount, and authorized denominations of such Offered Debt Securities; (ii) the purchase price of such Offered Debt Securities (expressed as a percentage of the principal amount thereof); (iii) the date or dates on which such Offered Debt Securities will mature; (iv) the rate or rates per annum, if any (which may be fixed or variable), at which such Offered Debt Securities will bear interest or the method by which such rate or rates will be determined; (v) the dates on which such interest will be payable and the record dates for payment of interest, if any; (vi) the coin or currency in which payment of the principal of (and premium, if any) or interest, if any, on such Offered Debt Securities will be payable; (vii) the terms of any mandatory or optional redemption (including any sinking fund) or any obligation of the Company to repurchase Offered Debt Securities; (viii) whether such Offered Debt Securities are to be issued in whole or in part in the form of one or more temporary or permanent global Debt Securities ("Global Securities") and, if so, the identity of the depositary, if any, for such Global Security or Securities; and (ix) any other additional provisions or specific terms which may be applicable to that series of Offered Debt Securities. Principal, premium, if any, and interest, if any, will be payable, and the Debt Securities will be transferable or exchangeable, at the office or agency of the Company maintained for such purposes in the Borough of Manhattan, The City of New York, provided that payment of interest on any Debt Securities may, at the option of the Company, be made by check mailed to the registered holders. Interest, if any, will be payable on any Interest Payment Date to the persons in whose names the Debt Securities are registered at the close of business on the record date with respect to such Interest Payment Date (Sections 305, 307 and 1202). Unless otherwise indicated in the Prospectus Supplement relating thereto, the Debt Securities will be issued only in fully registered form, without coupons, in denominations of $1,000 or any integral multiple thereof. No service charge will be made for any registration of transfer or exchange of the Debt Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith (Sections 302 and 305). Some or all of the Debt Securities may be issued as discounted Debt Securities (bearing no interest or interest at a rate which at the time of issuance is below market rates) to be sold at a substantial discount below their stated principal amount. Federal income tax consequences and other special considerations applicable to any such discounted Debt Securities will be described in the Prospectus Supplement relating thereto. Global Securities The Debt Securities of a series may be issued in whole or in part in the form of one or more Global Securities that will be deposited with or on behalf of a depositary located in the United States (a "Depositary") identified in the Prospectus Supplement relating to such series. The specific terms of the depositary arrangements with respect to any Debt Securities of a series will be described in the Prospectus Supplement relating to such series. The Company anticipates that the following provisions will apply to all depositary arrangements. Unless otherwise specified in an applicable Prospectus Supplement, Debt Securities which are to be represented by a Global Security to be deposited with or on behalf of a Depositary will be represented by a Global Security registered in the name of such depositary or its nominee. Upon the issuance of a Global Security in registered form, the Depositary for such Global Security will credit, on its book-entry registration and transfer system, the respective principal amounts of the Debt Securities represented by such Global Security to the accounts of institutions that have accounts with such Depositary or its nominee ("participants"). The accounts to be credited shall be designated by the underwriters or agents of such Debt Securities or by the Company, if such Debt Securities are offered and sold directly by the Company. Ownership of beneficial interests in such Global Securities will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests by participants in such Global Securities will be shown on, and the transfer of that ownership interest will be effected only through, records maintained by the Depositary or its nominee for such Global Security. Ownership of beneficial interests in Global Securities by persons that hold through participants will be shown on, and the transfer of that ownership interest within such participant will be effected only through, records maintained by such participant. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of such securities in definitive form. Such limits and such laws may impair the ability to transfer beneficial interests in a Global Security. So long as the Depositary for a Global Security in registered form, or its nominee, is the registered owner of such Global Security, such Depositary or such nominee, as the case may be, will be considered the sole owner or holder of the Debt Securities represented by such Global Security for all purposes under the Indenture governing such Debt Securities. Except as set forth below, owners of beneficial interests in such Global Security will not be entitled to have Debt Securities of the series represented by such Global Security registered in their names, will not receive or be entitled to receive physical delivery of Debt Securities of such series in definitive form, and will not be considered the owners or holders thereof under the Indenture. Payment of principal of, premium, if any, and any interest on Debt Securities registered in the name of or held by a Depositary or its nominee will be made to the Depositary or its nominee, as the case may be, as the registered owner or the holder of the Global Security representing such Debt Securities. None of the Company, the Trustee, any Paying Agent, or the Security Registrar for such Debt Securities will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in a Global Security for such Debt Securities or for maintaining, supervising, or reviewing any records relating to such beneficial ownership interests. The Company expects that the Depositary for Debt Securities of a series, upon receipt of any payment of principal, premium, or interest in respect of a permanent Global Security, will credit immediately participants' accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount of such Global Security as shown on the records of the Depositary. The Company also expects that payments by participants to owners of beneficial interests in such Global Security held through such participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in "street name," and will be the responsibility of such participants. However, the Company has no control over the practices of the Depositary and/or the participants and there can be no assurance that these practices will not be changed. A Global Security may not be transferred except as a whole by the Depositary for such Global Security to a nominee of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any such nominee to a successor of such Depositary or a nominee of such successor (Section 304). If a Depositary for Debt Securities of a series is at any time unwilling or unable to continue as depositary and a successor depositary is not appointed by the Company within 90 days, the Company will issue Debt Securities in definitive registered form in exchange for the Global Security or Securities representing such Debt Securities. In addition, the Company may at any time and in its sole discretion determine not to have any Debt Securities in registered form represented by one or more Global Securities and, in such event, will issue Debt Securities in definitive form in exchange for the Global Security or Securities representing such Debt Securities. In any such instance, an owner of a beneficial interest in a Global Security will be entitled to physical delivery in definitive form of Debt Securities of the series represented by such Global Security equal in principal amount to such beneficial interest and to have such Debt Securities registered in its name. Limitations on the Company and Certain Subsidiaries Limitations on Mortgages. The Indenture provides that neither the Company nor any Subsidiary of the Company will issue, assume, or guarantee any notes, bonds, debentures, or other similar evidences of indebtedness for money borrowed ("Debt") secured by any mortgages, liens, pledges, or other encumbrances ("Mortgages") upon any asset or any interest it may have therein or of or upon any stock or indebtedness of any Subsidiary, whether now owned or hereafter acquired, without effectively providing that all Debt Securities issued under the Indenture (together with, if the Company so determines, any other indebtedness or obligation then existing or thereafter created ranking equally with the Debt Securities) will be secured equally and ratably with (or prior to) such Debt so long as such Debt will be so secured, except that this restriction will not apply to: (i) Mortgages securing the purchase price or cost of construction of property (or additions, substantial repairs, alterations, or substantial improvements thereto if the amount of such Debt does not exceed the cost thereof), provided such Debt and the Mortgages are incurred within 18 months of the acquisition or completion of construction and full operation, or the completion of such repairs, alterations, or improvements, as the case may be; (ii) Mortgages existing on property at the time of its acquisition by the Company or a Subsidiary or on the property of a corporation at the time of the acquisition of such corporation by the Company or a Subsidiary (including acquisitions through merger or consolidation); (iii) Mortgages to secure Debt on which the interest payments are exempt from federal income tax under Section 103 of the Internal Revenue Code of 1986, as amended (the "Code"); (iv) in the case of a Subsidiary, Mortgages in favor of the Company or a Subsidiary; (v) Mortgages existing on the date of the Indenture; (vi) certain Mortgages incurred in the ordinary course of business and Mortgages to governmental entities; (vii) Mortgages incurred in connection with the borrowing of funds if within 120 days such funds are used to repay Debt in the same principal amount secured by other Mortgages on assets or receivables having a fair market value (as determined by the chief financial officer of the Company) at least equal to the fair market value of the assets or receivables which secure the new Mortgage; (viii) Mortgages incurred within 90 days (or any longer period, not in excess of one year, as permitted by law) after acquisition of the property or equipment subject to such Mortgage arising solely in connection with the transfer of tax benefits in accordance with Section 168(f)(8) of the Code (or any similar provision adopted hereafter); (ix) Mortgages on accounts receivable of the Company or its Subsidiaries which secure obligations not exceeding at any time the lesser of 90% of Consolidated Receivables (as defined below) or $100,000,000, provided that the dollar limitation of $100,000,000 will increase at a compounded rate of 10% each April 1, with the first such increase effective on April 1, 1990 and subsequent increases to be effective on and as of each succeeding April 1, provided further, however, that in no event will such dollar limitation exceed $300,000,000; and (x) any extension, renewal, or replacement of any Mortgage referred to in the foregoing clauses (i) through (ix), provided the dollar amount secured is not increased (Section 1205). Limitations on Sale and Lease-Back Transactions. The Indenture provides that neither the Company nor any Subsidiary will enter into any Sale and Lease- Back Transaction with respect to any asset owned by it with any person (other than the Company or a Subsidiary) unless either (i) the Company or such Subsidiary would be entitled, pursuant to the provisions described in clauses (i) through (x) under "Limitations on Mortgages" above, to incur Debt secured by a Mortgage on the asset to be leased without equally and ratably securing the Debt Securities, or (ii) the Company during or immediately after the expiration of 120 days after the effective date of such transaction applies to the voluntary retirement of its Funded Debt an amount equal to the greater of the net proceeds of the sale of the property leased in such transaction or the fair market value (as determined by the chief financial officer of the Company) of the leased property at the time such transaction was entered into, in each case net of the principal amount of all Debt Securities delivered under the Indenture (Section 1206). Exempted Transactions. Notwithstanding the foregoing, the Company and any one or more Subsidiaries may, without securing the Debt Securities, issue, assume, or guarantee Debt secured by Mortgages and enter into Sale and Lease- Back Transactions which would otherwise be subject to the foregoing restrictions in an aggregate principal amount which, together with all other such Debt of the Company and its Subsidiaries secured by Mortgages (not including Debt permitted to be secured pursuant to clauses (i) through (x) under "Limitations on Mortgages" above) and the aggregate Attributable Debt (as defined below) in respect of Sale and Lease-Back Transactions (not including those permitted as described under "Limitations on Sale and Lease-Back Transactions" above), does not exceed 15% of Consolidated Net Tangible Assets (as defined below) of the Company and its consolidated Subsidiaries (Section 1207). Certain Definitions. The term "Consolidated Net Tangible Assets" at any date means the total assets shown on a consolidated balance sheet of the Company and its Subsidiaries, prepared in accordance with generally accepted accounting principles, less (i) all current liabilities, and (ii) goodwill and like intangibles included on such balance sheet. The term "Attributable Debt" means (a) as to any capitalized lease obligations, the Debt carried on the balance sheet in accordance with generally accepted accounting principles, and (b) as to any operating leases, the total net amount of rent required to be paid under such leases during the remaining term thereof discounted at the rate of 1% per annum over the weighted average yield to maturity of all Debt Securities issued and outstanding under the Indenture, including any outstanding Debt Securities, compounded semi-annually. The term "Consolidated Receivables" at any date means the aggregate amount of all accounts receivable of the Company and its Subsidiaries at the end of the most recent fiscal quarter, as shown on the consolidated balance sheet of the Company and its Subsidiaries in respect of such quarter, or in respect of the fiscal year in the case of the fourth quarter (Section 101). Events of Default The following are "Events of Default" under the Indenture with respect to Debt Securities of any series: (i) failure to pay principal of or any premium on any Debt Security of that series when due; (ii) failure to pay any interest on any Debt Security of that series when due, and the continuation of such failure for 30 days; (iii) failure to deposit any sinking fund payment in respect of any Debt Security of that series when due; (iv) failure to perform any other covenant of the Company in the Indenture (other than a covenant included in the Indenture solely for the benefit of a series of Debt Securities other than the series), continued for 60 days after written notice as provided in the Indenture; (v) certain events in bankruptcy, insolvency, or reorganization; (vi) indebtedness for borrowed money of the Company or any Subsidiary in excess of $10,000,000 (whether such indebtedness now exists or is hereafter created) is not paid at final maturity or becomes or is declared due and payable prior to the date or dates on which such indebtedness would otherwise have become due and payable as a result of the occurrence of one or more events of default as defined in any mortgages, indentures, or instruments under which such indebtedness may have been issued or by which such indebtedness may have been secured, and such failure to pay shall not be cured or such acceleration or accelerations, as the case may be, shall not be rescinded, annulled, or cured, in any case prior to the expiration of 30 days after the date such failure to pay or acceleration or accelerations occurred; and (vii) any other Event of Default provided with respect to Debt Securities of that series (Section 501). If any Event of Default with respect to Debt Securities of any series at any time outstanding occurs and is continuing, either the Trustee or the Holders of at least 25% in aggregate principal amount of the outstanding Debt Securities of that series may declare the principal amount (or, if the Debt Securities of that series are Discount Securities, such portion of the principal amount as may be specified in the terms of that series) of all the Debt Securities of that series to be due and payable immediately. At any time after a declaration of acceleration with respect to Debt Securities of any series has been made, but before a judgment or decree based on acceleration has been obtained, the Holders of a majority in aggregate principal amount of outstanding Debt Securities of that series may, under certain circumstances, rescind and annul such acceleration (Section 502). The Indenture provides that, subject to the duty of the Trustee during the continuance of an Event of Default to act with the required standard of care, the Trustee will be under no obligation to exercise any of its rights or powers under the Indenture at the request or direction of any of the Holders, unless such Holders have offered to the Trustee reasonable indemnity (Section 603). Subject to such provisions for the indemnification of the Trustee, the Holders of a majority in aggregate principal amount of the outstanding Debt Securities of any series will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Debt Securities of that series (Section 512). The Company is required to furnish the Trustee annually with a statement as to the performance by the Company of certain of its obligations under the Indenture and as to any default in such performance (Section 1208). Modification and Waiver Modifications of and amendments to the Indenture may be made by the Company and the Trustee with the consent of the Holders of not less than two-thirds in aggregate principal amount of the outstanding Debt Securities of each series affected by such modification or amendment; provided, however, that no such modification or amendment may, without the consent of the Holder of each outstanding Debt Security affected thereby, (i) change the Stated Maturity of the principal of, or any installment of interest, if any, on, any Debt Security, (ii) reduce the principal amount of, or any premium or interest on, any Debt Security, (iii) reduce the amount of principal of Discount Securities payable upon acceleration of the stated maturity thereof, (iv) change the currency of payment of principal of, or any premium or interest on, any Debt Security, (v) impair the right to institute suit for the enforcement of any payment on or with respect to any Debt Security, or (vi) reduce the percentage in principal amount of outstanding Debt Securities of any series, the consent of whose Holders is required for modification or amendment of the Indenture or for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults (Section 1102). The Holders of a majority in aggregate principal amount of the outstanding Debt Securities of each series may, on behalf of all Holders of Debt Securities of that series, waive any past default under the Indenture with respect to Debt Securities of that series, except a default in the payment of principal or any premium or interest or a covenant or provision that cannot be modified or amended without the consent of the Holders of each outstanding Debt Security affected thereby (Section 513). Consolidation, Merger, Sale, or Lease of Assets The Company, without the consent of the Holders of any of the outstanding Debt Securities under the Indenture, may consolidate with or merge into, or transfer or lease its assets substantially as an entirety to, any corporation organized under laws of any domestic jurisdiction, provided that the successor corporation assumes the Company's obligations on the Debt Securities and that under the Indenture, after giving effect to the transactions, no Event of Default, and no event which, after notice or lapse of time, would become an Event of Default, shall have occurred and be continuing, and that certain other conditions are met (Section 1001). Defeasance The Indenture provides that the Company, at its option, (i) will be discharged from any and all obligations in respect of any series of Debt Securities (except for certain obligations to register the transfer or exchange of the Debt Securities; replace stolen, lost, or mutilated Debt Securities; maintain paying agencies; and hold money for payment in trust), or (ii) will not be subject to provisions of the Indenture concerning limitations upon Mortgages; Sale and Lease-Back Transactions; and consolidation, merger, and sale of assets, in each case if the Company deposits with the Trustee, in trust, money or U.S. Government Obligations which through the payment of interest thereon and principal thereof in accordance with their terms will provide money in an amount sufficient to pay all principal, premium, if any, and interest on the Debt Securities of such series on the dates such payments are due in accordance with the terms of such Debt Securities. To exercise any such option, the Company is required, among other things, to deliver an opinion of counsel to the Trustee to the effect that (a) the Company has received from or there has been published by the Internal Revenue Service a ruling to the effect that the deposit and related defeasance would not cause the Holders of such series of Debt Securities to recognize income, gain, or loss for United States federal income tax purposes and (b) if such series of Debt Securities are then listed on any national securities exchange, such Debt Securities would not be delisted from such exchange as a result of the exercise of such option (Article Fifteen). Notices Notices to Holders will be given by mail to the addresses of such Holders as they appear in the Security Register (Sections 101, 105). Governing Law The Indenture and the Debt Securities will be governed by, and construed in accordance with, the laws of the State of New York (Section 111). Concerning the Trustee The Trustee has normal banking relationships with the Company. DESCRIPTION OF CAPITAL STOCK The following description of the Company's capital stock is subject to the detailed provisions of the Company's Certificate of Incorporation (the "Certificate"). These statements do not purport to be complete and are qualified in their entity by reference to the terms of the Certificate, which is incorporated by reference in this Prospectus. Under the Certificate, the Company has the authority to issue 25,000,000 shares of Preferred Stock, $.01 par value, and 75,000,000 shares of Common Stock, $.01 par value. As of April 30, 1995, 1,725,000 shares of the Company's 5% Cumulative Convertible Preferred Stock and 29,022,475 shares of Common Stock were issued, of which 8,015 shares of Common Stock were held in treasury. The outstanding shares of Common Stock and Preferred Stock are fully paid and nonassessable. As of such date, 1,983,911 shares of Common Stock were reserved for issuance pursuant to the Company's 1987 and 1990 Long-Term Incentive Plans, and 750,000 shares of the Company's Series A Junior Participating Preferred Stock, $.01 par value, were reserved for issuance pursuant to the Rights Agreement (the "Rights Agreement"), dated March 6, 1990, between the Company and Society National Bank, as Rights Agent. An additional 3,254,716 shares of Common Stock are reserved for issuance upon conversion of the Company's 5% Cumulative Convertible Preferred Stock. See "5% Cumulative Convertible Preferred Stock." Preferred Stock The following description of the terms of the Preferred Stock sets forth certain general terms and provisions of the Preferred Stock to which a Prospectus Supplement may relate. Specific terms of any series of Preferred Stock offered by a Prospectus Supplement will be described in the Prospectus Supplement relating to such series of Preferred Stock. The description set forth below is subject to and qualified in its entirety by reference to the Certificate and the form of Certificate of Designations (the "Designation") establishing a particular series of Preferred Stock which will be filed with the Commission in connection with the offering of such series of Preferred Stock. General. Under the Certificate, the Board of Directors of the Company (the "Board of Directors") is authorized, without further shareholder action, to provide for the issuance of up to 25,000,000 shares of Preferred Stock, in one or more series, and to fix the designations, terms, and relative rights and preferences, including the dividend rate, voting rights, conversion rights, redemption and sinking fund provisions and liquidation values of each such series. The Company may amend the Certificate from time to time to increase the number of authorized shares of Preferred Stock. Any such amendment would require the approval of the holders of a majority of the outstanding shares of all series of Preferred Stock voting together as a single class without regard to series. As of the date of this Prospectus, the Company has one series of Preferred Stock outstanding. The Preferred Stock will have the dividend, liquidation, redemption, conversion, and voting rights set forth below unless otherwise provided in the Prospectus Supplement relating to a particular series of Preferred Stock. Reference is made to the Prospectus Supplement relating to the particular series of the Preferred Stock offered thereby for specific terms, including, (i) the title and liquidation preference per share of such Preferred Stock and the number of shares offered; (ii) the price at which such Preferred Stock will be issued; (iii) the dividend rate (or method of calculation), the dates on which dividends shall be payable and the dates from which dividends shall commence to accumulate; (iv) any redemption or sinking fund provisions of such Preferred Stock; (v) any conversion or exchange provisions of such Preferred Stock; (vi) the voting rights, if any, of such Preferred Stock; and (vii) any additional dividend, liquidation, redemption, sinking fund and other rights, preferences, privileges, limitations, and restrictions of such Preferred Stock. The Preferred Stock will, when issued, be fully paid and nonassessable. Dividend Rights. The Preferred Stock will be preferred over the Common Stock as to payment of dividends. Before any dividends or distributions on the Common Stock shall be declared and set apart for payment or paid, the holders or shares of each series of Preferred Stock shall be entitled to receive dividends (either in cash, shares of Common Stock or Preferred Stock, or otherwise) when, as, and if declared by the Board of Directors, at the rate and on the date or dates as set forth in the Prospectus Supplement. With respect to each series of Preferred Stock, the dividends on each share of such series with respect to which dividends are cumulative shall be cumulative from the date of issue of such share unless some other date is set forth in the Prospectus Supplement relating to any such series. Accruals of dividends shall not bear interest. Rights Upon Liquidation. The Preferred Stock shall be preferred over the Common Stock as to assets so that the holders of each series of Preferred Stock shall be entitled to be paid, upon the voluntary or involuntary liquidation, dissolution, or winding up of the Company, and before any distribution is made to the holders of Common Stock, the amount set forth in the Prospectus Supplement relating to any such series, but in such case the holders of such series of Preferred Stock shall not be entitled to any other or further payment. If upon any such liquidation, dissolution, or winding up of the Company its net assets shall be insufficient to permit the payment in full of the respective amounts to which the holders of all outstanding Preferred Stock are entitled, the entire remaining net assets of the Company shall be distributed among the holders of each series of Preferred Stock in amounts proportionate to the full amounts to which the holders of each such series are respectively so entitled. Redemption and Conversion. All shares of any series of Preferred Stock shall be redeemable to the extent set forth in the Prospectus Supplement relating to any such series. All shares of any series of Preferred Stock shall be convertible into shares of Common Stock or into shares of any other series of Preferred Stock to the extent set forth in the Prospectus Supplement relating to any such series. Voting Rights. All shares of any series of Preferred Stock shall have the voting rights set forth in the prospectus supplement relating to any such series. 5% Cumulative Convertible Preferred Stock. In June 1993, the Company issued 1,725,000 shares of 5% Cumulative Convertible Preferred Stock, $.01 par value per share (the "5% Preferred"). Each share of 5% Preferred has a liquidation preference of $50.00 per share, plus accrued and unpaid dividends thereon. Cash dividends on the 5% Preferred are cumulative from the date of original issue at an annual rate of $2.50 per share and are payable quarterly in arrears. Shares of 5% Preferred are convertible at any time commencing 90 days after the date of original issue at the option of the holder into shares of Common Stock of the Company at a conversion price of $26.50 per share of Common Stock, which is equivalent to a conversion rate of approximately 1.8868 shares of Common Stock for each share of 5% Preferred, subject to adjustment in certain circumstances. The shares of 5% Preferred are not redeemable prior to June 15, 1996. On and after such date and from time to time until June 14, 2000, the 5% Preferred will be redeemable, in whole or in part, at the option of the Company, for such number of shares of Common Stock as are issuable at the conversion price for each share of 5% Preferred. The Company may exercise this option only if, for 20 trading days within any period of 30 consecutive trading days, including the last trading day of such 30 trading-day period, the closing price of the Company's Common Stock on the New York Stock Exchange exceeds $34.45, subject to adjustment in certain circumstances. On and after June 15, 2000, the 5% Preferred will be redeemable for cash at a redemption price equivalent to $50 per share, plus accrued and unpaid dividends. Shares of 5% Preferred are not be entitled to the benefit of any sinking fund. Preferred Stock Purchase Rights. 750,000 shares of Series A Junior Participating Preferred Stock, $.01 par value ("Junior Preferred Stock"), are reserved for issuance pursuant to the Rights Agreement. Pursuant to the Rights Agreement, one right (a "Right") to purchase 1/100th of a share of Junior Preferred Stock (structured so as to be substantially the equivalent of Common Stock) is attached to each issued and outstanding share of Common Stock. The Rights are not exercisable and are attached to, and may not trade separately from, the Common Stock unless certain change of control events occur. Common Stock The holders of the Company's Common Stock are entitled to one vote per share on all matters voted on by the stockholders, including elections of directors, and, except as otherwise required by law or provided in any resolution adopted by the Board of Directors of the Company with respect to any series of Preferred Stock, the holders of such shares will exclusively possess all voting power. Subject to any preferential rights of any outstanding series of Preferred Stock, the holders of Common Stock are entitled to such dividends as may be declared from time to time by the Board of Directors from funds available therefor, and upon liquidation are entitled to receive pro rata all assets of the Company available for distribution to such holders. No holder of Common Stock has any preemptive right to subscribe to any securities of the Company of any kind or class. The Company's Common Stock is listed on the New York Stock Exchange and prices are reported by the New York Stock Exchange Composite Tape under the symbol DRM. The Transfer Agent and Registrar of the Company's Common Stock is KeyCorp Shareholder Services, Inc., Cleveland, Ohio. Certain Provisions of the Certificate and By-laws The Certificate and By-laws of the Company contain certain provisions which may have the effect of delaying, deferring, or preventing a change of control of the Company. The Certificate provides that the Board shall be divided into three classes, with directors serving three-year terms, and limits the ability of stockholders to change the number of directors. Special meetings of the Company's stockholders may only be called by the Board of Directors or the Chairman of the Board, and any action required or permitted to be taken by the stockholders of the Company must be effected at an annual or special meeting of stockholders of the Company and may not be effected by any consent in writing of such stockholders. In addition, the Board has generally the authority, without further action by stockholders, to fix the relative powers, preferences, and rights of the unissued shares of preferred stock of the Company. Provisions which could discourage an unsolicited tender offer or takeover proposal, such as extraordinary voting, dividend, redemption, or conversion rights, could be included in such preferred stock. Under the Certificate, holders of the Company's Common Stock are entitled to cumulative voting rights in certain limited circumstances in which the Company becomes aware that a shareholder of the Company (other than the Company or a subsidiary of the Company) has become the beneficial owner, directly or indirectly, of 30% or more of the outstanding capital stock of the Company entitled to vote generally in the election of Company directors. Holders of the Company's Common Stock are not otherwise entitled to cumulative voting rights. Under cumulative voting, a shareholder may multiply the number of shares owned by the number of directors to be elected, and cast that total number of votes in any proportion among as many nominees as the shareholder desires. The By-laws of the Company contain certain requirements concerning advance notice of (i) nominations by stockholders of persons for election to the Board, and (ii) other matters introduced by stockholders at annual meetings. DESCRIPTION OF SECURITIES WARRANTS The Company may issue Securities Warrants for the purchase of Debt Securities, Preferred Stock or Common Stock. Securities Warrants may be issued independently or together with Debt Securities, Preferred Stock or Common Stock offered by any Prospectus Supplement and may be attached to or separate from any such Offered Securities. Each series of Securities Warrants will be issued under a separate warrant agreement (a "Securities Warrant Agreement") to be entered into between the Company and a bank or trust company, as warrant agent (the "Securities Warrant Agent"), all as set forth in the Prospectus Supplement relating to the particular issue of Securities Warrants. The Securities Warrant Agent will act solely as an agent of the Company in connection with the Securities Warrants and will not assume any obligation or relationship of agency or trust for or with any holders of Securities Warrants or beneficial owners of Securities Warrants. The following summary of certain provisions of the Securities Warrants does not purport to be complete and is subject to, and is qualified in its entirety by reference to, all provisions of the Securities Warrant Agreements. Reference is made to the Prospectus Supplement relating to the particular issue of Securities Warrants offered thereby for the terms of such Securities Warrants, including, where applicable: (i) the designation, aggregate principal amount, currencies, denominations, and terms of the series of Debt Securities purchasable upon exercise of Debt Warrants and the price at which such Debt Securities may be purchased upon such exercise; (ii) the designation, number of shares, stated value, and terms (including, without limitation, liquidation, dividend, conversion, and voting rights) of the series of Preferred Stock purchasable upon exercise of Preferred Stock Warrants and the price at which such number of shares of Preferred Stock of such series may be purchased upon such exercise; (iii) the number of shares of Common Stock purchasable upon the exercise of Common Stock Warrants and the price at which such number of shares of Common Stock may be purchased upon such exercise; (iv) the date on which the right to exercise such Securities Warrants shall commence and the date on which such right shall expire (the "Expiration Date"); (v) United States Federal income tax consequences applicable to such Securities Warrants; and (vi) any other terms of such Securities Warrants. Preferred Stock Warrants and Common Stock Warrants will be offered and exercisable for U.S. dollars only. Securities Warrants will be issued in registered form only. The exercise price for Securities Warrants will be subject to adjustment in accordance with the applicable Prospectus Supplement. Each Securities Warrant will entitle the holder thereof to purchase such principal amount of Debt Securities or such number of shares of Preferred Stock or Common Stock at such exercise price as shall in each case be set forth in, or calculable from, the Prospectus Supplement relating to the Securities Warrants, which exercise price may be subject to adjustment upon the occurrence of certain events as set forth in such Prospectus Supplement. After the close of business on the Expiration Date (or such later date to which such Expiration Date may be extended by the Company), unexercised Securities Warrants will become void. The place or places where, and the manner in which, Securities Warrants may be exercised shall be specified in the Prospectus Supplement relating to such Securities Warrants. Prior to the exercise of any Securities Warrants to purchase Debt Securities, Preferred Stock, or Common Stock, holders of such Securities Warrants will not have any of the rights of holders of the Debt Securities, Preferred Stock, or Common Stock, as the case may be, purchasable upon such exercise, including the right to receive payments of principal of, premium, if any, or interest, if any, on the Debt Securities purchasable upon such exercise or to enforce covenants in the applicable Indenture, or to receive payments of dividends, if any, on the Preferred Stock or Common Stock purchasable upon such exercise, or to exercise any applicable right to vote. PLAN OF DISTRIBUTION The Company may sell the Offered Securities to which this Prospectus relates to or for resale to the public through one or more underwriters, acting alone or in underwriting syndicates led by one or more managing underwriters, and also may sell such Offered Securities directly to other purchasers or dealers or through agents. The distribution of Offered Securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed from time to time, at market prices prevailing at the time of sale, at prices related to such prevailing market prices, or at negotiated prices. Each Prospectus Supplement will describe the method of distribution of the Offered Securities. In connection with the sale of Offered Securities, such underwriters, dealers, and agents may receive compensation from the Company, or from purchasers of Offered Securities for whom they may act as agents, in the form of discounts, concessions, or commissions. Underwriters, dealers, and agents that participate in the distribution of Offered Securities and, in certain cases, direct purchasers from the Company, may be deemed to be "underwriters" and any discounts or commissions received by them and any profit on the resale of Offered Securities by them may be deemed to be underwriting discounts and commissions under the Securities Act. Any such underwriters, dealers, or agents will be identified and any such compensation will be described in the applicable Prospectus Supplement. Under agreements which may be entered into by the Company, underwriters, dealers, and agents who participate in the distribution of Offered Securities may be entitled to indemnification by the Company against certain liabilities, including liabilities under the Securities Act. The place and time of delivery for Offered Debt Securities in respect of which this Prospectus is delivered will be set forth in the applicable Prospectus Supplement. LEGAL MATTERS The validity of the Offered Securities will be passed upon for the Company by Timothy J. Fretthold, Esq., Senior Vice President/Group Executive and General Counsel of the Company, and for the underwriters, dealers, or other agents by Simpson Thacher & Bartlett (a partnership which includes professional corporations), New York, New York. As of May 1, 1995, Mr. Fretthold beneficially owned 50,210 shares of Common Stock of the Company including 23,180 shares which he had the right to acquire within 60 days through the exercise of employee stock options. EXPERTS The financial statements incorporated in this Prospectus by reference to the 1994 Form 10-K have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. With respect to the unaudited consolidated financial information of the Company for the three-month periods ended March 31, 1995 and 1994, incorporated by reference in this Prospectus, Price Waterhouse LLP reported that they have applied limited procedures in accordance with professional standards for a review of such information. However, their separate report dated May 11, 1995, incorporated by reference herein, states that they do not express an opinion on that unaudited consolidated financial information. Price Waterhouse LLP has not carried out any significant or additional audit tests beyond those which would have been necessary if their report had not been included. Accordingly, the degree of reliance on their report on such information should be restricted in light of the limited nature of the review procedures applied. Price Waterhouse LLP is not subject to the liability provisions of Section 11 of the Securities Act of 1933 (the "Act") for their report on the unaudited consolidated financial information because that report is not a "report" or a "part" of the Registration Statement prepared or certified by Price Waterhouse LLP within the meaning of Sections 7 and 11 of the Act. PART II INFORMATION NOT REQUIRED IN PROSPECTUS Item 14. Other Expenses of Issuance and Distribution Estimated expenses in connection with the issuance and distribution of the securities to be registered, other than underwriters' or agents' discounts and commissions, are as follows: Registration Fee $ 51,724 Blue Sky Fees and Expenses 10,000 Printing Expenses 15,000 Legal Fees and Expenses 20,000 Accounting Fees and Expenses 10,000 Indenture Trustee Fees and Expenses 1,500 Miscellaneous 1,776 Total $110,000 Item 15. Indemnification of Directors and Officers Set forth below is a description of Article Tenth ("Article Tenth") of the Certificate. This description is intended as a summary only and is qualified in its entirety by reference to the Certificate. Elimination of Liability in Certain Circumstances. Article Tenth protects the Company's directors against monetary damages for breaches of their fiduciary duty of care, except as set forth below. Under the Delaware General Corporation Law (the "Delaware Law"), absent Article Tenth, directors could generally be held liable for gross negligence for decisions made in the performance of their duty of care but not for simple negligence. Article Tenth eliminates director liability for negligence in the performance of their duties, including gross negligence. Directors remain liable for breaches of their duty of loyalty to the Company and its stockholders, as well as acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law and transactions from which a director derives improper personal benefit. Article Tenth does not limit a stockholder's ability to pursue injunctive or other equitable relief and does not apply to claims arising under violations of the federal securities laws. Indemnification and Insurance. Under Delaware Law, directors and officers as well as other employees and 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 such as 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 corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. Article Tenth provides, in general, that each person who was or is made a party to, or is involved in, any action, suit, or proceeding by reason of the fact that he or she is or was a director, officer, employee, or agent of the Company (or was serving at the request of the Company as a director, officer, employee, or agent for another entity) will be indemnified and held harmless by the Company, to the full extent authorized by Delaware Law, as currently in effect (or, to the extent indemnification is broadened, as it may be amended) against all expense, liability, or loss (including attorneys' fees, judgments, fines, ERISA excise taxes, or penalties and amounts to be paid in settlement) reasonably incurred by such person in connection therewith. Article Tenth provides that persons indemnified thereunder may bring suit against the Company to recover unpaid amounts claimed thereunder, and that if such suit is successful, the expenses of bringing such a suit will be reimbursed by the Company. Article Tenth further provides that while it is a defense to such a suit that the person claiming indemnification has not met the applicable standards of conduct making indemnification permissible under Delaware Law, the burden of proving the defense will be on the Company and neither the failure of the Company's Board to have made a determination that indemnification is proper, nor an actual determination that the claimant has not met the applicable standard of conduct will be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct. Article Tenth provides that the Company may maintain insurance, at its expense, to protect itself and any of its directors, officers, employees, or agents 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 Delaware Law. Finally, Article Tenth provides that the rights to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred therein will not be exclusive of any other right which any person may have or acquire under any statute, provision of the Certificate or the Company's By-Laws, agreement, or vote of stockholders or disinterested directors, or otherwise. The Company and each of the Directors have entered into indemnification agreements providing for indemnification that is broader than that provided by Article Tenth. Each of the Directors of the Company is entitled to indemnification pursuant to the indemnification agreements whether the Director's acts, failures to act, neglect, or breach of duty giving rise to the right to indemnity thereunder occurred prior 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 and does not apply to acts, failures to act, neglect, or breaches of duty of any Director of the Company while acting in such Director's prior position, if any, with Maxus Energy Corporation, the Company's former parent company. Item 16. Exhibits Exhibit No. Description 1.1 -- Agency Agreement, dated January 25, 1990 (filed as Exhibit 1.1 to the Registration Statement, File No. 33-32024 ("Registration Statement No. 33-32024") and incorporated herein by reference). 1.2 -- Amendment No. 1 to the Agency Agreement (filed as Exhibit 1.2 to the Registration Statement, File No. 33-43502 and incorporated herein by reference). 1.3 -- Amendment No. 2 to the Agency Agreement (filed as Exhibit 1.3 to the Registration Statement, File No. 33-58744 and incorporated herein by reference). 1.4 -- Form of Amendment No. 3 to the Agency Agreement (filed as Exhibit 1.4 to the Registration Statement, File No. 33-67556 (Registration Statement No.33-67556) and incorporated herein by reference). 1.5 -- Underwriting Agreement Standard Provisions. 4.1 -- Indenture, dated as of December 15, 1989, between the Company and The First National Bank of Chicago, as trustee (filed as Exhibit 4.1 to Registration Statement No. 33-32024 and incorporated herein by reference). 4.2 -- Forms of Medium-Term Notes (filed as Exhibit 4.2 to Registration Statement No. 33-67556 and incorporated herein by reference). 4.3 -- Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Form 10 Registration No. 1-9409 (the "Form 10") and incorporated herein by reference). 4.4 -- By-Laws of the Company (filed as Exhibit 3.2 to the Form 10 and incorporated herein by reference). 4.5 -- Form of Common Stock Certificate (filed as Exhibit 4.3 to the Form 10 and incorporated herein by reference). 4.6 -- Form of Right Certificate (filed as Exhibit 1 to the Company's Form 8-A Registration Statement, dated March 6, 1990 (the "Form 8-A"), and incorporated herein by reference). 4.7 -- Rights Agreement, dated as of March 6, 1990, between the Company and Ameritrust Company National Association (filed as Exhibit 2 to the Form 8-A and incorporated herein by reference). 4.8 -- Form of Certificate of Designations of Series A Junior Participating Preferred Stock (filed as Exhibit 3 to the Form 8-A and incorporated herein by reference). **4.9 -- Form of Warrant Agreement for Debt Securities. **4.10 -- Form of Warrant Certificate for Debt Securities. **4.11 -- Form of Warrant Agreement for Preferred Stock. **4.12 -- Form of Warrant Certificate for Preferred Stock. **4.13 -- Form of Warrant Agreement for Common Stock. **4.14 -- Form of Warrant Certificate for Common Stock. *5.1 -- Opinion of Timothy J. Fretthold, Esq., Senior Vice President/Group Executive and General Counsel regarding legality of Debt Securities registered under Registration Statement No. 33-67556. 5.2 -- Opinion of Timothy J. Fretthold, Esq., Senior Vice-President/Group Executive and General Counsel regarding legality of Offered Securities registered under this Registration Statement. 12.1 -- Computation of ratio of earnings to fixed charges and earnings to fixed charges and preferred stock dividends for the three month periods ended March 31, 1995 and 1994 and for each of the five years ended December 31, 1994. 15.1 -- Independent Accountants Awareness Letter 23.1 -- Consent of Price Waterhouse LLP. 23.2 -- Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5.1 and Exhibit 5.2). *24.1 -- Powers of Attorney of directors and officers of the Company relating to Registration Statement No. 33-67556. *24.2 -- Power of Attorney of the Company relating to Registration Statement No. 33-67556. *24.3 -- Certified copies of resolutions of the Board of Directors of the Company relating to Debt Securities registered under Registration Statement No. 33-67556. 24.4 -- Power of Attorney of directors and officers of the Company relating to this Registration Statement. 24.5 -- Power of Attorney of the Company relating to this Registration Statement. 24.6 -- Certified copy of resolutions of the Board of Directors of the Company relating to Offered Securities registered under this Registration Statement. 25.1 -- Statement as to the eligibility of the Trustee under the Indenture. 27.1 -- Financial Data Schedule. * Previously filed as part of Registration Statement No. 33-67556. ** To be filed as an Exhibit to Form 8-K in reference to the specific offering of Securities Warrants to which it relates. Item 17. Undertakings The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement and/or Registration Statement No. 33-67556: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, unless the information required to be included in such post-effective amendment is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and incorporated herein by reference; (ii) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement and/or Registration Statement No. 33-67556 (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement and/or Registration Statement No. 33-67556, unless the information required to be included in such post-effective amendment is contained in periodic reports filed by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and incorporated herein by reference; (iii) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement and/or Registration Statement No. 33-67556 or any material change to such information in this Registration Statement and/or Registration Statement No. 33-67556; (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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; (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; and (4) That for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in this Registration Statement and/or Registration Statement No. 33-67556 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. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers, and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer, or controlling person of the Registrant in the successful defense of any action, suit, or proceeding) is asserted by such director, officer, or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement and Post-Effective Amendment No. 1 to Registration Statement No. 33-67556 to be signed on its behalf by the undersigned, thereunto duly authorized pursuant to Powers of Attorney executed on behalf of the Registrant and previously filed with the Securities and Exchange Commission or contemporaneously filed herewith, in the City of San Antonio, State of Texas on May 19, 1995. DIAMOND SHAMROCK, INC. By /S/ TODD WALKER Todd Walker Attorney-in-Fact Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed on May 19, 1995 by the following persons in the capacities indicated below. Signature Title R. R. HEMMINGHAUS* Chairman, President, and R. R. Hemminghaus Chief Executive Officer (Principal Executive Officer) and Director ROBERT C. BECKER* Vice President and Treasurer Robert C. Becker (Principal Financial Officer) GARY E. JOHNSON* Vice President and Controller Gary E. Johnson (Principal Accounting Officer) B. CHARLES AMES* Director B. Charles Ames E. GLENN BIGGS* Director E. Glenn Biggs W. E. BRADFORD* Director W. E. Bradford LAURO F. CAVAZOS* Director Lauro F. Cavazos W. H. CLARK* Director W. H. Clark WILLIAM L. FISHER* Director William L. Fisher KATHERINE D. ORTEGA* Director Katherine D. Ortega BOB MARBUT* Director Bob Marbut * The undersigned, by signing his name hereto, does sign and execute this Registration Statement pursuant to the Powers of Attorney executed by the above- named officers and directors and previously filed with the Securities and Exchange Commission or contemporaneously filed herewith. /S/ Todd Walker Todd Walker Attorney-in-Fact INDEX TO EXHIBITS Sequentially Exhibit Numbered Number Exhibit Pages 1.1 -- Agency Agreement, dated January 25, 1990 (filed as Exhibit 1.1 to the Registration Statement, File No. 33-32024 ("Registration Statement No. 33-32024") and incorporated herein by reference). 1.2 -- Amendment No. 1 to the Agency Agreement (filed as Exhibit 1.2 to the Registration Statement, File No. 33-43502 and incorporated herein by reference). 1.3 -- Amendment No. 2 to the Agency Agreement (filed as Exhibit 1.3 to the Registration Statement, File No. 33-58744 and incorporated herein by reference). 1.4 -- Form of Amendment No. 3 to the Agency Agreement (filed as Exhibit 1.4 to the Registration Statement, File No. 33-67556 (Registration Statement No.33-67556) and incorporated herein by reference). 1.5 -- Underwriting Agreement Standard Provisions. 4.1 -- Indenture, dated as of December 15, 1989, between the Company and The First National Bank of Chicago, as trustee (filed as Exhibit 4.1 to Registration Statement No. 33-32024 and incorporated herein by reference). 4.2 -- Forms of Medium-Term Notes (filed as Exhibit 4.2 to Registration Statement No. 33-67556 and incorporated herein by reference). 4.3 -- Certificate of Incorporation of the Company (filed as Exhibit 3.1 to the Company's Form 10 Registration No. 1-9409 (the "Form 10") and incorporated herein by reference). 4.4 -- By-Laws of the Company (filed as Exhibit 3.2 to the Form 10 and incorporated herein by reference). 4.5 -- Form of Common Stock Certificate (filed as Exhibit 4.3 to the Form 10 and incorporated herein by reference). 4.6 -- Form of Right Certificate (filed as Exhibit 1 to the Company's Form 8-A Registration Statement, dated March 6, 1990 (the "Form 8-A"), and incorporated herein by reference). 4.7 -- Rights Agreement, dated as of March 6, 1990, between the Company and Ameritrust Company National Association (filed as Exhibit 2 to the Form 8-A and incorporated herein by reference). 4.8 -- Form of Certificate of Designations of Series A Junior Participating Preferred Stock (filed as Exhibit 3 to the Form 8-A and incorporated herein by reference). **4.9 -- Form of Warrant Agreement for Debt Securities. **4.10 -- Form of Warrant Certificate for Debt Securities. **4.11 -- Form of Warrant Agreement for Preferred Stock. **4.12 -- Form of Warrant Certificate for Preferred Stock. **4.13 -- Form of Warrant Agreement for Common Stock. **4.14 -- Form of Warrant Certificate for Common Stock. *5.1 -- Opinion of Timothy J. Fretthold, Esq., Senior Vice President/Group Executive and General Counsel regarding legality of Debt Securities registered under Registration Statement No. 33-67556. 5.2 -- Opinion of Timothy J. Fretthold, Esq., Senior Vice-President/Group Executive and General Counsel regarding legality of Offered Securities registered under this Registration Statement. 12.1 -- Computation of ratio of earnings to fixed charges and earnings to fixed charges and preferred stock dividends for the three month periods ended March 31, 1995 and 1994 and for each of the five years ended December 31, 1994. 15.1 -- Independent Accountants Awareness Letter 23.1 -- Consent of Price Waterhouse LLP. 23.2 -- Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5.1 and Exhibit 5.2). *24.1 -- Powers of Attorney of directors and officers of the Company relating to Registration Statement No. 33-67556. *24.2 -- Power of Attorney of the Company relating to Registration Statement No. 33-67556. *24.3 -- Certified copies of resolutions of the Board of Directors of the Company relating to Debt Securities registered under Registration Statement No. 33-67556. 24.4 -- Power of Attorney of directors and officers of the Company relating to this Registration Statement. 24.5 -- Power of Attorney of the Company relating to this Registration Statement. 24.6 -- Certified copy of resolutions of the Board of Directors of the Company relating to Offered Securities registered under this Registration Statement. 25.1 -- Statement as to the eligibility of the Trustee under the Indenture. 27.1 -- Financial Data Schedule. * Previously filed as part of Registration Statement No. 33-67556. ** To be filed as an Exhibit to Form 8-K in reference to the specific offering of Securities Warrants to which it relates. W2929.TW EX-1.5 2 DIAMOND SHAMROCK, INC. Securities Underwriting Agreement Standard Provisions May, 1995 From time to time Diamond Shamrock, Inc. (the "Company") proposes to enter into one or more Pricing Agreements (each a "Pricing Agreement") substantially in the form of Annex I(A), I(B) or I(C) hereto, with such additions and deletions as the parties thereto may determine, and, subject to the terms and conditions stated herein and therein, to issue and sell to the firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the "Underwriters" with respect to such Pricing Agreement) certain of its debt securities ("Debt Securities"), preferred stock and common stock ("Equity Securities") and warrants ("Warrants") to purchase Debt Securities ("Warrant Debt Securities") or the Equity Securities ("Warrant Equity Securities", collectively with the Warrant Debt Securities, the "Warrant Securities" and collectively with the Debt Securities and preferred and Equity Securities, the "Securities") specified in Schedule II to such Pricing Agreement (such Securities so specified being referred to herein as the "Designated Securities"). 1. The Designated Securities shall be sold pursuant to a Pricing Agreement. Particular sales of Designated Securities may be made from time to time to the Underwriters of such Securities, for whom the firms designated as representatives of the Underwriters of such Securities in the Pricing Agreement relating thereto will act as representatives (each a "Representative"). The term "Representatives" also refers to a single firm acting as sole representative of the Underwriters and to Underwriters who act without any firm being designated as their representative. This Underwriting Agreement shall not be construed as an obligation of the Company to sell any of the Securities or as an obligation of any of the Underwriters to purchase the Securities. The obligation of the Company to issue and sell any of the Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be evidenced by the Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify, as applicable, the aggregate amount of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters and the amount of such Designated Securities to be purchased by each Underwriter and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The Debt Securities and Warrant Debt Securities shall be sold pursuant to the indenture (the "Indenture") identified in Schedule II to the applicable Pricing Agreement. Preferred stock, including preferred stock purchasable upon exercise of Warrants, if any, will be issued in one or more series, which series may vary as to voting rights, dividends, optional and mandatory redemption provisions, liquidation preference and conversion provisions and other terms, with all such terms for any particular series or issue of the preferred stock being determined at the time of issue. The Warrants are to be issued pursuant to the provisions of a Warrant Agreement (the "Warrant Agreement") specified in the applicable Pricing Agreement between the Company and the Warrant Agent named in the Pricing Agreement (the "Warrant Agent"). A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced by an exchange of telegraphic communications or any other rapid transmission device designated to produce a written record of communications transmitted. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint. 2. The Company represents and warrants to, and agrees with, each of the Underwriters that: (a) A registration statement in respect of the Securities and more particularly described in the applicable Pricing Agreement has been filed with the Securities and Exchange Commission (the "Commission") in the form heretofore delivered or to be delivered to the Representative, and such registration statement in such form has been declared effective by the Commission and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement being hereinafter called a "Preliminary Prospectus"); if any post-effective amendment to such registration statement has been filed with the Commission prior to the date of the applicable Pricing Agreement, the most recent such amendment has been declared effective by the Commission; "Effective Date" means the date as of which such registration statement, or the most recent post-effective amendment thereto, if any, was declared effective by the Commission; such registration statement, as amended at the Effective Date, including all documents incorporated by reference therein and, if the date of the Pricing Agreement is on or before the fifth business day after the Effective Date, including all information deemed to be a part thereof as of the Effective Date pursuant to paragraph (b) of Rule 430A under the Securities Act of 1933, as amended (the "Act"), is hereinafter referred to as the "Registration Statement," and the form of prospectus relating to the Designated Securities, as first filed pursuant to paragraph (1) or (4) of Rule 424(b) ("Rule 424(b)") under the Act or, if the date of the Pricing Agreement is after the fifth business day after the Effective Date, pursuant to Rule 424(b)(2) or (5), as such form of prospectus may be supplemented as contemplated by Section 1 to reflect the terms of the Designated Securities and the terms of offering thereof, including all documents incorporated by reference therein, is hereinafter referred to as the "Prospectus;" any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to the applicable form under the Act, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "Exchange Act") and incorporated therein by reference; (b) The documents incorporated by reference in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; any further documents so filed and incorporated by reference in the Prospectus or in any amendments or supplements thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall apply only to documents so filed and incorporated by reference during the period that a prospectus relating to the Designated Securities is required to be delivered in connection with sales of such Designated Securities (such period being hereinafter sometimes referred to as the "prospectus delivery period"); and provided further, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of an Underwriter through the Representative expressly for use in the Prospectus or to any statements in or omissions from the statement of eligibility and qualifications on Form T-1 of the Trustee under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"); (c) The Registration Statement and the Prospectus conform, and any amendments or supplements thereto will conform, in all material respects to the requirements of the Act and the Trust Indenture Act, and the rules and regulations of the Commission thereunder, and do not and will not, as of the applicable effective date as to the Registration Statement and any amendment thereto and as of the applicable filing date as to the Prospectus and any supplement thereto, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided, however, that this representation and warranty shall apply only to amendments or supplements filed or made during the prospectus delivery period; and provided further, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of an Underwriter through the Representative expressly for use in the Prospectus or to any statements in or omissions from the statement of eligibility and qualifications on Form T-1 of the Trustee, if any, under the Trust Indenture Act; (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as disclosed in the Prospectus, (i) there has not been any material adverse change in the business, financial condition or results of operations of the Company and its subsidiaries taken as a whole, and (ii) there has been no material transaction entered into by the Company or any of its significant subsidiaries (as defined in Rule 405 under the Act) other than those in the ordinary course of business; (e) Each of the Company and its significant subsidiaries has been duly incorporated, is validly existing in good standing under the laws of its jurisdiction of incorporation, is duly qualified to do business and is in good standing as a foreign corporation in each jurisdiction in which its ownership of properties or the conduct of its business requires such qualification (except where the failure to so qualify or be in good standing would not have a material adverse effect upon the Company and its subsidiaries taken as a whole), and has the necessary corporate power to conduct the businesses in which it is engaged, as described in the Prospectus; (f) The Company has an authorized capitalization as set forth in the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non- assessable; (g) (i) The Indenture, if any, described in the applicable Pricing Agreement has been duly authorized, executed and delivered by the Company and is duly qualified under the Trust Indenture Act and constitutes the valid and binding obligation of the Company, enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles); the Debt Securities, if any, described in the applicable Pricing Agreement have been validly authorized for sale pursuant to the applicable Pricing Agreement and, when such Debt Securities or any Warrant Debt Securities have been duly executed, authenticated, delivered and paid for as provided in the applicable Pricing Agreement and the applicable Indenture or, in the case of Warrant Debt Securities, the applicable Indenture, such Debt Securities or Warrant Debt Securities will constitute valid and binding obligations of the Company entitled to the benefits of the applicable Indenture; (ii) if the Designated Securities are convertible, the shares of capital stock issuable upon conversion are duly and validly authorized, have been duly reserved for issuance upon conversion of the Designated Securities, and when issued upon the conversion of the Designated Securities, will be duly and validly issued, fully paid and non-assessable; (iii) the Equity Securities and/or Warrant Equity Securities, if any, described in the applicable Pricing Agreement have been duly and validly authorized, when issued and paid for as provided in the applicable Warrant Agreement, will be fully paid and non- assessable and, in the case of Warrant Equity Securities, will be duly reserved for issuance upon exercise of the applicable Warrant, (iv) the Warrants and the Warrant Agreement, if any, described in the Pricing Agreement have been duly executed and delivered and the Warrants, when duly executed, countersigned and delivered, will constitute the valid and legally binding obligations of the Company, enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditor's rights generally, and subject to general equitable principles); (v) no further approval or authority of the stockholders or the Board of Directors of the Company will be required for the issuance and sale of the Designated Securities as contemplated herein or, if applicable, the issuance of the shares of capital stock upon conversion of the Designated Securities or exercise of the Warrants; and (vi) the Designated Securities, the Indenture and the Warrant Agreement, if any, conform in all material respects to the descriptions thereof contained in the Prospectus. (h) Neither the Company nor any of its significant subsidiaries is in default under any agreement, indenture or instrument, the effect of which violation or default would be material to the Company and its subsidiaries taken as a whole; the execution, delivery and performance of the applicable Pricing Agreement and the Indenture, if any, and compliance by the Company with the provisions of the Designated Securities and the Indenture, if any, have been duly authorized by all necessary corporate action and will not conflict with, result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its significant subsidiaries pursuant to the terms of, or constitute a default under, any agreement, indenture or instrument, or result in a violation of any order, rule or regulation of any court or governmental agency having jurisdiction over the Company, any of its significant subsidiaries or their respective properties; and except as required by the Act, the Trust Indenture Act, the Exchange Act and applicable state securities laws, no consent, authorization or order of, or filing or registration with, any court or governmental agency is required for the execution, delivery and performance of the transactions contemplated by the applicable Pricing Agreement or the Indenture, if any. (i) Other than as described in the Prospectus, there is no material litigation or governmental proceeding pending or, to the actual knowledge of the executive officers of the Company, threatened against the Company or any of its subsidiaries which if adversely decided could reasonably be expected to result in any material adverse change in the business, financial condition or results of operations of the Company and its subsidiaries taken as a whole. 3. Upon the execution of the applicable Pricing Agreement and the authorization by the Representative of the release of the Designated Securities, the several Underwriters propose to offer such Securities for sale upon the terms and conditions set forth in the Prospectus. 4. The Designated Securities to be purchased by each Underwriter, in definitive form to the extent practicable, and in such authorized denominations and registered in such names as the Representative may request upon at least forty-eight hours' prior notice to the Company, shall be delivered by or on behalf of the Company to the Representative for the accounts of the Underwriters, against payment by each such Underwriter or on its behalf of the purchase price therefor by certified or official bank check or checks payable to the order of the Company in the funds specified in the applicable Pricing Agreement, all at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representative and the Company may agree upon in writing, such time and date being herein called the "Time of Delivery" for such Designated Securities. Each Pricing Agreement will also specify the firm or firms which will be Underwriters, the names of any Representatives, the amount to be purchased by each Underwriter, the purchase price to be paid by the Underwriters and certain terms of the Designated Securities. It is understood that the Underwriters propose to offer the Designated Securities for sale as set forth in the Prospectus. The Debt Securities delivered to the Underwriters on the Closing Date will be in such form, in such denominations and registered in such names as the Underwriters may request. 5. The Company agrees with each of the Underwriters of the Designated Securities: (a) To prepare the Prospectus as amended and supplemented in relation to the applicable Designated Securities in a form approved by the Representatives (which approval shall not be unreasonably withheld) and to file such Prospectus with the Commission (i) pursuant to Rule 424(b)(1) (or, if applicable and if consented to by the Representatives, pursuant to Rule 424(b)(4)) not later than the Commission's close of business on the earlier of (A) the second business day following the date of the applicable Pricing Agreement or (B) the fifth business day after the Effective Date, or (ii) if the date of the Applicable Pricing Agreement is after the fifth business day after the Effective Date, pursuant to Rule 424(b)(2) (or, if applicable and if consented to by the Representatives, pursuant to Rule 424(b)(5)) not later than the second business day following the date of the applicable Pricing Agreement; the Company will advise the Representatives promptly of any such filing pursuant to Rule 424(b); to advise the Representative promptly of any amendment or supplement to the Registration Statement or Prospectus after the Time of Delivery and during the prospectus delivery period and furnish the Representative with copies thereof; to file promptly all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and during the prospectus delivery period; and during such same period to advise the Representative, promptly after it receives notice thereof, of the time when any amendment to the Registration Statement has been filed or become effective or any supplement to the Prospectus or any amended Prospectus has been filed, or mailed for filing, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Designated Securities, of the suspension of the qualification of the Designated Securities for offering or sale in any jurisdiction, of the initiation of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement or Prospectus; and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, to promptly use reasonable efforts, to obtain its withdrawal; (b) Promptly from time to time to take such action as the Representative may reasonably request to qualify the Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representative may reasonably request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to complete the distribution of the Designated Securities, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction; (c) To furnish the Underwriters with copies of the Prospectus in such quantities as the Representative may from time to time reasonably request, and, if the delivery of a prospectus is required at any time prior to the expiration of nine months after the time of issue of such Prospectus in connection with the offering or sale of the Designated Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act, the Exchange Act or the Trust Indenture Act, to notify the Representative and upon the request of the Representative to file such document and to prepare and furnish without charge to each Underwriter and to any dealer in securities as many copies as the Representative may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance; and in case any Underwriter is required to deliver a prospectus in connection with sales of the Designated Securities at any time nine months or more after the time of issue of the Prospectus, upon the request of the Representative but at the expense of such Underwriter, to prepare and deliver to such Underwriter as many copies as the Representative may request of an amended or supplemented Prospectus complying with Section 10(a)(3) of the Act; (d) To make generally available to its security holders as soon as practicable an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder (including, at the option of the Company, Rule 158); and (e) Without the prior consent of the Representative, the Company will not, (A) in the event of an offering of Equity Securities, convertible Debt Securities or Warrant Equity Securities, offer, sell, contract to sell or otherwise dispose of any shares of common stock or any securities convertible into or exchangeable or exercisable for or any rights to purchase or acquire common stock for that period specified in the Pricing Agreement, other than (i) shares of common stock or options to purchase common stock granted under the Company's existing employee benefit or compensation plans or (ii) the issuance of common stock upon conversion of existing convertible securities or upon exercise of existing rights, options or warrants and, (B) for a period beginning from the date of the applicable Pricing Agreement and continuing to and including the Time of Delivery, in the event of an offering of Debt Securities or Warrants to purchase Warrant Debt Securities, will not offer, sell, contract to sell or otherwise dispose of any debt securities of the Company which mature more than one year after such Time of Delivery and which are substantially similar to the Designated Securities. 6. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company's counsel and accountants in connection with the registration of the Securities under the Act and all other expenses in connection with the preparation, printing and filing of the Registration Statement, any Preliminary Prospectus and the Prospectus and amendments and supplements (except as expressly provided in the last clause of Section 5(c) hereof) thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing any Agreement among Underwriters, the Pricing Agreement, any Indenture, any Blue Sky and Legal Investment Memoranda and any other documents in connection with the offering, purchase, sale and delivery of the Designated Securities; (iii) the costs of filing with the National Association of Securities Dealers, Inc., if necessary, (iv) all expenses in connection with the qualification of the Designated Securities for offering and sale under state securities laws as provided in Section 5(b) hereof, including the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky and legal investment surveys; (v) any fees charged by securities rating services for rating the Designated Securities; (vi) the cost of preparing, issuing, and printing the Designated Securities; (vii) the fees and expenses of any Transfer agent, of any Trustee and any agent of any Trustee and the fees and disbursements of counsel for any Trustee in connection with any Indenture and the Designated Securities; and (viii) all other costs and expenses incident to the performance of its obligations hereunder which are not otherwise specifically provided for in this Section. It is understood, however, that, except as provided in this Section, Section 5(c), Section 8 and Section 11 hereof or as may be provided in the applicable Pricing Agreement, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, transfer taxes on resale of any of the Securities by them, and any advertising expenses connected with any offers they may make. 7. The obligations of the Underwriters of the Designated Securities specified in the applicable Pricing Agreement shall be subject, in the discretion of the Representative, to the accuracy of the representations and warranties and other statements of the Company herein, at and as of the Time of Delivery, the performance by the Company of all of its obligations hereunder theretofore to be performed, and the following additional conditions: (a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) of this Agreement; and no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or threatened in writing by the Commission; (b) Simpson Thacher & Bartlett, counsel for the Underwriters, shall have furnished to the Representative such opinion or opinions, dated the Time of Delivery, with respect to the incorporation of the Company, the validity of the Designated Securities, the Registration Statement, the Prospectus as amended or supplemented and other related matters as the Representative may reasonably request, and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters; (c) Timothy J. Fretthold, Esq., Senior Vice President/Group Executive and General Counsel of the Company, shall have furnished to the Representative his written opinion, dated the Time of Delivery, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing under the laws of its jurisdiction of incorporation, is duly qualified to do business and in good standing as a foreign corporation in all jurisdictions in the United States in which its ownership of properties or the conduct of its business requires such qualification (except where the failure so to qualify or be in good standing would not have a material adverse effect upon the Company and its subsidiaries taken as a whole), and has all necessary corporate power and authority, and to such counsel's knowledge has all material governmental franchises, licenses and permits, necessary to conduct the businesses in which it is engaged as described in the Prospectus; (ii) The Registration Statement is effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made within the time period required by Rule 424(b); to the knowledge of such counsel after due inquiry, no stop order suspending its effectiveness has been issued and no proceeding for that purpose is pending or has been threatened in writing by the Commission; (iii) Based upon such counsel's participation in the preparation of the Registration Statement and Prospectus and his discussions with officers, directors and employees of the Company, the independent accountants who examined the financial statements of the Company and its consolidated subsidiaries included in the Registration Statement and Prospectus and the Representative concerning the information contained in the Registration Statement and Prospectus and the proposed responses to various items in Form S-3, such counsel is of the opinion that the Registration Statement (except for the operating statistics, financial and statistical statements, financial schedules, and other financial data included therein, as to which he need express no opinion), as of its effective date, and the Prospectus (with the foregoing exceptions), as of its date, complied as to form in all material respects with the Act, the rules and regulations of the Commission thereunder, the Trust Indenture Act and the rules and regulations of the Commission thereunder; (iv) Although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus, based upon the participation and discussion described in paragraph (iii) above, no facts have come to his attention that cause him to believe that the Registration Statement (except for the operating statistics, financial statements, financial schedules and other financial and statistical data included therein, as to which he need express no opinion), as of its effective date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (with the foregoing exceptions), at the effective date and as amended and supplemented to the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (v) Such counsel does not know of any litigation or any governmental proceeding pending or threatened against the Company or any of its subsidiaries relating to the applicable Pricing Agreement or which is required to be disclosed in the Prospectus which is not disclosed as so required; (vi) Such counsel does not know of any contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Act or by the rules and regulations of the Commission thereunder, or which are required to be filed by the Exchange Act or the rules and regulations of the Commission thereunder as exhibits to any document incorporated by reference in the Prospectus, which have not been filed as exhibits to the Registration Statement or to such document or incorporated therein by reference as permitted by the rules and regulations of the Commission under the Act or the rules and regulations of the Commission under the Exchange Act; (vii) To the knowledge of such counsel, neither the Company nor any of its significant subsidiaries is in default under any material agreement, indenture or instrument; (viii) The Indenture, if any, described in the applicable Pricing Agreement has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act; the Warrant Agreement, if any, described in the applicable Pricing Agreement has been duly authorized, executed and delivered by the Company; and each, as applicable, is a valid and binding obligation of the Company enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles); (ix) If any Designated Securities to be issued are convertible into or are exercisable for capital stock of the Company, the shares of such capital stock are duly and validly authorized, have been duly reserved for issuance upon conversion or exercise of such Designated Securities, and when issued upon the conversion or exercise of such Designated Securities, will be duly and validly issued, fully paid and non- assessable; (x) The Equity Securities, if any, described in the applicable Pricing Agreement have been duly and validly authorized by the Company and, when paid for in accordance with the applicable Pricing Agreement or, in the case of Warrant Equity Securities, the applicable Warrant Agreement and when certificates therefor have been duly countersigned, will be validly issued, fully paid, and non-assessable. (xi) The Debt Securities, if any, described in the applicable Pricing Agreement are in a form contemplated by the applicable Indenture and have been duly authorized by all necessary corporate action on the part of the Company and, assuming such Debt Securities have been duly authenticated as specified in the applicable Indenture and delivered against payment therefor in accordance with the applicable Pricing Agreement, such Debt Securities will be valid and binding obligations of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the applicable Indenture; (xii) The Warrants, if any, described in the applicable Pricing Agreement, are in a form contemplated by the applicable Warrant Agreement, have been duly authorized by all necessary corporate action on the part of the Company and assuming such Warrants have been duly countersigned by the Warrant Agent and delivered against payment therefor in accordance with the applicable Pricing Agreement, such Warrants will be valid and binding obligations of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the applicable Warrant Agreement; and the Warrants, if any, described in the applicable Pricing Agreement, may be exercised to purchase the securities for which they are exercisable in accordance with their terms and the terms of the applicable Warrant Agreement; (xiii) The Warrant Debt Securities, if any, described in the applicable Pricing Agreement, issuable upon exercise of the Warrants, are in a form contemplated by the applicable Indenture and by the applicable Warrant Agreement and have been duly authorized by all necessary corporate action on the part of the Company and, assuming such Warrant Debt Securities have been duly authenticated as specified in the applicable Indenture and delivered against payment therefor in accordance with the applicable Warrant Agreement, such Warrant Debt Securities will be valid and binding obligations of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the applicable Indenture; (xiv) The Debt Securities, the Indenture, if any, described in the applicable Pricing Agreement and the Warrant Agreement, if any, described in the applicable Pricing Agreement, conform in all material respects as to legal matters to the statements relating to them in the Registration Statement and the Prospectus; and (xv) The execution, delivery and performance of the applicable Pricing Agreement and compliance by the Company with the provisions of the Designated Securities, the Indenture, if any, and the Warrant Agreement, if any, will not conflict with, or result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of its significant subsidiaries pursuant to the terms of, or constitute a default under, any agreement, indenture or instrument known to such counsel, or result in a violation of any order, rule or regulation known to such counsel (also as in effect on the date of such opinion) of any court or governmental agency having jurisdiction over the Company, any of its significant subsidiaries or their respective properties; and no consent, authorization with, any court or governmental agency is required for the execution, delivery and performance by the Company of the applicable Pricing Agreement except such as may be required by the Act, the Trust Indenture Act, the Exchange Act or state securities laws; (d) Jones, Day, Reavis & Pogue, counsel to the Company, shall have furnished to the Representative such firm's written opinion, dated the Time of Delivery, to the effect that: (i) The Company is validly existing as a corporation in good standing under the laws of the State of Delaware; (ii) The Indenture, if any, described in the applicable Pricing Agreement has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act; the Warrant Agreement, if any, described in the applicable Pricing Agreement has been duly authorized, executed and delivered by the Company; and each, as applicable, is a valid and binding obligation of the Company enforceable in accordance with its terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles); (iii) The Debt Securities, if any, described in the applicable Pricing Agreement, are in a form contemplated by the applicable Indenture and have been duly authorized by all necessary corporate action on the part of the Company and, assuming such Debt Securities have been duly authenticated as specified in the applicable Indenture and delivered against payment therefor in accordance with the applicable Pricing Agreement, such Securities will be valid and binding obligations of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the applicable Indenture; (iv) If any Designated Securities to be issued are convertible into or are exercisable for capital stock of the Company, the shares of such capital stock are duly and validly authorized, have been duly reserved (based upon the initial conversion price) for issuance upon conversion or exercise of such Designated Securities, and when certificates therefor have been duly countersigned and when issued upon the conversion or exercise of such Designated Securities, will be duly and validly issued, fully paid and non-assessable; (v) The Equity Securities, if any, described in the applicable Pricing Agreement have been duly and validly authorized by the Company and, when paid for in accordance with the applicable Pricing Agreement or, in the case of Warrant Equity Securities, the applicable Warrant Agreement and when certificates therefor have been duly countersigned, will be validly issued and are fully paid and non-assessable; (vi) The Warrants, if any, described in the applicable Pricing Agreement, are in a form contemplated by the applicable Warrant Agreement, have been duly authorized by all necessary corporate action on the part of the Company and assuming such Warrants are duly countersigned by the Warrant Agent and delivered against payment therefor in accordance with the applicable Pricing Agreement, such Warrants will be valid and binding obligations of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the applicable Warrant Agreement; and the Warrants, if any, described in the applicable Pricing Agreement, may be exercised to purchase the securities for which they are exercisable in accordance with their terms and the terms of the applicable Warrant Agreement; (vii) The Warrant Debt Securities, if any, described in the applicable Pricing Agreement, issuable upon exercise of the Warrants, are in a form contemplated by the applicable Indenture and by the applicable Warrant Agreement and have been duly authorized by all necessary corporate action on the part of the Company and, assuming such Warrant Debt Securities have been duly authenticated as specified in the applicable Indenture and delivered against payment therefor in accordance with the applicable Warrant Agreement, such Warrant Debt Securities will be valid and binding obligations of the Company enforceable in accordance with their terms (except as enforcement thereof may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles), and entitled to the benefits of the applicable Indenture; (viii) The Designated Securities, the Indenture, if any, and the Warrant Agreement, if any, conform in all material respect as to legal matters to the statements relating to them in the Registration Statement and the Prospectus; (ix) The Company has the corporate power and authority necessary to execute and deliver the applicable Pricing Agreement and to perform its obligations thereunder (including the sale and delivery of the Designated Securities under the applicable Pricing Agreement); and the applicable Pricing Agreement has been duly authorized, executed and delivered by the Company; (x) Based upon such counsel's participation in the preparation of the Registration Statement and Prospectus and such counsel's discussions with officers and employees of the Company and the Representative concerning the information contained in the Registration Statement and Prospectus and the proposed responses to various items in Form S-3, such counsel is of the opinion that the Registration Statement (except for the operating statistics, financial statements, financial schedules, and other financial and statistical data included therein, as to which such counsel need express no opinion), as of its effective date, and the Prospectus (with the foregoing exceptions), as of its date, complied as to form in all material respects with the Act, the rules and regulations of the Commission thereunder, and, if applicable, the Trust Indenture Act and the rules and regulations of the Commission thereunder; and (xi) Although such counsel has not independently verified and is not passing upon, and does not assume any responsibility for, the accuracy, completeness or fairness of the information contained in the Registration Statement and Prospectus, based upon the participation and discussions described in paragraph (x) above, no facts have come to such counsel's attention that cause such counsel to believe that the Registration Statement (except for the operating statistics, financial statements, financial schedules and other financial and statistical data included therein, as to which such counsel need express no opinion), as of its effective date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading, or that the Prospectus (with the foregoing exceptions), at the effective date and as amended and supplemented to the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; (e) The Trustee, if any, shall have furnished to the Representative a certificate, dated the Time of Delivery, as to its due authorization, execution and delivery of the Indenture and its due authentication of the Designated Securities; (f) At the Time of Delivery, the independent accountants who have certified the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement shall have furnished to the Representative a letter, dated the Time of Delivery, of the type described in the American Institute of Certified Public Accountant's Statement on Auditing Standards No. 72 and as to such other matters as the Representative may reasonably request and in form and substance reasonably satisfactory to the Representative; (g) Subsequent to the date of the applicable Pricing Agreement there shall not have occurred any of the following: (i) a suspension in trading in securities generally on the New York Stock Exchange or the American Stock Exchange or the over-the-counter market, or the establishment of minimum prices on either of such exchanges or such market, or (ii) a general banking moratorium declared by federal, Texas or New York State authorities, or (iii) any outbreak or escalation of hostilities in which the United States is or becomes engaged which would likely result in the declaration of a national emergency, or (iv) any downgrading in the rating accorded the Company's debt securities by any "nationally recognized statistical rating organization," as that term is defined by the Commission for purposes of Rule 436(g) under the Act or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); or (v) any material adverse change in the existing economic, political or financial conditions in the United States, including any effect of international conditions on the financial markets in the United States that, in the reasonable judgment of the Representative, makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Designated Securities on the terms and in the manner contemplated in the Prospectus; and (h) The Company shall have furnished or caused to be furnished to the Representative at the Time of Delivery a certificate or certificates of officers of the Company as to the accuracy of the representations and warranties of the Company herein at and as of the Time of Delivery, as to the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery, and as to the matters set forth in subsection (a) of this Section. 8. (a) The Company shall indemnify and hold harmless each Underwriter and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Act from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof, to which such Underwriter or controlling person may become subject, under the Act, the Exchange Act or other federal or state statutory law or regulation, at common law or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus or any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, or arises out of, or is based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and shall reimburse each Underwriter and controlling person for any legal and other expenses reasonably incurred by such Underwriter or controlling person in investigating or defending or preparing to defend against any such loss, claim, damage, liability or action; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement or omission or alleged omission made in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus or any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, in reliance upon and in conformity with written information furnished to the Company by or on behalf of any Underwriter through the Representative specifically for inclusion therein. The foregoing indemnity agreement is in addition to any liability which the Company may otherwise have to any Underwriter or controlling person of any Underwriter. (b) Each Underwriter shall indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and any person who controls the Company within the meaning of Section 15 of the Act from and against any loss, claim, damage or liability, joint or several, and any action in respect thereof, to which the Company or any such director, officer or controlling person may become subject, under the Act, the Exchange Act or federal or state statutory law or regulation, at common law or otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, any preliminary prospectus supplement, the Registration Statement, the Prospectus, or any other prospectus relating to the Designated Securities, or any amendment or supplement thereto, or arises out of, or is based upon, the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, but in each case only to the extent that the untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Underwriter through the Representative specifically for inclusion therein, and shall reimburse the Company or any such director, officer or controlling person for any legal and other expenses reasonably incurred by such indemnified party in investigating or defending or preparing to defend against any such loss, claim, damage, liability or action. The foregoing indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the Company or any of its directors, officers or controlling persons. (c) Promptly after receipt by an indemnified party under this Section of notice of any claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under this Section, notify the indemnifying party in writing of the claim or the commencement of that action; provided, however, that the failure to notify the indemnifying party shall not relieve it from any liability which it may have to an indemnified party otherwise than under this Section except to the extent that the indemnifying party is actually prejudiced by such failure. If any such claim or action shall be brought against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified indemnifying party, to assume the defense thereof with counsel reasonably satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified party of its election to assume the defense of such claim or action, the indemnifying party shall not be liable to the indemnified party under this Section for any legal or other expenses subsequently incurred by the indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that (i) the Underwriters shall have the right to employ counsel to represent the Underwriters who may be subject to liability arising out of any claim in respect of which indemnity may be sought by the Underwriters against the Company under this Section if, in the reasonable judgment of the Representative, it is advisable for the Underwriters to be represented by separate counsel, and in that event the fees and expenses of such counsel shall be paid by the Company and (ii) the Company shall have the right to employ counsel to represent the Company, each of its directors and officers and each of its controlling persons who may be subject to liability arising out of any claim in respect to which indemnity may be sought by the Company or such other persons under this Section if, in the reasonable judgment of the Company, it is advisable for the Company, its directors and officers, and controlling persons to be represented by separate counsel and, in that event, the fees and expenses of such separate counsel shall be paid by the Underwriters. The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel to which it is entitled under this Section, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement. 9. (a) If any Underwriter shall default in its obligations to purchase the Designated Securities which it has agreed to purchase under the Pricing Agreement, the Representative may in its discretion arrange for any Underwriter or Underwriters or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representative does not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representative to purchase such Designated Securities on such terms. In the event that, within the respective prescribed periods, the Representative notifies the Company that it has so arranged for the purchase of such Designated Securities, or the Company notifies the Representative that it has so arranged for the purchase of such Designated Securities, the Representative or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus, or in any other documents or arrangements, and the Company agrees to file promptly any amendments to the Registration Statement or the Prospectus which in the opinion of the Representative may thereby be made necessary. The term "Underwriter" as used in this Agreement shall include any person substituted under this Section with like effect as if such person had originally been a party to the Agreement with respect to such Designated Securities. (b) If, after giving effect to any arrangement for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-tenth of the aggregate principal amount of all the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase hereunder and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of such Designated Securities which such Underwriter agreed to purchase hereunder) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default. (c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representative and the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-tenth of the aggregate principal amount of Designated Securities, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase Designated Securities of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 6 hereof and the indemnity agreements in Section 8 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default. 10. The respective indemnities, agreements, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the Company, and shall survive delivery of and payment for the Designated Securities. Anything herein to the contrary notwithstanding, the indemnity agreement of the Company in subsection (a) of Section 8 hereof, the representations and warranties in subsections (b) and (c) of Section 2 hereof and any representation or warranty as to the accuracy of the Registration Statement or the Prospectus contained in any certificate furnished by the Company pursuant to Section 7 hereof, insofar as they may constitute a basis for indemnification for liabilities (other than payment by the Company of expenses incurred or paid in the successful defense of any action, suit or proceeding) arising under the Act, shall not extend to the extent of any interest therein of a controlling person or partner of an Underwriter who is a director, officer or controlling person of the Company when the Registration Statement has become effective (or when any amendment thereto made by the Company becomes effective) or who, with his consent, is named in the Registration Statement as about to become a director of the Company, except in each case to the extent that an interest of such character shall have been determined by a court of appropriate jurisdiction as not against public policy as expressed in the Act. Unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, the Company will, if a claim for such indemnification is asserted, submit to a court of appropriate jurisdiction the question whether such interest is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. 11. If the applicable Pricing Agreement shall be terminated pursuant to clause (i), (ii), (iii) or (v) of subsection 7(g) hereof or pursuant to Section 9 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities except as provided in Section 6 and Section 8 hereof; but if for any other reason the Designated Securities are not delivered by or on behalf of the Company as provided herein by reason of the Company's breach of any representation, warranty or covenant herein or in the applicable Pricing Agreement, the Company will reimburse the Underwriters through the Representative for all out-of-pocket expenses approved in writing by the Representative, including fees and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of such Designated Securities, but the Company shall then be under no further liability to any Underwriter with respect to such Designated Securities except as provided in Section 6 and Section 8 hereof. 12. In all dealings hereunder, the Representative shall act on behalf of each of the Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by the Representative. All statements, requests, notices and agreements hereunder shall be in writing or by telegram if promptly confirmed in writing, and if to the Underwriters shall be sufficient in all respects if delivered or sent by registered mail to the address of the Representative as set forth in the applicable Pricing Agreement; and if to the Company shall be sufficient in all respects if delivered or sent by registered mail to the address of the Company set forth in the Registration Statement, Attention: Treasurer; provided, however, that any notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by registered mail to such Underwriter at its address set forth in its Underwriters' Questionnaire, or telex constituting such Questionnaire, which addresses have been supplied to the Company by the Representative. 13. This Agreement and the Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Section 8 and Section 10 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase. 14. Time shall be of the essence in connection with the Pricing Agreement. 15. This Agreement and the Pricing Agreement shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed therein. 16. This Agreement and the Pricing Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed to be an original, but all such respective counterparts shall together constitute one and the same instrument. ANNEX I(A) Form of Pricing Agreement (Debt Securities) [INSERT NAME], As Representatives of the several Underwriters named in Schedule I hereto, [Insert Address] , 199_ Dear Sirs: Diamond Shamrock, Inc. (the "Company") proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions filed as an exhibit to the Company's registration statement on Form S-3 (No. 33- ) (the "Underwriting Agreement"), to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, provided that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal amount of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination, upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, DIAMOND SHAMROCK, INC. By:__________________________ Accepted as of the date hereof: [Insert Name] By:___________________________ On behalf of each of the Underwriters SCHEDULE I Principal Amount of Designated Securities to be Purchased Underwriter [Names of Underwriters] . . . . . . . . . . . . . . $ __________ Total . . . . . . . . . . . . . . . . . . . . . . . $__________ SCHEDULE II Title of Designated Securities: [ %] [Floating Rate] [Zero Coupon] [Notes] [Debentures] due Aggregate principal amount: $ Price to Public: % of the principal amount of the Designated Securities, plus accrued interest from to [and accrued amortization, if any, from to ] Purchase Price by Underwriters: % of the principal amount of the Designated Securities, plus accrued interest from to [and accrued amortization, if any, from to ] Specified funds for payment of purchase price: [New York] Clearing House funds Indenture: Indenture, dated as of , between the Company and , as Trustee Maturity: Interest Rate: [ %] [Zero Coupon] [See Floating Rate Provisions] Interest Payment Dates: [months and dates] Warrant Provisions: [See Schedule II to Annex I(C)] Redemption Provisions: [No provisions for redemption] [The Designated Securities may be redeemed, otherwise than through the sinking fund, in whole or in part at the option of the Company, in the amount of $ or an integral multiple thereof, [on or after , at the following redemption price (expressed in percentages of principal amount).] If [redeemed on or before , %, and if] redeemed during the 12-month period beginning Redemption Year Price and thereafter at 100% of their principal amount, together in each case with accrued interest to the redemption date.] [on any interest payment date falling or after , , at the election of the Company, at a redemption price equal to the principal amount thereof, plus accrued interest to the date of redemption.] [Other possible redemption provisions, such as mandatory redemption upon occurrence of certain events or redemption for changes in tax law] [Restriction on refunding] Sinking Fund Provisions: [No sinking fund provisions] [The Designated Securities are entitled to the benefit of a sinking fund to retire $ principal amount of Designated Securities on in each of the years through at 100% of their principal amount plus accrued interest] [, together with [cumulative] [noncumulative] redemptions at the option of the Company to retire an additional $ principal amount of Designated Securities in the years through at 100% of their principal amount plus accrued interest]. [If Securities are extendable debt Securities, insert -- Extendable Provisions: Securities are repayable on , [insert date and years], at the option of the holder, at their principal amount with accrued interest. Initial annual interest rate will be %, and thereafter annual interest rate will be adjusted on , and to a rate not less than % of the effective annual interest rate on U.S. Treasury obligations with -year maturities as of the [insert date 15 days prior to maturity date] prior to such [insert maturity date].] [If Securities are Floating Rate debt Securities, insert -- Floating Rate Provisions: Initial annual interest rate will be % through [and thereafter will be adjusted [monthly] [on each , , and ] [to an annual rate of % above the average rate for - -year [month] [securities] [certificates of deposit] by and [insert names of banks].] [and the annual interest rate [thereafter] [from through ] will be the interest yield equivalent of the weekly average per annum market discount rate for - month Treasury bills plus % of Interest Differential (the excess, if any, of (i) then current weekly average per annum secondary market yield for -month certificates of deposit over (ii) then current interest yield equivalent of the weekly average per annum market discount rate for -month Treasury bills); [from and thereafter the rate will be the then current interest yield equivalent plus % of Interest Differential].] Time of Delivery: Method of Delivery: Closing Location: Name and addresses of Representatives: Designated Representatives: Address for Notices, etc.: [Other Terms]: ANNEX I(B) Form of Pricing Agreement (Equity Securities) [INSERT NAME], As Representatives of the several Underwriters named in Schedule I hereto, [Insert Address] , 199_ Dear Sirs: Diamond Shamrock, Inc. (the "Company") proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions filed as an exhibit to the Company's registration statement on Form S-3 (No. 33- ) (the "Underwriting Agreement"), to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, provided that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the principal number of shares of Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination, upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, DIAMOND SHAMROCK, INC. By:__________________________ Accepted as of the date hereof: [Insert Name] By:___________________________ On behalf of each of the Underwriters SCHEDULE I Number of Underwriter Shares [Names of Underwriters] . . . . . . . . . . . . . . . . . __________ Total . . . . . . . . . . . . . . . . . . . . . . . . . . __________ SCHEDULE II Title of Designated Securities: [Common Stock] [Preferred Stock, Series ______] Number of Shares to be issued: [ shares] [For Preferred Stock: Voting Rights: Preferred Stock Dividends: [cash dividends of $ to $ per share payable quarterly in arrears on _____ __, ______ __, _______ __ and _______ __.] Optional Redemption: Mandatory Redemption/Sinking Fund: Liquidation Preference: [$ per share plus ]. Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market System] [American Stock Exchange] [Period Designated Pursuant to Section 5(e) of the Underwriting Agreement: ______ days.] Conversion Provisions: Warrant Provisions: [See Schedule II to Annex I(C)] [Other Terms] Price to Public: $ per share Underwriting Discounts and Commission: Proceeds to Company: Over-Allotment Option: Time of Delivery: A.M. on , 19 , at in New York [Clearing House (next day)] [Federal (same-day)] funds. Name of Transfer Agent and Registrar: [Name[s] and Address[es] of Representative[s]:]] [For Common Stock: Name of Exchange or Market: [New York Stock Exchange] [NASDAQ National Market System] [American Stock Exchange] [Period Designated Pursuant to Section 5(e) of the Underwriting Agreement: ______ days.] [Other Terms] Price to Public: $ per share Underwriting Discounts and Commission: Proceeds to Company: Over-Allotment Option: Time of Delivery: A.M. on , 19 , at in New York [Clearing House (next day)] [Federal (same-day)] funds. Name of Transfer Agent and Registrar:] Name and addresses of Representatives: Designated Representatives: Address for Notices, etc.: ANNEX I(C) Form of Pricing Agreement (Warrants) [INSERT NAME], As Representatives of the several Underwriters named in Schedule I hereto, [Insert Address] , 199_ Dear Sirs: Diamond Shamrock, Inc. (the "Company") proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement Standard Provisions filed as an exhibit to the Company's registration statement on Form S-3 (No. 33- ) (the "Underwriting Agreement"), to issue and sell to the Underwriters named in Schedule I hereto (the "Underwriters") the Securities specified in Schedule II hereto (the "Designated Securities"). Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the date of this Pricing Agreement, provided that each representation and warranty with respect to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of this Pricing Agreement in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Representatives herein and in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of the Representatives and on behalf of each of the Underwriters of the Designated Securities pursuant to Section 12 of the Underwriting Agreement and the address of the Representatives referred to in such Section 12 are set forth at the end of Schedule II hereto. An amendment to the Registration Statement, or a supplement to the Prospectus, as the case may be, relating to the Designated Securities, in the form heretofore delivered to you is now proposed to be filed with the Commission. Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, the number of Warrants (the "Warrants") to purchase [principal amount of the Company's Debt Securities] [shares of the Company's Common Stock] [shares of the Company's Preferred Stock] set forth opposite the name of such Underwriter in Schedule I hereto. If the foregoing is in accordance with your understanding, please sign and return to us two counterparts hereof, and upon acceptance hereof by you, on behalf of each of the Underwriters, this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination, upon request, but without warranty on the part of the Representatives as to the authority of the signers thereof. Very truly yours, DIAMOND SHAMROCK, INC. By:__________________________ Accepted as of the date hereof: [Insert Name] By:___________________________ On behalf of each of the Underwriters SCHEDULE I Number of Underwriter Warrants [Names of Underwriters] . . . . . . . . . . . . . . . . __________ Total . . . . . . . . . . . . . . . . . . . . . . . . . __________ SCHEDULE II Title of Warrant Securities: [Common Stock] [Preferred Stock, Series ______] Number of Warrants to be issued: [ Warrants] Warrant Agent: Exercise Price: $ per Warrant Expiration Date: Currency: Currency of Warrant Securities: Maturity of Warrant Securities Principal Amount [Number] of Warrant Securities: Interest Rate of Warrant Securities: Interest Rate Payment Dates of Warrant Securities: Listing Requirement: Additional Terms of Warrants and Warrant Securities Period Designated Pursuant to Section 5(e) of the Underwriting Agreement: ______ days. Underwriting Discounts and Commission: Proceeds to Company: Over-Allotment Option: Time of Delivery: A.M. on , 19 , at in New York [Clearing House (next day)] [Federal (same-day)] funds. Name of Transfer Agent and Registrar:] Name and addresses of Representatives: Designated Representatives: Address for Notices, etc.: W2940.asc EX-5.2 3 May 19, 1995 Diamond Shamrock, Inc. 9830 Colonnade San Antonio, Texas 78230 Re: Registration Statement on Form S-3 of Diamond Shamrock, Inc. (Registration No. ______________) Gentlemen: I am Senior Vice President/Group Executive and General Counsel of Diamond Shamrock, Inc. (the "Company"). This letter is delivered in connection with the registration, issuance, and sale of up to an aggregate amount of $150,000,000 of Debt Securities, Debt Warrants, Common Stock, Common Stock Warrants, Preferred Stock, and Preferred Stock Warrants (collectively the "Offered Securities") pursuant to the resolutions authorizing the issuance and sale of the Offered Securities, and such other acts as are necessarily incident to the registration, issuance and sale of the Offered Securities (the "Authorizing Resolutions") adopted by the Company's Board of Directors at a meeting of the Company's Board of Directors held on May 2, 1995. The Debt Securities will be issued pursuant to the terms of an indenture (the "Indenture") dated as of December 15, 1989, between the Company and The First National Bank of Chicago acting as trustee (the "Trustee"). I have examined such documents, records, and matters of law as I have deemed necessary for the purposes of this opinion, and based thereon I am of the opinion that the Offered Securities have been duly authorized and will be valid and binding obligations of the Company (except as enforcement thereof may be limited by bankrupcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and subject to general equitable principles) when the Offered Securities are issued, authenticated or countersigned, and delivered by the Company for valid consideration in accordance with the Authorizing Resolutions and (i) in the case of the Debt Securities, the terms of the Indenture, (ii) in the case of Preferred Stock, the applicable Designation of Preferences and the Company's Certificate of Incorporation (the "Certificate"), (iii) in the case of Common Stock, the Certificate and (iv) in the case of Debt Warrants, Common Stock Warrants, and Preferred Stock Warrants, the applicable Warrant Agreement. This opinion is based on the Company's Certificate and Bylaws and applicable law as of the date hereof. No assurance can be provided as to the effect on this opinion of any amendment or other change to the Company's Certificate or Bylaws or applicable law after the date hereof. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement on Form S-3 filed by the Company to effect registration under the Securities Act of 1933, as amended, of the Offered Securities and to the reference to me under the caption "Legal Matters" in the Prospectus comprising part of such Registration Statement. Very truly yours, /S/ TIMOTHY J. FRETTHOLD Timothy J. Fretthold TJF:es TJF\TW:es W2906.TW EX-12.1 4 EXHIBIT 12.1 DIAMOND SHAMROCK, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS (dollars in millions) Three Months Ended Mar. 31 Year Ended December 31, 1995 1994 1994 1993 1992 1991 1990 Income from continuing operations, before income taxes $ 9.1 $20.7 $125.8 $ 57.5 $ 44.0 $ 57.7 $118.3 Fixed Charges: Interest Expense 11.4 10.5 43.3 40.6 40.5 37.7 35.5 Capitalized interest 1.1 0.9 2.3 6.1 6.1 2.5 2.9 One-third of rental expense(1) 2.5 2.3 9.7 7.3 7.6 8.2 6.9 Dividend requirement on preferred stock(2) 1.5 1.6 6.0 3.4 - - 3.7 Total Fixed Charges 16.5 15.3 61.3 57.4 54.2 48.4 49.0 Less capitalized interest 1.1 0.9 2.3 6.1 6.1 2.5 2.9 Less dividend requirement on preferred stock(2) 1.5 1.6 6.0 3.4 - - 3.7 Adjustment to income 13.9 12.8 53.0 47.9 48.1 45.9 42.4 Income, as adjusted $23.0 $33.5 $178.8 $105.4 $ 92.1 $103.6 $160.7 Ratio of Earnings to Fixed Charges and Preferred Stock Dividends 1.4 2.2 2.9 1.8 1.7 2.1 3.3 (1) The amount deemed by the Company to represent the interest portion of such expense. (2) The preferred stock dividend requirement has been increased to an amount representing the pre-tax earnings which would be required to cover such dividend requirements. DIAMOND SHAMROCK, INC. COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES (dollars in millions) Three Months Ended Mar. 31, Year Ended December 31, 1995 1994 1994 1993 1992 1991 1990 Income from continuing operations, before income taxes $ 9.1 $ 20.7 $125.8 $ 57.5 $ 44.0 $ 57.7 $118.3 Fixed Charges: Interest Expense 11.4 10.5 43.3 40.6 40.5 37.7 35.5 Capitalized interest 1.1 0.9 2.3 6.1 6.1 2.5 2.9 One-third of rental expense(1) 2.5 2.3 9.7 7.3 7.6 8.2 6.9 Total Fixed Charges 15.0 13.7 55.3 54.0 54.2 48.4 45.3 Less capitalized interest 1.1 0.9 2.3 6.1 6.1 2.5 2.9 Adjustment to income 13.9 12.8 53.0 47.9 48.1 45.9 42.4 Income, as adjusted $ 23.0 $ 33.5 $178.8 $105.4 $ 92.1 $103.6 $160.7 Ratio of Earnings to Fixed Charges 1.5 2.4 3.2 2.0 1.7 2.1 3.5 (1) The amount deemed by the Company to represent the interest portion of such expense. W2905.TW EX-15.1 5 EXHIBIT 15.1 INDEPENDENT ACCOUNTANTS' AWARENESS LETTER Securities and Exchange Commission 450 Fifth Street, N.W. Washington, D.C. 20549 Ladies and Gentlemen: We are aware that Diamond Shamrock, Inc. has included our report dated May 11, 1995 (issued pursuant to the provisions of Statement on Auditing Standards No. 71) in the Prospectus to be filed on or about May 18, 1995. We are also aware of our responsibilities under the Securities Act of 1933. Yours very truly, /S/ PRICE WATERHOUSE LLP Price Waterhouse LLP San Antonio, Texas May 18, 1995 EX-23.1 6 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated February 24, 1995, which is attached as Exhibit 13.3 to Diamond Shamrock, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1994. We also consent to the incorporation by reference of our report on the Financial Statement Schedules, which is included in Item 14(a)(2) of such Annual Report on Form 10-K. We also consent to the references to us under the heading "Experts" in such Prospectus. /S/ PRICE WATERHOUSE LLP PRICE WATERHOUSE LLP San Antonio, Texas May 18, 1995 W2336.TW EX-24.4 7 POWER OF ATTORNEY The undersigned directors and/or officers of Diamond Shamrock, Inc., hereby constitute and appoint Timothy J. Fretthold, Todd Walker, Robert A. Profusek, James E. O'Bannon, Edward H. Molter and Wendy Dann Adato, or any 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 Diamond Shamrock, Inc., 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 any of them, may deem necessary or advisable to enable Diamond Shamrock, Inc. 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-3, 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/ B. CHARLES AMES /S/ BOB MARBUT B. Charles Ames Bob Marbut /S/ E. GLENN BIGGS /S/ KATHERINE D. ORTEGA E. Glenn Biggs Katherine D. Ortega /S/ W. E. BRADFORD /S/ R. C. BECKER W. E. Bradford R. C. Becker /S/ LAURO F. CAVAZOS /S/ GARY E. JOHNSON Lauro F. Cavazos Gary E. Johnson /S/ W. H. CLARK /S/ R. R. HEMMINGHAUS W. H. Clark R. R. Hemminghaus /S/ WILLIAM L. FISHER William L. Fisher Dated: February 7, 1995 W2773.TW EX-24.5 8 POWER OF ATTORNEY Diamond Shamrock, Inc. hereby constitutes and appoints Timothy J. Fretthold, Todd Walker, Robert A. Profusek, James E. O'Bannon and Mark E. Betzen, or any 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 any of them, may deem necessary or advisable to enable Diamond Shamrock, Inc. 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-3, 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. DIAMOND SHAMROCK, INC. By: /S/ R. R. HEMMINGHAUS R. R. Hemminghaus Chairman, President, and Chief Executive Officer Dated: February 7, 1995 W2772.TW EX-24.6 9 DIAMOND SHAMROCK, INC. SECRETARY'S CERTIFICATE I, Jerry D. King, do hereby certify that I am the duly appointed and acting Secretary of Diamond Shamrock, Inc. (the "Corporation"), and do further hereby certify that attached hereto as Exhibit "A" is a true and correct copy of resolutions duly adopted by the Board of Directors of the Corporation on May 2, 1995, and such resolutions have not been amended, modified, or rescinded. WITNESS the seal of the Corporation and my signature on this 19th day of May, 1995. By: /s/ JERRY D. KING Jerry D. King, Secretary I. AUTHORIZATION OF SECURITIES RESOLVED that in addition to any securities previously authorized by the Board of Directors of the Corporation, the Corporation is hereby authorized to offer and sell from time to time its common stock with associated rights and its preferred stock ("Equity Securities") and its bonds, debentures, notes or similar instruments ("Debt Securities") (Equity Securities and Debt Securities being hereinafter collectively referred to as "Securities"), provided that the amount of additional Securities authorized hereby shall be limited in aggregate principal amount at maturity and/or market value at issuance to not more than $150,000,000; II. ISSUANCE OF DEBT SECURITIES FURTHER RESOLVED that the Chairman of the Board and any Vice President of the Corporation be, and each of them hereby is, authorized and empowered in his sole discretion, on behalf of the Corporation, to authorize the Corporation to offer and sell one or more issues of Debt Securities from time to time pursuant to public offerings, private placements or other transactions, and in connection with any such issuance to determine: (a) the type of Debt Security or Debt Securities and title or titles thereof; provided, however, that without further action by the Board or the Executive Committee thereof no Debt Securities shall be secured or convertible into any equity securities of the Corporation; (b) whether the Debt Securities are to be issued as registered securities or bearer securities or both and, if bearer securities are issued, whether coupons will be attached thereto; (c) the aggregate principal amount and denominations of the Debt Securities; (d) the maturity or maturities of the Debt Securities, which shall not be more than 30 years from the date of issuance; (e) the dates on which or periods during which the Debt Securities may be issued, and the dates on which the principal of and interest and premium, if any, on the Debt Securities are or may be payable; (f) the price to be received by the Corporation in any public or private offering of the Debt Securities (which may be at a discount from the principal amount of the Debt Securities at their maturity), the offering price and any discount received by, or commission or other remuneration paid to, any underwriters, placement or sales agents or others (collectively, "Sales Agents"); (g) the interest rate or rates, if any, to be established for the Debt Securities and the yield or yields to maturity to be established for the Debt Securities; (h) if the amount of any payments of principal of (and premium, if any) or interest on the Debt Securities may be determined with reference to an index, including without limitation an index based on a currency or currencies other than that in which the Debt Securities are payable, the manner in which such amounts shall be determined; (i) the sinking fund, if any, and related redemption prices; (j) the mandatory and optional redemption rights, if any, of the Corporation and of the holders of the Debt Securities and related redemption prices; (k) provisions, if any, for the defeasance of the Debt Securities; (l) the covenants, if any, of the Corporation relating to any of the Debt Securities; (m) any trustee, authenticating or paying agents, warrant agents, transfer agents or registrars for the Debt Securities (collectively, the "Fiduciaries"); and (n) such other terms, conditions and provisions as the officers of the Corporation or any of them shall deem appropriate; and that the officers of the Corporation be, and each of them hereby is, authorized, on behalf of the Corporation, to take any and all such actions and to do, or authorize to be done, all such things that any of them deems necessary or appropriate in connection with any such issuance of Debt Securities; FURTHER RESOLVED that the officers of the Corporation be, and each of them hereby is, authorized to execute and deliver, on behalf of the Corporation (and, if any such officer deems it appropriate, under its corporate seal attested by its Secretary or any Assistant Secretary), an indenture or indentures relating to any Debt Securities or the possible future sale thereof, and that each of the Authorized Officers is authorized to execute and deliver, in similar manner, such indentures supplemental thereto as he may approve (each such indenture, as amended by indentures supplemental thereto, and as executed and delivered on behalf of the Corporation, being hereinafter referred to as an "Indenture"); III. ISSUANCE OF EQUITY SECURITIES FURTHER RESOLVED that the executive committee of the Board of Directors (the "Executive Committee") be, and it hereby is, authorized and empowered in its discretion to determine the number of shares and the specific terms of Equity Securities authorized hereby, including without limitation, the par value, designations, rights and restrictions, including preferences, the amount of any liquidation preference, the dividend rate and payment dates, redemption price or prices and terms, and conversion price and terms, and to approve a form of stock certificate evidencing shares of the Equity Securities and a Certificate of Designations, if appropriate, for purposes of amending the Certificate of Incorporation of the Corporation (the "Certificate") and is further authorized to approve the final terms, prices and conditions of the issuance and sale of the shares of the Equity Securities; and FURTHER RESOLVED that when the Equity Securities are issued, the same shall be fully paid and nonassessable; FURTHER RESOLVED that KeyCorp Shareholder Services, Inc. ("KeyCorp") or any other bank or trust company approved by the Chairman of the Board or any Vice President of the Corporation be, and it hereby is, appointed the Transfer Agent and Registrar for the Equity Securities (the "Transfer Agent"); and that the Transfer Agent be, and it hereby is, authorized and directed to countersign and record certificates for the Equity Securities, on its transfer records, to countersign as Registrar and to deliver certificates as instructed by the officers of the Corporation; FURTHER RESOLVED that the Chairman of the Board or any Vice President of the Corporation be, and each of them hereby is, authorized and directed to execute and deliver, or behalf of the Corporation and under its corporate seal attested by the Secretary or an Assistant Secretary of the Corporation, certificates representing the Equity Securities, including but not limited to one or more global certificates, containing such restrictive legends as are appropriate, and to replace lost, stolen, mutilated or destroyed certificates and all certificates required for exchange, substitution or transfer, all as provided in the Certificate and the By-Laws of the Corporation; and FURTHER RESOLVED that the signatures of the Chairman of the Board, any Vice President, the Secretary or any Assistant Secretary on the Certificates representing the Equity Securities shall be the manual or facsimile signatures of the present or any further persons holding such offices, notwithstanding the fact that at the time such certificates are signed or delivered the officer so executing or delivering shall have ceased to be the Chairman of the Board, Vice President, Secretary or Assistant Secretary, as the case may be. IV. ADDITIONAL AGREEMENTS, DOCUMENTS, CERTIFICATES, INSTRUMENTS; INDEMNIFICATION FURTHER RESOLVED that the officers of the Corporation be, and each of them hereby is, authorized to execute and deliver, on behalf of the Corporation, such other agreements, documents, certificates and instruments as may be required by any Fiduciary in connection with an Indenture or by any Sales Agent in connection with any offering or sale of Securities or as any of such officers may deem appropriate in connection with any issuance of any of the Securities; and FURTHER RESOLVED that, to the extent provided in any agreement or instrument executed on behalf of the Corporation by any such officer, (1) any Fiduciary or Sales Agent be, and it hereby is, authorized to rely and act upon, and shall be fully protected in relying and acting upon, any instructions received by it and signed by any officer of the Corporation, and to rely and act upon, and shall be fully protected in relying and acting upon, any assignment, power of attorney, certificate, order, instruction, notice or other instrument or paper reasonably believed by it to be genuine and duly authorized and properly executed, (2) the Corporation may reimburse any such Fiduciary or Sales Agent for all expenses incurred by it in the performance of it duties, and (3) the Corporation may indemnify and hold harmless each Fiduciary or Sales Agent from and against any and all claims, suits, damages, losses, expenses (including attorneys' fees and expenses) and liabilities which may be incurred by it or to which it may be subjected by reason of, or in connection with, its appointment and duties; That the officers of the Corporation be, and each of them hereby is, authorized to execute and deliver, on behalf of the Corporation, a written order to the appropriate Fiduciary directing such Fiduciary when Securities have been properly executed by the Corporation to authenticate them in such amount or quantities as shall have been determined by an authorized officer (as defined in the appropriate Indenture) with respect to Debt Securities, or by the Executive Committee, with respect to Equity Securities, to deliver such Securities and thereafter to authenticate and deliver such other Securities as may be necessary upon registration and transfer of, in exchange for, or in lieu of, any outstanding Securities. V. REGISTRATION OF SECURITIES RESOLVED that if (in the opinion of counsel to the Corporation) required by applicable law, or otherwise determined to be appropriate by any of such officers, the officers of the Corporation be, and each of them hereby is, authorized to execute and file with the Securities and Exchange Commission (the "Commission"), on behalf of the Corporation, one or more Registration Statements and any amendments including post-effective amendments to any such Registration Statement with respect to any Securities under the Securities Act of 1933, as amended, with such changes therein, additions thereto and deletions therefrom as the officers, or any of them, shall approve, such approval to be conclusively evidenced by the execution thereof, or to take such other action, as such officers or counsel of the Corporation deem appropriate in connection with the offering or sale of any Securities, including without limitation the qualification of any Indenture under the Trust Indenture Act of 1939, as amended, provided, however, that the maximum aggregate value of Securities authorized to be registered pursuant to these resolutions shall be $150,000,000 less the portion of any existing effective registration statement of the Corporation which is amended by post-effective amendment such that Securities may be offered and sold pursuant to such existing effective registration statement and such post-effective amendment is hereby authorized if (in the opinion of counsel to the Corporation) appropriate and permissible under existing law; FURTHER RESOLVED that Timothy J. Fretthold, Todd Walker, Robert A. Profusek, James E. O'Bannon, Edward H. Molter, and Wendy Dann Adato be, and each of them hereby is, appointed as attorney-in-fact for the Corporation, with full power of substitution and resubstitution, for the purpose of executing and filing any such Registration Statement and amendments thereto, and any such post-effective amendments, and the officers of the Corporation be, and each of them hereby is, authorized, on behalf of the Corporation, to execute such documents as such officers deem to be appropriate to evidence such appointment; FURTHER RESOLVED that the proper officers of the Corporation be, and each of them hereby is, authorized, on behalf of the Corporation, to take any action which any such officer deems to be appropriate to register or qualify the offer and sale of the Securities under the securities or blue sky laws of any and all states or other jurisdictions of the United States, including without limitation the execution, acknowledgment, verification, delivery and filing of consents to, and appointments of agents for, service of process, applications, reports, resolutions, prospectuses and other documents as may be appropriate in connection therewith, and to take any further action which they deem to be appropriate to maintain any such registration or qualification for as long as such officers deem to be necessary or appropriate; and FURTHER RESOLVED that if in connection with any of the foregoing a prescribed form of resolution of the Board or any Committee thereof is required to be filed on behalf of the Corporation, such resolution be, and it hereby is, adopted, and that the Secretary or any Assistant Secretary of the Corporation be, and he hereby is, authorized and directed to certify the adoption of any such resolution as though it was adopted at this meeting, all such resolutions to be inserted in the minute book and appropriately marked by the Secretary of the Corporation. VI. LISTING OF SECURITIES RESOLVED that the officers of the Corporation be, and each of them hereby is, authorized, on behalf of the Corporation, to prepare, execute and file with the New York Stock Exchange, Inc. or such other exchange as such officers may deem appropriate, a listing of the Securities, and to take such further action as such officers deem to be necessary or appropriate to secure such listing or listings, including, without limitation, the negotiation and execution of any required listing application, listing fee agreement or listing agreement. FURTHER RESOLVED that, if a prescribed form of resolution of the Board of Directors is required to be filed in connection with such listing on behalf of the Corporation, such resolution be, and it hereby is, adopted, and that the Secretary or an Assistant Secretary of the Corporation be, and he hereby is, authorized and directed to certify the adoption of any such resolution as though it was adopted at this meeting, all such resolutions to be inserted in the minute book and appropriately marked by the Secretary of the Corporation. VII. GENERAL AUTHORITY RESOLVED that the officers of the Corporation be, and each of them hereby is, authorized to execute and deliver, on behalf of the Corporation, any and all other agreements, documents, filings, papers or instruments, to make any and all payments and to do or cause to be done any and all such acts and things as they deem to be appropriate in connection with the issuance of any Securities and/or to enable the Corporation to carry out the purposes and intent of the foregoing resolutions. W2907.TW EX-25.1 10 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM T-1 STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) THE FIRST NATIONAL BANK OF CHICAGO (Exact name of trustee as specified in its charter) A National Banking Association 36-0899825 (I.R.S. employer identification number) One First National Plaza, Chicago, Illinois 60670-0126 (Address of principal executive offices) (Zip Code) The First National Bank of Chicago One First National Plaza, Suite 0286 Chicago, Illinois 60670-0286 Attn: Lynn A. Goldstein, Law Department (312) 732-6919 (Name, address and telephone number of agent for service) DIAMOND SHAMROCK, INC. (Exact name of obligor as specified in its charter) Delaware 74-2456753 (State or other jurisdiction of (I.R.S. employer incorporation or organization) identification number) 9830 Colonnade Boulevard San Antonio, Texas 78230 (Address of principal executive offices) (Zip Code) Debt Securities (Title of Indenture Securities) Item 1. General Information. Furnish the following information as to the trustee: (a) Name and address of each examining or supervising authority to which it is subject. Comptroller of Currency, Washington, D.C., Federal Deposit Insurance Corporation, Washington, D.C., The Board of Governors of the Federal Reserve System, Washington D.C. (b) Whether it is authorized to exercise corporate trust powers. The trustee is authorized to exercise corporate trust powers. Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the trustee, describe each such affiliation. No such affiliation exists with the trustee. Item 16. List of exhibits. List below all exhibits filed as a part of this Statement of Eligibility. 1. A copy of the articles of association of the trustee now in effect.* 2. A copy of the certificates of authority of the trustee to commence business.* 3. A copy of the authorization of the trustee to exercise corporate trust powers.* 4. A copy of the existing by-laws of the trustee.* 5. Not Applicable. 6. The consent of the trustee required by Section 321(b) of the Act. 7. A copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority. 8. Not Applicable. 9. Not Applicable. Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, The First National Bank of Chicago, a national banking association organized and existing under the laws of the United States of America, has duly caused this Statement of Eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in the City of Chicago and State of Illinois, on the 16th day of May, 1995. The First National Bank of Chicago, Trustee, By /s/ R. D. Manella R. D. Manella Vice President and Senior Counsel Corporate Trust Services Division * Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits bearing identical numbers in Item 12 of the Form T-1 of The First National Bank of Chicago, filed as Exhibit 26 to the Registration Statement on Form S-3 of The CIT Group Holdings, Inc., filed with the Securities and Exchange Commission on February 16, 1993 (Registration No. 33-58418). EXHIBIT 6 THE CONSENT OF THE TRUSTEE REQUIRED BY SECTION 321(b) OF THE ACT May 16, 1995 Securities and Exchange Commission Washington, D.C. 20549 Gentlemen: In connection with the qualification of an indenture between Diamond Shamrock, Inc. and The First National Bank of Chicago, the undersigned, in accordance with Section 321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that the reports of examinations of the undersigned, made by Federal or State authorities authorized to make such examinations, may be furnished by such authorities to the Securities and Exchange Commission upon its request therefor. Very truly yours, The First National Bank of Chicago By: /s/ R. D. Manella R. D. Manella Vice President and Senior Counsel Corporate Trust Services Division EXHIBIT 7 A copy of the latest report of conditions of the trustee published pursuant to law or the requirements of its supervising or examining authority. Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/94 ST-BK: 17-1630 FFIEC 031 Address: One First National Plaza, Suite 0460 Page RC-1 City, State Zip: Chicago, IL 60670-0460 FDIC Certificate No.: 0/3/6/1/8 Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 1994 All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding of the last business day of the quarter. Schedule RC--Balance Sheet Dollar Amounts C400 <- in Thousands RCFD BIL MIL THOU ASSETS 1. Cash and balances due from depository institutions (from Schedule RC-A): a. Noninterest-bearing balances and currency and coin(1)... 0081 3,776.149 1.a. b. Interest-bearing balances(2).. 0071 7,670,634 1.b. 2. Securities a. Held-to-maturity securities (from Schedule RC-B, column A). 1754 163,225 2.a. b. Available-for-sale securities (from Schedule RC-B, column D). 1773 533,857 2.b. 3. Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and its Edge and Agreement subsidiaries, and in IBFs: a. Federal Funds sold. . . . . . . . 0276 4,037,205 3.a. b. Securities purchased under agreements to resell. . . . . . . 0277 423,381 3.b. 4. Loans and lease financing receivables: a. Loans and leases, net of unearned RCFD 2122 income (from Schedule RC-C) . . 15,617,618 4.a. b. LESS: Allowance for loan and RCFD 3123 lease losses. . . . . . . . . . 351,191 4.b. c. LESS: Allocated transfer risk RCFD 3128 reserve . . . . . . . . . . . . 0 4.c. d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b and 4.c) . . 2125 15,266,427 4.d. 5. Assets held in trading accounts . . . 3545 8,227,304 5. 6. Premises and fixed assets (including capitalized leases) . . . . . . . . 2145 512,222 6. 7. Other real estate owned (from Schedule RC-M) . . . . . . . 2150 46,996 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M). . . . . . . . 2130 7,571 8. 9. Customers' liability to this bank on acceptances outstanding . . . . . . 2155 507,151 9. 10. Intangible assets (from Schedule RC-M). . . . . . . . 2143 120,504 10. 11. Other assets (from Schedule RC-F) . . 2160 1,250,306 11. 12. Total assets (sum of items 1 through 11) . . . . 2170 42,542,932 12. (1) Includes cash items in process of collection and unposted debits. (2) Includes time certificates of deposit not held in trading accounts. Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/94 ST-BK: 17-1630 FFIEC 031 Address: One First National Plaza, Suite 0460 Page RC-2 City, State Zip: Chicago, IL 60670-0460 FDIC Certificate No.: 0/3/6/1/8 Schedule RC-Continued Dollar Amounts in Thousands Bil Mil Thou LIABILITIES 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part 1)... RCON 2200 15,103,504 13.a. (1) Noninterest-bearing(1) ... RCON 6631 6,129,078 13.a.(1) (2) Interest-bearing . . . . . . . RCON 6636 8,974,426 13.a.(2) b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II). . . . . . . . . . RCFN 2200 10,633,999 13.b. (1) Noninterest bearing. . . RCFN 6631 460,916 13.b.(1) (2) Interest-bearing . . . . RCFN 6636 10,173,083 13.b.(2) 14. Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and of its Edge and Agreement subsidiaries, and in IBFs: a. Federal funds purchased . . . RCFD 0278 2,883,499 14.a. b. Securities sold under agreements to repurchase . . . . . . . RCFD 0279 502,401 14.b. 15. a. Demand notes issued to the U.S. Treasury. . . . . . . . . . RCON 2840 112,289 15.a. b. Trading Liabilities . . . . . RCFD 3548 4,798,720 15.b. 16. Other borrowed money: a. With original maturity of one year or less. . . . . . . . RCFD 2332 2,355,421 16.a. b. With original maturity of more than one year . . . . . . . RCFD 2333 382,801 16.b. 17. Mortgage indebtedness and obligations under capitalized leases. . . . RCFD 2910 275,794 17. 18. Bank's liability on acceptance executed and outstanding. . . . RCFD 2920 507,151 18. 19. Subordinated notes and debentures RCFD 3200 1,225,000 19. 20. Other liabilities (from Schedule RC-G). . . . . . . . . RCFD 2930 860,989 20. 21. Total liabilities (sum of items 13 through 20). . . . . . RCFD 2948 39,641,568 21. 22. Limited-Life preferred stock and related surplus . . . . . . . . RCFD 3282 0 22. EQUITY CAPITAL 23. Perpetual preferred stock and related surplus . . . . . . . . RCFD 3838 0 23. 24. Common stock. . . . . . . . . . . RCFD 3230 200,858 24. 25. Surplus (exclude all surplus related to preferred stock) . . RCFD 3839 2,273,657 25. 26. a. Undivided profits and capital reserves. . . . . . RCFD 3632 431,545 26.a. b. Net unrealized holding gains (losses) on available-for-sale securities. . . . . . . . . RCFD 8434 (4,184) 26.b. 27. Cumulative foreign currency translation adjustments . . . . RCFD 3284 (512) 27. 28. Total equity capital (sum of items 23 through 27). . . . . . RCFD 3210 2,901,364 28. 29. Total liabilities, limited-life preferred stock, and equity capital (sum of items 21, 22, and 28) . . . . . . . . . . . . RCFD 3300 42,542,932 29. Memorandum To be reported only with the March Report of Condition. 1. Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external Number RCFD 6724 N/A M.1. auditors as of any date during 1993. . . . 1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank 2 = Independent audit of the bank's parent holding company conducted in accordance with generally accepted auditing auditors standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately) 3 = Directors' examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority) 4 = Directors' examination of the bank performed by other external auditors (may be required by state chartering authority) 5 = Review of the bank's financial statements by external auditors 6 = Compilation of the bank's financial statements by external auditors 7 = Other audit procedures (excluding tax preparation work) 8 = No external audit work (1) Includes total demand deposits and noninterest-bearing time and savings deposits. W2903.doc EX-27.1 11
5 3-MOS 12-MOS DEC-31-1995 DEC-31-1994 MAR-31-1995 DEC-31-1994 16,500 27,400 0 0 211,700 217,400 6,600 5,800 203,500 291,000 432,100 540,400 1,698,900 1,635,400 628,000 609,300 1,558,770 1,620,800 273,900 374,100 0 0 300 300 0 0 0 0 590,700 588,700 1,558,700 1,620,800 676,700 2,606,300 676,700 2,606,300 613,100 2,269,500 613,100 2,269,500 43,100 167,700 0 0 11,400 43,300 9,100 125,800 3,700 50,000 5,400 75,800 0 0 0 0 0 0 5,400 75,800 0.15 2.45 0.15 2.34
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