-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, WUdq/xJPUUKXENHpevo6eUYajLcw8R1dcHI+rkLgsugxWK9CotCMd2yNqRL8nz3i H4eLUmulibgNGZ3/87lK2w== 0000810316-95-000045.txt : 19951202 0000810316-95-000045.hdr.sgml : 19951202 ACCESSION NUMBER: 0000810316-95-000045 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19951130 EFFECTIVENESS DATE: 19951219 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-8 SEC ACT: 1933 Act SEC FILE NUMBER: 033-64645 FILM NUMBER: 95597924 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-8 1 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 DIAMOND SHAMROCK, INC. (Exact name of registrant as specified in its charter) Delaware 74-2456753 (State or other jurisdiction of (IRS Employer incorporation or organization) Identification No.) 9830 Colonnade Boulevard San Antonio, Texas 78230 (Address of Principal Executive (Zip Code) Offices) DIAMOND SHAMROCK, INC. NONQUALIFIED 401(k) PLAN (Full title of the plan) Timothy J. Fretthold Senior Vice President/Group Executive and General Counsel 9830 Colonnade Boulevard San Antonio, Texas 78230 (Name and address of agent for service) (210) 641-6800 (Telephone number, including area code, of agent for service) Calculation of Registration Fee Title of Amount Proposed Proposed Amount of securities to be maximum maximum registration to be registered offering aggregate fee registered price per offering share price ____________________________________________________________________________ Deferred Compensation obligations(1) $3,000,000 100%(2) $3,000,000(2) $1,034.48 Common 100,000 $24.6875(4) $2,468,750(4) $ 851.29 Stock, $.01 par value(3) (1) The Deferred Compensation Obligations are unsecured general obligations of Diamond Shamrock, Inc. to pay deferred compensation in the future in accordance with the terms of the Diamond Shamrock, Inc. Nonqualified 401(k) Plan (the "Plan"). (2) Estimated solely for the purpose of determining the registration fee. (3) Includes associated preferred share purchase rights issuable pursuant to the Rights Agreement filed as Exhibit 4.2 hereto. (4) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457(h)(1) based on the market value of shares of Common Stock of Diamond Shamrock, Inc. (the "Company") $24.6875 per share, which is the average of the high and low sale prices thereof on the Composite Tape of the New York Stock Exchange on November 22, 1995.) PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference The following documents filed with the Securities and Exchange Commission (the "Commission") are incorporated herein by reference: (a) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1994, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"). (b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarters ended March 31, 1995, June 30, 1995, and September 30, 1995, and the Company's Current Reports on Form 8-K, dated January 25, 1995, February 6, 1995, and June 1, 1995 and all other reports, if any, filed by the Company pursuant to Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal year ended December 31, 1994. (c) The description of the Common Stock contained in the Company's Registration Statement on Form 10 (File No. 1-9409), filed pursuant to Section 12(b) of the 1934 Act, and any amendment or report filed for the purpose of updating such information. All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934 Act subsequent to the filing of this Form S-8 Registration Statement (the "Registration Statement") and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of the filing of such documents. Item 4. Description of Securities The Plan allows executive participants to defer compensation and director participants to defer annual retainer and meeting fees. Before the start of the fiscal year in which the compensation will be earned, participants may elect the amount to be deferred and the time and manner of distribution. The amounts deferred represent unsecured general obligations ("Obligations") of the Company to pay, in the future, deferred compensation and any net earnings attributable thereto in accordance with the terms of the Plan and the Trust Agreement between the Company and Key Trust Company of Ohio, N.A. (formerly known as AmeriTrust Company N.A.) (the "Trustee") dated as of April 8, 1988, as amended (the "Trust Agreement"). The Obligations may be deemed to be a security and, therefore, are being registered along with Common Stock that may be issued in satisfaction of the Obligations in certain circumstances. Participants and beneficiaries have the status of general unsecured creditors with respect to the assets of the trust. No trust beneficiary shall have any preferred claim on, or any beneficial ownership interest in, any assets in the trust prior to the time that such assets are paid to a trust beneficiary. The obligation of the Trustee to pay benefits pursuant to the Trust Agreement constitutes an unfunded and unsecured promise to pay such benefits. The Trustee has only the duties described herein and in the Trust Agreement and has no authority to enforce the Company's Obligations to participants or otherwise represent participants under the Plan. The Obligations will not have the benefit of a negative pledge or any other affirmative or negative covenant on the part of the Company. The amount deferred by each participant is determined in accordance with the Plan based on the participant's elections. Such amounts will be payable on a date selected by the participant in accordance with the terms of the Plan. The deferred amounts may be deemed invested in one or more deemed investment funds available under the Plan. The Company will credit the participant's account with a partial "match" of the deferrals, as described in the Plan. The amount of any deferrals and "matches" shall be credited to an account maintained by the Company on its books in the name of the participant. The balance of the account will be increased or decreased to reflect income, expenses, gains, and losses deemed attributable to the account. Neither any participant nor any beneficiary shall have the right to alienate, assign, or encumber any amount that may be payable under the Plan nor shall any account be subject to alienation, assignment, encumbrance, or garnishment, voluntary or involuntary, by process of law or otherwise. Notwithstanding the foregoing, the Company may follow the terms of any court order issued in connection with any domestic relations proceeding including but not limited to marital dissolution or child support. Item 6. Indemnification of Directors and Officers Under Delaware law, directors, officers, employees and other individuals may be indemnified against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation (a "derivative action")) if they acted in good faith and in a manner they reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of a derivative action, except that indemnification only extends to expenses (including attorneys' fees) incurred in connection with defense or settlement of such an action and Delaware law requires court approval before there can be any indemnification of expenses where the person seeking indemnification has been found liable to the Company. Article Tenth, Section 2 of the Certificate of Incorporation of the Company (the "Certificate") provides generally for the Company to indemnify any person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Company or a subsidiary thereof or is or was serving at the request of the Company, joint venture, trust or other enterprise including service with respect to employee benefit plans, whether the basis of such proceeding is alleged action in an official capacity as a director, officer, partner, member or trustee or in any other capacity while so serving, to the fullest extent authorized by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Company to provide broader indemnification rights than such law prior to such amendment permitted the Company to provide), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties, and amounts paid or to be paid in settlement) reasonably incurred or suffered by such person in connection therewith. Article Tenth, Section 2(d) of the Certificate provides that the Company may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corporation Law. The Company and each of its directors have entered into indemnification agreements. Pursuant to such agreements, each of the directors is entitled to indemnification whether the director's acts, failures to act, neglect or breach of duty giving rise to the right to indemnity thereunder occurred prior to or subsequent to the date of such agreement. Such right, however, is not available with respect to acts, failures to act, neglect or breaches of duty of a director occurring prior to the date such person was elected as a director of the Company. Such indemnification agreements attempt to specify the extent to which the directors may receive indemnification under circumstances in which indemnity would not otherwise be provided by Article Tenth. Such agreements entitle the directors to indemnification as expressly provided by Article Tenth and to indemnification for any amount which a director is or becomes legally obligated to pay relating to or arising out of any claim made against such director because of any act, failure to act or neglect or breach of duty, including any actual or alleged error, misstatement or misleading statement, which such director commits, suffers, permits or acquiesces in while acting in the director's position with the Company. The right to receive payments under such agreements in excess of those expressly provided for in Article Tenth would not be permitted, however, in connection with any claim against a director: (i) which results in a final, nonappealable order for the director to pay a fine or similar governmental imposition which the Company is prohibited by applicable law from paying; or (ii) to the extent based upon or attributable to the director gaining in fact a personal profit to which he or she was not legally entitled, including without limitation profits made from the purchase and sale by the director of equity securities of the Company which are recoverable by the Company pursuant to Section 16(b) of the 1934 Act and profits arising from transactions in publicly traded securities of the Company which were effected by the director in violation of Section 10(b) of the 1934 Act, including Rule 10b-5 promulgated thereunder. Another purpose of the indemnification agreements is to provide the directors with increased assurance of indemnification by prohibiting the Company from adopting any amendment to the Company's Certificate or By-Laws which would have the effect of denying, diminishing or encumbering a director's indemnification rights pursuant thereto or to the Delaware Law or any other law as applied to any act or failure to act occurring in whole or in part prior to the effective date of such amendment. The Company and certain of its officers have entered into indemnification agreements similar to those described above with directors. The Company has purchased and maintains insurance on behalf of any person who is or was a director or officer against any loss arising from any claim asserted against him and incurred by him in any such capacity, subject to certain exclusions. Item 8. Exhibits 4.1 Diamond Shamrock, Inc. Nonqualified 401(k) Plan 4.2 Rights Agreement between the Company and Ameritrust Company, National Association, as Rights Agent, dated March 6, 1990 (Exhibit 2 to the Company's Form 8-A Registration Statement dated March 6, 1990)* 5 Opinion of Timothy J. Fretthold, Esq. 15 Independent Accountants' Awareness Letter 23.1 Consent of Price Waterhouse LLP 23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5) 24.1 Powers of Attorney of directors and officers of the Company 24.2 Certificate regarding resolutions of the Board of Directors of the Company * Each document marked by an asterisk is incorporated herein by reference to the designated document previously filed with the Commission Item 9. Undertakings A. The Company hereby undertakes (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (a) To include any prospectus required by Section 10(a) (3) of the Securities Act of 1933, as amended (the "1933 Act"), (b) To reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this Registration Statement. Notwithstanding the foregoing, any increase of decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement and (c) To include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; (2) That, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The Company hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan's annual report pursuant to section 15(d) of the 1934 Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company is advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the 1933 Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, Texas, on the 30th day of November, 1995. DIAMOND SHAMROCK, INC. By:* R.R. Hemminghaus Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the 1933 Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated: Signature Title Date *R.R. HEMMINGHAUS Chairman of the Board November 30, 1995 and Chief Executive Officer *R.C. BECKER Vice President and November 30, 1995 Treasurer (Principal Financial Officer) *GARY E. JOHNSON Vice President and November 30, 1995 Controller(Principal Accounting Officer) *B. CHARLES AMES Director November 30, 1995 *E. GLENN BIGGS Director November 30, 1995 *W.E. BRADFORD Director November 30, 1995 *LAURO F. CAVAZOS Director November 30, 1995 *W.H. CLARK Director November 30, 1995 *WILLIAM L. FISHER Director November 30, 1995 *BOB MARBUT Director November 30, 1995 *KATHERINE D.ORTEGA Director November 30, 1995 Timothy J. Fretthold, by signing his name hereto, does hereby sign this Registration Statement on Form S-8 on behalf of Diamond Shamrock, Inc. and each of the above-named officers and directors of Diamond Shamrock, Inc. pursuant to powers of attorney executed on behalf of the Company and each of such officers and directors. By: /s/ Timothy J. Fretthold Timothy J. Fretthold Attorney-in-fact November 30, 1995 INDEX TO EXHIBITS Exhibit No. Exhibit 4.1 Diamond Shamrock, Inc. Nonqualified 401(k) Plan 4.2 Rights Agreement between the Company and Ameritrust Company, National Association, as Rights Agent, dated March 6, 1990 (Exhibit 2 to the Company's Form 8-A Registration Statement dated March 6, 1990)* 5 Opinion of Timothy J. Fretthold, Esq. 15 Independent Accountants' Awareness Letter 23.1 Consent of Price Waterhouse LLP 23.2 Consent of Timothy J. Fretthold, Esq. (included in Exhibit 5) 24.1 Powers of Attorney of directors and officers of the Company 24.2 Certificate regarding resolutions of the Board of Directors of the Company * Each document marked by an asterisk is incorporated herein by reference to the designated document previously filed with the Commission W3002.asc EX-4.1 2 DIAMOND SHAMROCK, INC. NONQUALIFIED 401(k) PLAN 1. Purpose of Plan. It is the purpose of this Plan (a) to enable each Director of the Corporation who is separately compensated for his or her services on the Board of Directors of the Corporation to defer some or all compensation payable for future services to be performed by such Director as a member of the Board of Directors of the Corporation or as a member of any committee of the Board, and (b) to enable each employee who is in a select group of management and who earns at least Sixty-Six Thousand and No/100 Dollars ($66,000.00) per year in Compensation (as adjusted each year by the Internal Revenue Service for cost of living increases in accordance with Internal Revenue Code sections 414(q) and 415(d)) to defer part of the Compensation payable for future services to be performed by such employee as an executive of the Corporation. 2. Definitions. The following definitions are used throughout the Plan: (a) "Account" means the account, described in Section 7 below, to which is credited Compensation deferred in accordance with this Plan. (b) "Administrator" means the person designated by the Board of Directors or by the committee described by Section 2(d) hereof with power and authority to construe, interpret and administer this Plan pursuant to Section 12 below. (c) "Beneficiary" means the person or persons designated from time to time by a Participant to receive payments under this Plan after the Participant's death, using the Notice of Beneficiary Designation, a form of which is attached as Exhibit C, or some other method of designation which provides Beneficiary designation information similar to that in such Notice of Beneficiary Designation. (d) "Board" or "Board of Directors" means the Board of Directors of the Corporation or any committee of such Board of Directors to the extent that such committee has been delegated authority to act on behalf of the Board of Directors with respect to this Plan. (e) "Cause" means failure to return from a leave of absence, criminal activity, or willful misconduct or gross negligence in the performance of duties or in the observation of written Corporation personnel policies applicable to the Executive. (f) "Code" means the Internal Revenue Code of 1986, as amended. (g) "Common Stock" means whole shares of common stock of the Corporation. (h) "Compensation" means payments that may be made by the Corporation to a Director Participant for services on the Corporation's Board of Directors or on any committee of the Board, including retainer fees to be paid in cash and meeting fees, and payments that may be made by the Corporation to an Executive Participant for services rendered to the Corporation, including base salary and annual performance incentives. (i) "Corporation" means Diamond Shamrock, Inc., a Delaware corporation, or, where the context requires, any affiliate or subsidiary of Diamond Shamrock, Inc. (j) "Director" means a member or honorary member of the Board of Directors of the Corporation. (k) "Director Participant" means any Director who is separately compensated for his services on the Board of Directors, or on any committee of the Board, and who participates in this Plan. (l) "Effective Date" means January 1, 1996. (m) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. (n) "Executive" means any employee of the Corporation who is in a select group of management and earns at least Sixty-Six Thousand and No/100 Dollars ($66,000.00) per year in Compensation (as adjusted each year by the Internal Revenue Service for cost of living increases in accordance with Internal Revenue Code sections 414(q) and 415(d)). (o) "Executive Participant" means any Executive who participates in this Plan. (p) "401(k) Plan" means the Diamond Shamrock, Inc. 401(k) Retirement Savings Plan. (q) "Notice of Beneficiary Election" means the notice provided for in Section 11 below. (r) "Notice of Election" means the notice provided for in Section 5 below. (s) "Participant" means any Director Participant or Executive Participant. (t) "Plan" means the Diamond Shamrock, Inc. Nonqualified 401(k) Plan, as amended. (u) "Year of Service" means, with respect to a Director Participant, a 12- consecutive-month period during which a Director Participant served as a separately compensated member of the Board of Directors. With respect to an Executive Participant, service and year of service shall be determined in the same manner as they are determined in the 401(k) Plan. 3. Eligibility. (a) Any Director of the Corporation who is separately compensated for such Director's services on the Board of Directors shall be eligible to participate in this Plan; provided, however, that any Director who initially is so separately compensated after January 1 in any calendar year shall become eligible to participate in this Plan beginning January 1 of the following calendar year. (b) Any Executive of the Corporation shall be eligible to participate in this Plan; provided, however, that any person who initially becomes an Executive after January 1 in any calendar year shall become eligible to participate in this Plan beginning January 1 of the following calendar year. 4. Account Credits. Accounts will be credited with Elective Deferrals, Matching Contributions, and Make-Up of 401(k) Match Contributions. (a) Elective Deferrals. "Elective Deferrals" are amounts credited to the Accounts of Executive Participants who have agreed to defer receipt of their base salary and/or bonus, and amounts credited to the Accounts of Director Participants who have agreed to defer receipt of their annual retainer or meeting fees. Executive participants may defer from 1% to 20% of base salary and from 1% to 100% of annual incentive bonus. The percentage of base salary and annual incentive bonus deferred must be the same up to 6%. Director participants may defer any percentage of annual retainer or meeting fees. (b) Matching Contributions. "Matching Contributions" are additional amounts credited to the accounts of Participants who have made Elective Deferrals. The Corporation will credit the Participant's Account with an amount equal to 50% of the Participant's Elective Deferral; provided, however, no Matching Contribution to an Executive Participant's Account will exceed 3% of Compensation when added to the matching contribution which would have been made by the Corporation pursuant to the 401(k) Plan if the Executive Participant had deferred the maximum amount possible through the 401(k) Plan consistent with that plan and Internal Revenue Service nondiscrimination testing and deferral limitations and no Matching Contribution to a Director Participant's Account will exceed 3% of Compensation. (c) Make-Up of 401(k) Match Contributions. Compensation of an Executive Participant which is deferred under the 401(k) Plan does not include Compensation deferred pursuant to this Plan. To recognize that Elective Deferrals made by an Executive Participant in this Plan reduce the match by the Corporation to such Executive Participant's account in the 401(k) Plan, additional amounts will be credited to such Executive Participant's Account in this Plan equal to the 401(k) Plan match lost because of such salary reduction ("Make-Up of 401(k) Match Contributions"). 5. Manner of Election. (a) Any Director or Executive wishing to participate in this Plan must file with the Administrator a written notice, on the Notice of Election, a form of which is attached as Exhibit A, electing to defer payment of such person's Compensation as may be permitted under this Plan. An election shall be effective with respect to Compensation earned during the first calendar year that commences after the date of filing of the Notice of Election, and except to the extent such election is subsequently modified or terminated as provided below, subsequent calendar years. (b) An election may be modified by filing with the Administrator a new Notice of Election on or before the November 30 immediately preceding the first calendar year for which such modification is to be effective (for 1996 only, such notice must be filed by December 31, 1995). No modification shall be effective with respect to Compensation earned prior to the date the modification is received by the Administrator or the effective date of the new Notice of Election, whichever is later. (c) An election may be terminated by the filing with the Administrator of a Notice of Termination, a form of which is attached as Exhibit B, on or before the November 30 immediately preceding the first calendar year for which such termination is to be effective (for 1996 only, such notice must be filed by December 31, 1995). No termination shall be effective with respect to Compensation earned prior to the date the Notice of Termination is received by the Administrator or the effective date of the Notice of Termination, whichever is later. An election shall also terminate on the date a person ceases to be an Executive or a Director, as the case may be, effective for Compensation earned on or after such date. (d) A person for whom an election is terminated may thereafter file a new Notice of Election for future calendar years for which such person is eligible to participate in this Plan. 6. Deemed Investment of Contributions. The Corporation may allow each Participant to elect one or more deemed investment funds established by the Corporation in which Elective Deferrals will be deemed to be invested. Matching Contributions and any Make-Up of 401(k) Match Contributions will be deemed to be invested, on a pro rata basis, in the same deemed investment funds in which Elective Deferrals are deemed to be invested. 7. Participant Accounts and Reports to Participants. (a) The amount of any Elective Deferral and Matching Contribution, and, with respect to an Executive Participant, any Make-Up of any 401(k) Match Contribution, shall be credited to an Account maintained by the Corporation on its books in the name of the Participant. (b) The balance of the Account will be increased or decreased to reflect income, expenses, gains, and losses deemed attributable to the Account. (c) The Administrator shall cause the Corporation to keep an accurate record of the amounts credited to the Account of each Participant, and as of the end of each calendar quarter shall deliver to each Participant a written statement of such Participant's Account. 8. Vesting. (a) Participants are 100% vested in Elective Deferrals. (b) Participants become vested in Matching Contributions and Make-Up of 401(k) Match Contributions made by the Company upon the earlier of: (i) completion of five Years of Service, or (ii) a Change in Control, as that term is defined in the Diamond Shamrock, Inc. Excess Benefits Plan. 9. Participants are Unsecured Creditors. (a) All rights, title and interest in the balance credited to the Account of a Participant shall remain at all times solely as the Corporation's unsecured contractual obligation under this Plan. Neither a Participant nor any other person, including, without limitation, any Beneficiary shall have any right, title or interest of any kind, by reason of this Plan, in any investment deemed to be made on behalf of a Participant or in any specific assets of the Corporation, the Plan, or any trust other than the Corporation's unsecured and unfunded obligation to make the payments described in this Plan. (b) Notwithstanding the provisions of Section 9(a) hereof, the Corporation may transfer to the trustee of one or more trusts established for the benefit of one or more Participants assets from which all or a portion of the benefits provided under the Plan will be satisfied, provided that such assets held in trust shall at all times be subject to the claims of general unsecured creditors of the Corporation and no Participant shall at any time have a prior claim to such assets. 10. Payment. (a) Except in the case of the retirement, disability or death of a Participant, a distribution of such Participant's Account balance shall commence as of the earlier of (i) to the extent practicable, in the sole discretion of the Administrator, the last day a Director Participant is a Director or an Executive Participant is an employee of the Corporation, but not later than the last day of the month following the date a Director Participant ceases to be a Director or an Executive Participant ceases to be an employee of the Corporation; or (ii) any date specified by such Participant on the Notice of Election for distribution of such Participant's Account (which specified date is not after the January 1 following the calendar year in which such Participant reaches age 70). In the case of a distribution by reason of (i) above, such distribution shall be in the form of a lump sum, regardless of the election of the Participant on the Notice of Election. (b) In the event of a Participant's retirement or disability, a distribution of such Participant's Account balance shall commence as of the later of (i) to the extent practicable, in the sole discretion of the Administrator, the last day a Director Participant is a Director or an Executive Participant is an employee of the Corporation, but not later than the last day of the month following the date a Director Participant ceases to be a Director or an Executive Participant ceases to be an employee of the Corporation; or (ii) any date specified by such Participant on the Notice of Election for distribution of such Participant's Account (which specified date is not after the January 1 following the calendar year in which such Participant reaches age 70). In the case of a distribution by reason of this Section 10(b), such distribution shall be in the form elected by the Participant on the Notice of Election. (c) In the event of a Participant's death, the balance of the Account shall be distributed in a lump sum to the Beneficiary designated pursuant to Section 11 below. The lump sum payment shall be paid as of the last day of the month following the Participant's date of death. (d) Distributions from the Plan will be made in the form of cash except any deemed Common Stock investments may be distributed in the form of cash or Common Stock, as elected by the Participant. Distributions will be made to the Participant or, in the event of such Participant's death, to the designated Beneficiary, in accordance with the Participant's election and Section 11 below. (e) On each date for an installment distribution, there shall be distributed to the Participant an amount in cash equal to the sum of the cash balance then credited to such Participant's Account multiplied by a fraction, the numerator of which is one and the denominator of which is the number of remaining installments. Any deemed Common Stock investment will be distributed in a similar manner by taking into account the value of the Common Stock investment account; provided, however, that distributions attributable to such account may be made in the form of cash or Common Stock, as elected by the Participant. (f) Notwithstanding the provisions of Sections 10(a), (b), (c), (d) and (e) hereof, the person or group designated in clause (i), (ii) or (iii), below, as appropriate, in its absolute discretion exercised in good faith, may accelerate the rate of distribution but only in the case of unanticipated severe financial hardship caused by circumstances over which the Participant has no control, and only to the extent necessary to alleviate such financial hardship. (i) In the case of a Director Participant, an ad hoc committee of the Board consisting of those members of the Compensation Committee of the Board who are not Participants in the Plan. If all the members of the Compensation Committee participate in the Plan, such decision shall be made by the Board; however, no member of the Board shall participate in any such decision affecting uniquely such member as a Participant. (ii) In the case of an Executive Participant, the Administrator. (iii) Notwithstanding clause (i) or (ii), above, if one or more trusts have been established pursuant to Section 9(b) hereof, to the extent assets in such trust or trusts are available therefor, the trustee of the trust. (g) The balance of a Participant's Account shall be appropriately reduced in accordance with this Section 10 to reflect distributions made hereunder. (h) Any election with respect to the distribution of Compensation deferred for a given period pursuant to this Plan shall be irrevocable. (i) The balance of a Participant's Account may be reduced by the amount of any indebtedness of such Participant to the Corporation at the time of distribution. Failure to reduce any payment to a Participant will not constitute waiver of the Corporation's claim for such indebtedness. (j) Notwithstanding the foregoing provisions of this Section 10, the Corporation shall make provision for the withholding of any Federal, state or local taxes that may be required to be withheld by the Corporation in connection with the payments due hereunder. 11. Beneficiary Designation. A Participant may designate in writing any person or persons to whom payments are to be made if the Participant dies before receiving payment of all amounts due under this Plan and the proportion or proportions in which distributions are to be made to each such person, using the Notice of Beneficiary Designation, a form of which is attached as Exhibit C, or some other method of designation which provides Beneficiary designation information similar to that in such Notice of Beneficiary Designation. A Participant may designate a Beneficiary other than a spouse only if the spouse consents in writing as witnessed by a Plan or Corporation representative or notary public. A Beneficiary designation will be effective only after the Notice of Beneficiary Designation or other designation is filed with and accepted by the Administrator while the Participant is alive and, to the extent indicated by the Participant in the Notice of Beneficiary Designation or other designation, will cancel all beneficiary designations signed and filed earlier by such Participant. Any such designation may be terminated or modified from time to time by the Participant. If and to the extent that a Participant fails to designate a Beneficiary or if all of the Beneficiaries of the Participant die before the death of the Participant or before complete payment of all amounts credited to the Participant's Account under this Plan, the remaining unpaid amounts shall be paid in one lump sum to the estate of the last to die of the Participant or the Participant's Beneficiaries. 12. Administration of Plan. (a) Except as provided in Section 10(f), full power and authority to construe, interpret and administer this Plan shall be vested in the Administrator, who may from time to time adopt any rules or regulations the Administrator determines are necessary or appropriate. If there is no Administrator, the power and authority of the Administrator shall rest with Board; however, no member of the Board shall participate in any decision affecting uniquely such member as a Participant. Decisions of the Administrator, the ad hoc committee described in Section 10(f) and the Board made in good faith, shall be final, conclusive and binding upon all parties. (b) In the absence of bad faith or gross neglect of duty, neither the Administrator nor any member of the Board of Directors shall have any liability to the Corporation or to any other person, firm or corporation arising out of or connected with the administration of this Plan for any decision made respecting this Plan or its administration. 13. Amendment or Discontinuance of Plan. At the sole discretion of the Board this Plan may be discontinued or changed at any time. Upon such discontinuance, the vested amounts credited to the Account of any Participant shall be distributed in satisfaction of the obligations of the Corporation under this Plan, in the manner selected at the option of the Board or at the option of the Administrator if so directed by the Board, as follows: (a) The Account balance may be distributed in a lump sum as of the date of discontinuance in a manner consistent with Section 10 hereof. The lump sum payment shall be made on the last day of the month following the date of discontinuance; or (b) The Account balance may be distributed in accordance with the Notice of Election; or (c) Commencing on the last day of the month following the date of discontinuance, the Account balance may be distributed in no more than ten annual installments, calculated in the same manner as payments under Section 10(e). Notwithstanding the foregoing provisions of this Section 13, the Board may make any change in this Plan that, under all the circumstances, is beneficial and equitable to the Participants and is consistent with the spirit and purposes of this Plan. However, no member of the Board who is a Participant in the Plan shall participate in any such decision affecting uniquely such member as a Participant. The Plan is intended to provide benefits for "management or highly compensated" employees within the meaning of Sections 201, 301 and 401 of ERISA, and therefore to be exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Accordingly, the Plan shall terminate and no further benefits shall accrue hereunder in the event it is determined by a court of competent jurisdiction or by an opinion of counsel to the Corporation that such balance of the Plan constitutes an employee pension benefit plan within the meaning of Section 3(2) of ERISA, which is not so exempt. In addition, in the absolute discretion of the Board, the vested benefit of each Participant accrued under such balance of the Plan on the date of termination shall be paid immediately to such Participant in a lump sum. 14. Miscellaneous (a) Except insofar as permitted by applicable law, no sale, transfer, alienation, assignment, pledge, collateralization or attachment of any benefits under the Plan shall be valid or recognized by the Corporation. The Participant, his spouse and his designated Beneficiary shall not have any power to hypothecate, mortgage, commute, modify or otherwise encumber in advance of any of the benefits payable hereunder, nor shall any of said benefits be subject to seizure for the payment of any debts, judgments, alimony, maintenance owed by the Participant or his or her Beneficiary, or be transferable by operation of law in the event of bankruptcy, insolvency, or otherwise. Notwithstanding the foregoing, the Corporation may, if the Committee so determines in its sole discretion, follow the terms of any court order issued in connection with any domestic relations proceeding including but not limited to marital dissolution or child support. (b) The Plan shall be binding upon the Corporation, its assigns, and any successor company which shall succeed to substantially all of its assets and business through merger, acquisition or consolidation, and upon a Participant, his Beneficiary, assigns, heirs, executors and administrators. (c) The terms and conditions of the Plan shall not be deemed to constitute a contract of employment between the Corporation and a Participant. Nothing in this Plan shall of itself be deemed to give a Participant the right to be retained in the service of the Corporation or to interfere with any right of the Corporation to discipline or discharge the Participant at any time. (d) A Participant shall cooperate by furnishing any and all information reasonably requested by the Corporation, the Board or the Administrator, and take such other actions as may be requested in order to facilitate the administration of the Plan and the payment of benefits hereunder. (e) In case any provision of this Plan shall be found illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but the Plan shall be construed and enforced as if such illegal and invalid provision had never been included herein. (f) Any notice which shall be or may be given under the Plan shall be in writing and shall be mailed by United States mail, postage prepaid. If notice is to be given to the Corporation (or to the Board or the Administrator), such notice shall be addressed to the Corporation at P.O. Box 696000, San Antonio, Texas 78269-6000, Attention: Vice President, Human Resources; if notice to a Participant, addressed to the last known address on the Corporation's personnel records. Any notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Participant. Any party may, from time to time, change the address to which notices shall be mailed by giving written notice of such new address. (g) The interest in the benefits hereunder of a spouse of a Participant who has predeceased the Participant shall automatically pass to the Participant and shall not be transferable by such spouse in any manner, including but not limited to such spouse's will, nor shall such interest pass under the laws of intestate succession. (h) The benefits provided for a Participant and Participant's Beneficiary under the Plan are in addition to any other benefits available to such Participant under any other plan or program for employees of the Corporation. The Plan shall supplement and shall not supersede, modify or amend any other such plan or program except as may otherwise be expressly provided herein. (i) The payment of benefits under the Plan to a Participant or Beneficiary shall fully and completely discharge the Corporation and the Board from all further obligations under this Plan with respect to the portion of the benefits so paid. (j) If any action at law or in equity is necessary by a Participant or Beneficiary to enforce the terms of the Plan, the Participant or Beneficiary shall be entitled to recover reasonable attorneys' fees, costs and necessary disbursements in addition to any other relief to which that party may be entitled. (k) (i) Unless the context clearly indicates otherwise, (A) masculine pronouns shall include the feminine and singular words shall include the plural and vice versa; (B) any reference to a section of the Code or ERISA, any regulation promulgated under the Code or ERISA or any plan (except this Plan) shall refer also to any successor provision to such section, and (C) any reference to a plan shall refer also to such plan as amended from time to time. (ii) Titles and headings of the articles and sections of the Plan are included for ease of reference only and are not to be used for the purpose of construing any portion or provision of the Plan document. (l) This instrument and any notice may be executed in one or more counterparts, each of which is legally binding and enforceable. (m) Except to the extent other instruments are incorporated herein by reference or there are amendments made to this Plan in the manner specified by Article 13 hereof, this instrument constitutes the entire Plan. 15. Governing Law. To the extent not preempted by Federal law, the provisions of this Plan shall be interpreted and construed in accordance with the laws of the State of Texas. 16. Effective Date. The effective date for this Plan shall be January 1, 1996. DIAMOND SHAMROCK, INC. By: /s/ WILLIAM R. KLESSE Executive Vice President W3015.LW EXHIBIT A NOTICE OF ELECTION for Diamond Shamrock, Inc. Nonqualified 401(k) Plan 1. Pursuant to the provisions of the Plan, I elect to have compensation payable to me for services to Diamond Shamrock, Inc. deferred in the manner specified below. I understand that this election shall be irrevocable as to compensation earned by me following the filing and effectiveness of this election, except to the extent I file a subsequent Notice of Election or Notice of Termination with the Administrator applicable to compensation earned by me in a calendar year subsequent to such filing. I also understand that no modification or termination shall be effective with respect to compensation deferred prior to the calendar year following the date any subsequent Notice of Election or Notice of termination is received by the Administrator. 2. Percentage of compensation deferred (Director Participants). Annual Cash Retainer Meeting Fees [ ] All [ ] All [ ] None [ ] None ___ Percent ___ Percent 3. Percentage of compensation deferred (Executive Participants). ________% of Compensation--Base Salary and Annual Incentive Bonus (minimum amount is 1% and maximum amount is 20%). The percentage of Base Salary and Annual Incentive Bonus deferred must be the same up to 6%. If you defer at least 6% of your total compensation and wish to defer a greater percentage of Annual Incentive Bonus than of Base Salary, please note this percentage below: ________% of Annual Incentive Bonus (total amount, including percent deferred above; maximum amount is 100%) 4. Deemed Investment Funds _____% Diamond Shamrock Common Stock Fund _____% Guaranteed Income Fund _____% Fidelity Advisor Growth Opportunities Account _____% Vanguard S & P Index Fund 5. Date of commencement of payments. Except in the case of retirement, disability or death of a Participant, distribution will be made, pursuant to Section 10(a) of the Plan, on the earlier of: (a) the date a Director Participant ceases to be a Director or an Executive Participant ceases to be an employee of the Corporation, or (b) the commencement date specified below (select one): ___ retirement. ___ the January 1 following the calendar year in which I reach age 70. ___ the following date (which shall in no event be after the January 1 following the calendar year in which I reach age 70) ____________, 19__. In the event of a Participant's retirement or disability, distribution will commence, pursuant to Section 10(b) of the Plan, on the later of (a) the date a Director Participant ceases to be a Director or an Executive Participant ceases to be an employee of the Corporation or (b) the date selected above. 6. Method of Payment (select one) (see Note 2 at end of Notice). ___ Lump sum, or ___ Annual installments over a period of ___ years (not over ten). Date____________________________ Signature___________________________ Date Notice of Election received by the Administrator: Date____________________________ Signature___________________________ NOTES TO NOTICE OF ELECTION 1. Participants should be aware that a deferral may reduce the benefit payable under the Diamond Shamrock, Inc. Career Average Retirement Income Plan (the "CARIP") and the Diamond Shamrock, Inc. Employee Stock Ownership Plan I (the "ESOP I") and the Diamond Shamrock, Inc. Employee Stock Ownership Plan II (the "ESOP II"). Any amount deferred to a date following termination of employment will not be taken into account for purposes of computing the CARIP, ESOP I, and ESOP II qualified pension benefits. As a result, the CARIP, ESOP I, and ESOP II qualified pension benefits will be less than if the deferral had been paid prior to the Participant's termination of employment. Such "lost" benefits will be paid pursuant to the Diamond Shamrock, Inc. Excess Benefits Plan. Amounts paid pursuant to the Excess Benefits Plan are not adjusted for the loss of any tax benefits which would have been realized had such benefits been paid under a qualified plan. 2. All distributions under the Plan represent taxable income to the Participant and may not be rolled over to an Individual Retirement Account. EXHIBIT B NOTICE OF TERMINATION for Diamond Shamrock, Inc. Nonqualified 401(k) Plan Pursuant to the provisions of the Plan, I hereby terminate my participation in the Plan effective as of January 1, 19__. Date______________________ Signature____________________________ Date Notice of Termination received by Administrator: Date______________________ Signature____________________________ Administrator EXHIBIT C NOTICE OF BENEFICIARY DESIGNATION for Diamond Shamrock, Inc. Nonqualified 401(k) Plan (the "Plan") Any amounts credited to my account under the Plan unpaid at my death shall be paid to the following beneficiary or beneficiaries, in the proportions designated: _____________________________ ____________% ____________________ Name Proportion Relationship ____________________________________________________________________________ Address _____________________________ _____________% _____________________ Name Proportion Relationship ____________________________________________________________________________ Address _____________________________ _____________% ______________________ Name Proportion Relationship ___________________________________________________________________________ Address This designation supersedes any previous beneficiary designation made by me with respect to the amounts credited to my account under the Plan. I hereby reserve the right to terminate or modify any designation made by this Instrument, at any time or from time to time. Participant's Date_____________________ Signature_______________________________ Witness' Date_____________________ Signature_______________________________ A Participant may designate a Beneficiary other than a spouse only if the spouse consents in writing as witnessed by a Plan or Corporation representative or notary public. Spousal Waiver As spouse of the above named Participant, I hereby consent to the preceding beneficiary designation. I understand that I am waiving my right to be designated the Beneficiary under the Plan. Spouse's Date______________________ Signature________________________________ Witness' Date______________________ Signature________________________________ Date Designation received by Administrator: Administrator's Date______________________ Signature________________________________ Note: Other methods of beneficiary designation which provide beneficiary designation information similar to that in this Instrument may be used instead of this Instrument. W3015.LW EX-5 3 November 30, 1995 Diamond Shamrock, Inc. 9830 Colonnade Boulevard San Antonio, Texas 78230 Re: Diamond Shamrock, Inc. Nonqualified 401(k) Plan Gentlemen: I am Senior Vice President/Group Executive and General Counsel for Diamond Shamrock, Inc., a Delaware corporation (the "Company"). The Company expects to file with the Securities and Exchange Commission on or about November 30, 1995 under the Securities Act of 1933, as amended, a Registration Statement on Form S-8 (the "Registration Statement") for the purpose of registering 100,000 shares of common stock, $0.01 par value of the Company ("Common Stock") (which Common Stock will be acquired from time to time in the open market pursuant to the terms of the Diamond Shamrock, Inc. Nonqualified 401(k) Plan (the "Plan") and the Trust Agreement dated April 8, 1988 between the Company and Key Trust Company of Ohio, N.A. and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Company to pay deferred compensation in the future in accordance with the Plan terms and which may be deemed securities. In connection with such filing, I have examined the Plan and such other documents, records and matters of law as I have deemed necessary for purposes of this opinion and based thereupon, I am of the opinion that the Deferred Compensation Obligations that may be issued in accordance with the provisions of the Plan, when issued, 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, or other laws of general applicability relating to or affecting enforcement of creditors' rights or by general equity principles. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement on Form S-8 for the Plan filed by the Company with the Securities and Exchange Commission to effect registration of such Deferred Compensation Obligations under the Securities Act of 1933, as amended. Very truly yours, /s/ Timothy J. Fretthold Timothy J. Fretthold TJF/lmk 3008.LW EX-15 4 November 30, 1995 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 November 14, 1995 (issued pursuant to the provisions of Statement on Auditing Standards No. 71) in the Registration Statement on Form S-8 to be filed on or about November 30, 1995. We are also aware of our responsibilities under the Securities Act of 1933. Yours very truly, /s/ PRICE WATERHOUSE LLP Price Waterhouse LLP LKW/hw W3020.LW EX-23.1 5 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 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. /s/ PRICE WATERHOUSE LLP PRICE WATERHOUSE LLP November 30, 1995 W3007.LW EX-24.1 6 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ R.R. HEMMINGHAUS R.R. HEMMINGHAUS Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ LAURO F. CAVAZOS LAURO F. CAVAZOS Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ R.C. BECKER R.C. BECKER Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ WILLIAM L. FISHER WILLIAM L. FISHER Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ GARY E. JOHNSON GARY E. JOHNSON Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s B. CHARLES AMES B. CHARLES AMES Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, her true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for her and in her name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as she might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ KATHERINE D. ORTEGA KATHERINE D. ORTEGA Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ E. GLENN BIGGS E. GLENN BIGGS Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ W. E. BRADFORD W. E. BRADFORD Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ BOB MARBUT BOB MARBUT Dated: November 17, 1995 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Timothy J. Fretthold, Jerry D. King, and Lisa K. Wortham, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of DIAMOND SHAMROCK, INC. (the "Corporation"), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, 100,000 shares of Common Stock (and associated stock purchase rights) and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the Corporation's 401(k) Nonqualified Plan, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ W. H. CLARK W. H. CLARK Dated: November 17, 1995 W3011.LW EX-24.2 7 CERTIFICATE DIAMOND SHAMROCK, INC. I, JERRY D. KING, Secretary of DIAMOND SHAMROCK, INC., a Delaware corporation, and custodian of the books and records of said corporation, do hereby certify that the following resolutions were duly adopted by the Board of Directors of said corporation on October 3, 1995, and that said resolutions are in full force in effect. RESOLVED that the Diamond Shamrock, Inc. Nonqualified 401(k) Plan in the form presented to the Board of Directors of the Corporation be, and hereby is, adopted by the Corporation. RESOLVED that the appropriate officers of the Corporation be, and they hereby are, authorized to execute such plan and any amendments subject to such changes as may in their or his judgment, or in the judgment of the Compensation Committee, be necessary, appropriate or desirable, and any such action taken or any document executed and delivered by them or any of them shall be conclusive evidence of their or his authority to take, execute and deliver the same. RESOLVED that the appropriate officers of the Corporation be, and hereby they are, authorized and directed on behalf of the Corporation to prepare, execute and file with the Securities and Exchange Commission a Registration Statement on Form S-8 for the registration under the Securities Act of 1933, as amended (the "1933 Act"), of 100,000 shares of Common Stock (the "Shares") of the Corporation for issuance pursuant to the Nonqualified 401(k) Plan, and $3,000,000 of Deferred Compensation Obligations which represent unsecured obligations of the Corporation to pay deferred compensation in the future in accordance with the terms of the plan, and to file such amendments thereto as may, in the opinion of the officers executing the same on behalf of the Corporation, be necessary or proper to effect the registration of such Shares and Deferred Compensation Obligations under the 1933 Act, and to cause to be filed with the Securities and Exchange Commission all such post-effective amendments, additional papers, prospectuses, undertakings and documents as may be necessary or advisable in order to make such registration statement effective, to comply with the provisions of the 1933 Act, and to comply with any undertakings of the Corporation made in connection with such registration. RESOLVED that Timothy J. Fretthold and Jerry D. King, or either of them, be and hereby are designated to act on behalf of the Corporation as its agent or agents for service in respect of matters concerning the Registration Statements relating to the Shares with the powers enumerated in Rule 487 of the Rules and Regulations of the Securities and Exchange Commission. RESOLVED that the name of any officer or director of the Corporation signing the Registration Statements (and any amendments thereto) on its behalf may be signed pursuant to a power of attorney duly executed and delivered by the officer or director whose name is so signed. RESOLVED that the proper officers and employees of the Corporation be, and hereby they are, authorized and directed in the name and on behalf of the Corporation to take any and all action which they in their discretion may deem necessary or advisable in order to register or qualify the Shares and the Deferred Compensation Obligations, or any number thereof, issued pursuant to such Nonqualified 401(k) Plan, for issuance and sale under the securities laws of any of the states of the United States of America, or to take any and all other action which they in their discretion may deem necessary or advisable in order to register or license the Corporation as a dealer or broker in securities in any such state or to secure permission for the Corporation to issue such Shares and Deferred Compensation Obligations pursuant to such Nonqualified 401(k) Plan and in connection with such applications, registrations or qualifications to execute, acknowledge, verify, deliver, file and publish all such applications, reports, issuance, covenants, certified copies of resolution, powers of attorney, consents to service of process and any and all other papers or instruments as may be required under the laws of any such state, and to take any and all other action which they deem necessary or advisable in order to maintain such registration or qualification for as long as they deem to be in the best interest of the Corporation or in order to cancel such registration or qualification if and when they deem such cancellation to be in the best interest of the Corporation. RESOLVED that if, in any state in which any application, statement, notice or other instrument is required for the purpose of registering or qualifying the Shares and the Deferred Compensation Obligations issued pursuant to the Nonqualified 401(k) Plan for offering or sale or to register or license the Corporation as a dealer or broker in securities, a prescribed form of resolution or resolutions relating to such offering or sale or to any application, statement, notice or other instrument in connection is required, each such preamble and resolution shall be deemed to have been, and hereby is, adopted by this Board of Directors and the Secretary of the Corporation is hereby authorized and directed to certify any such preamble or resolution as though the same were now presented to this meeting, all such preambles and resolutions to be inserted in the Minute Book following the minutes of this meeting. RESOLVED that the appropriate officers of the Corporation be, and hereby they are, authorized and directed to prepare, execute and file with the New York Stock Exchange listing applications, listing fee agreements and listing agreements with respect to the listing on such exchange, upon official notice of issuance of the Shares issued from time to time under and pursuant to the provisions of such Nonqualified 401(k) Plan, and the proper officers of the Corporation be, and hereby they are, authorized and empowered to cause such listing applications to be amended and modified to the extent that the officers executing the same may deem necessary or proper and to cause to be filed with such exchange, all additional papers, undertakings, agreements and documents as may be necessary or advisable in order to cause such exchange to list those Shares. RESOLVED that Timothy J. Fretthold and Jerry D. King, and either of them be, and hereby they are, authorized to appear if necessary or advisable before officials of such exchange, with authority to make changes in the listing applications relating to the Shares to be issued under and pursuant to the provisions of such Nonqualified 401(k) Plan and take such steps as may be necessary to effect the listing of the Shares on such exchange. RESOLVED that the Corporation's Transfer Agent be, and hereby it is duly authorized to either (a) issue or (b) transfer from the Corporation's treasury as may be authorized in the manner provided below, and that the Corporation's Registrar be and hereby it is duly authorized to register certificates of Common Stock of this Corporation issued or transferred from the Corporation's treasury pursuant to the terms of such Nonqualified 401(k) Plan, upon written certification and authorization by the Chief Executive Officer, any Vice President or the Secretary of the Corporation that Shares were issued thereunder to each director or employee designated in such certification, that each such director or employee is entitled to receive the number of shares specified in such certification and that shares of Common Stock therefore are to be either issued or transferred from the Corporation's treasury, as the case may be. RESOLVED that the appropriate officers and employees of the Corporation be, and hereby they are, authorized and directed to take any and all further action and do any and all other things that may be necessary, proper or advisable to effectuate the foregoing resolutions. RESOLVED that such further specific resolutions as may be required in connection with the approval of the Nonqualified 401(k) Plan as contemplated above be, and hereby they are, deemed adopted and such resolutions may be certified by the Secretary of the Corporation as having been adopted by the Board of Directors provided that a copy thereof is inserted in the Minute Book following the minutes of this meeting. IN WITNESS WHEREOF, I have set my hand and the seal of this corporation upon this 27th day of November, 1995. /s/ Jerry D. King w3006.lw -----END PRIVACY-ENHANCED MESSAGE-----