-----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, WLqB5TkzcKbLcoXIAZCuvHuL5b1/H0sEA3ijs1syGSK/UV328bmnYMSq3590Qb3j zL/8rHd9pVZ9Dsv0Sl5bmw== 0000810316-96-000027.txt : 19960522 0000810316-96-000027.hdr.sgml : 19960522 ACCESSION NUMBER: 0000810316-96-000027 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 11 FILED AS OF DATE: 19960521 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: 333-04157 FILM NUMBER: 96570473 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 20, 1996 REGISTRATION NO. 33- Post-Effective Amendment No. 1 to REGISTRATION NO. 33-59451 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] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act Registration Statement number of the earlier effective Registration Statement for the same offering.[ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. [ ] CALCULATION OF REGISTRATION FEE Title of Each Class Amount to Proposed Maximum Proposed Maximum Amount of Securities to be be Offering Price Aggregate Offering Registration Registered(1) Registered Per Share Price (4) (5) Fee (2)(3)(4) Debt Securities Preferred Stock, Par value $.01 Common Stock, Par value $1.00(6) Securities Warrants Total $100,000,000 - $100,000,000 $34,482.76 (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 seperately 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 foriegn 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 $150,000,000 of unsold securities covered by Registration Statement No. 33-59451 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 20, 1996 PROSPECTUS $250,000,000 DIAMOND SHAMROCK, INC. Debt Securities Preferred Stock Common Stock Securities Warrants Diamond Shamrock, Inc. (the "Company") may, from time to time, offer or solicit offers to purchase its (i) secured or unsecured senior debt securities, (the "Debt Securities"); (ii) warrants to purchase the Debt Securities (the "Debt Warrants"); (iii) shares of preferred stock, par value $0.01 per share (the "Preferred Stock"); (iv) warrants to purchase shares of Preferred Stock ("Preferred Stock Warrants"); (v) shares of common stock, par value $0.01 per share (the "Common Stock"); and (vi) warrants to purchase shares of Common Stock ("Common Stock Warrants"), having an aggregate initial public offering price not to exceed $250,000,000 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, including, 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; (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 number of shares and the initial public offering price; (iv) in the case of Securities Warrants, the designation and the number of securities issuable upon their exercise, the duration, offering price, exercise price, number 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 , 1996 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 Seven World Trade Center, Suite 1300, New York, New York 10048 and Citicorp 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, 1995 (the "1995 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, 1996, and Current Report on Form 8-K/A, dated December 14, 1995 and filed with the Commission on February 14, 1996. 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, and the largest convenience store operator and retail marketer of gasoline in the state of Texas. Its principal activities consist of crude oil refining, wholesale marketing of petroleum products, and retail marketing of petroleum products and 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 for the three-month periods ended March 31, 1996 and 1995 and for each of the years in the five-year period ended December 31, 1995. For purposes of computing such ratios, 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, 1996 1995 1995 1994 1993 1992 1991 Ratio of Earnings to Fixed Charges 1.5 1.5 2.0 3.2 2.0 1.7 2.1 Ratio of Earnings to Combined Fixed Charges and Preferred Stock Dividends 1.4 1.4 1.9 2.9 1.8 1.7 2.1 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. The Indenture does not contain provisions permitting the holders of the Debt Securities to require prepayment in the event of a change in the management or control of the Company, or in the event the Company enters into one or more highly leveraged transactions, nor are any such events deemed to be events of default under the terms of the Indenture. Should the terms of any note representing any Offered Debt Securities contain such provisions, such provisions will be described in the applicable Prospectus Supplement. 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, a copy of which has been filed as an exhibit to the Registration Statement of which this Prospectus is a part. 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, 1996, 1,725,000 shares of the Company's 5% Cumulative Convertible Preferred Stock and 29,258,874 shares of Common Stock were issued, and no 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, 1,336,029 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. See "-Preferred Stock - -- Preferred Stock Purchase Rights." An additional 3,254,716 shares of Common Stock are reserved for issuance upon conversion of the Company's outstanding 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 Stock"). Each share of 5% Preferred Stock has a liquidation preference of $50.00 per share, plus accrued and unpaid dividends thereon. Cash dividends on the 5% Preferred Stock 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 Stock are convertible at any time 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 Stock, subject to adjustment in certain circumstances. The shares of 5% Preferred Stock 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 Stock 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 Stock. 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 Stock will be redeemable for cash at a redemption price equivalent to $50 per share, plus accrued and unpaid dividends. Shares of 5% Preferred Stock 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. 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. See "-Preferred Stock." Under the Certificate, holders of Common Stock are entitled to cumulative voting rights in certain limited circumstances in which the Company becomes aware that a stockholder 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 Common Stock are not otherwise entitled to cumulative voting rights. Under cumulative voting, a stockholder 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 stockholder 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 April 30, 1996, Mr. Fretthold beneficially owned 56,588 shares of Common Stock of the Company, including 29,464 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 1995 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, 1996 and 1995, 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 10, 1996, 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 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 Securities Act. The consolidated financial statements of National Convenience Stores Incorporated for the year ended June 30, 1995 incorporated by reference in this Prospectus from the Company's Current Report on Form 8-K/A (dated December 14, 1995 and filed with the Commission on February 14, 1996) have been audited by Deloitte & Touche LLP, independent auditors, as stated in their report dated September 19, 1995 (insofar as it relates to the consolidated financial statements of National Convenience Stores Incorporated for the year ended June 30, 1995), which is incorporated herein by reference, and such consolidated financial statements have been so incorporated in reliance upon the report of such firm given upon their authority as experts in accounting and auditing. 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 $ 34,483 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 4,017 Total $ 95,000 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 -- Amendment No. 3 to the Agency Agreement. *1.5 -- Underwriting Agreement Standard Provisions(filed as Exhibit 1.5 to the Registration Statement No. 33-59451 ("Registration Statement 33-59451") and incorporated herein by reference). 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 the Registration Statement, File No. 33-67556 ("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 Offered Securities registered under Registration Statement No. 33-59451 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, 1996 and 1995 and for each of the five years ended December 31, 1995. 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). 23.3 -- Consent of Deloitte & Touche, L.L.P. *24.1 -- Powers of Attorney of directors and officers of the Company relating to Registration Statement No. 33-59451. *24.2 -- Power of Attorney of the Company relating to Registration Statement 33-59451. *24.3 -- Certified copy of resolutions of the Board of Directors of the Company relating to Offered Securities registered under Registration Statement 33-59451. 24.4 -- Powers 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 copies of resolutions of the Board of Directors of the Company relating to the Offered Securities registered under this registration statement 25.1 -- Statement as to the eligibility of the Trustee under the Indenture. * Previously filed as part of Registration Statement No. 33-59451. ** 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. 33-59451: (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. 33-59451 (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. 33-59451, 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. 33-59451 or any material change to such information in this Registration Statement and/or Registration Statement No. 33-59451; (2) That, for the purpose of determining any liability under the Securities 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; (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 Exchange Act that is incorporated by reference in this Registration Statement and/or Registration Statement No. 33-59451 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. 33-59451 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 contemporaniously filed herewith in the City of San Antonio, State of Texas on May 20, 1996. DIAMOND SHAMROCK, INC. By /S/ TIMOTHY J. FRETTHOLD Timothy J. Fretthold Attorney-in-Fact Pursuant to the requirements of the Securities Act, this Registration Statement and Post-Effective Amendment to Registration Statement No. 33-59451 has been signed on May 20, 1996 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. /S/ Timothy J. Fretthold Timothy J. Fretthold Attorney-in-Fact INDEX TO EXHIBITS Exhibit Number Exhibit 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 -- Amendment No. 3 to the Agency Agreement. *1.5 -- Underwriting Agreement Standard Provisions(filed as Exhibit 1.5 to the Registration Statement No. 33-59451 ("Registration Statement 33-59451") and incorporated herein by reference). 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 the Registration Statement, File No. 33-67556 ("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 Offered Securities registered under Registration Statement No. 33-59451 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, 1996 and 1995 and for each of the five years ended December 31, 1995. 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). 23.3 -- Consent of Deloitte & Touche, L.L.P. *24.1 -- Powers of Attorney of directors and officers of the Company relating to Registration Statement No. 33-59451. *24.2 -- Power of Attorney of the Company relating to Registration Statement 33-59451. *24.3 -- Certified copy of resolutions of the Board of Directors of the Company relating to Offered Securities registered under Registration Statement 33-59451. 24.4 -- Powers 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 copies of resolutions of the Board of Directors of the Company relating to the Offered Securities registered under this registration statement 25.1 -- Statement as to the eligibility of the Trustee under the Indenture. * Previously filed as part of Registration Statement No. 33-59451. ** To be filed as an Exhibit to Form 8-K in reference to the specific offering of Securities Warrants to which it relates. W2961.TW EX-1.4 2 $150,000,000 DIAMOND SHAMROCK, INC. Medium-Term Notes, Series B AMENDMENT NO. 3 TO AGENCY AGREEMENT July 19, 1995 Lehman Brothers Inc. NatWest Capital Markets Limited American Express Tower 175 Water Street World Financial Center New York, New York 10038 New York, New York 10285 CS First Boston Corporation Chemical Securities Inc. Park Avenue Plaza 270 Park Avenue New York, New York 10055 New York, New York 10017 Merrill Lynch & Co. Merrill Lynch, Pierce, Fenner & Smith Incorporated North Tower World Financial Center New York, New York 10281 Dear Sirs: Diamond Shamrock, Inc. (formerly known as Diamond Shamrock R&M, Inc.), a Delaware corporation (the "Company"), makes reference to the Agency Agreement dated January 25, 1990 (the "Agency Agreement"), as amended by Amendment No. 1 to the Agency Agreement dated May 18, 1990 and Amendment No. 2 to the Agency Agreement dated December 9, 1991, among the Company and Lehman Brothers, Inc., CS First Boston Corporation, and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated (individually, along with NatWest Capital Markets Limited and Chemical Securities Inc., an "Agent" and, collectively, along with NatWest Capital Markets Limited and Chemical Securities Inc., the "Agents") and confirms its agreement with each of you to amend the Agency Agreement as set forth herein. 1. Medium-Term Notes, Series B. The term "Medium-Term Notes, Series A" is hereby deleted wherever it appears in the Agency Agreement and the Exhibits thereto and the term "Medium-Term Notes, Series B" is hereby substituted in lieu thereof. 2. Corporate Name Changes. The names "Diamond Shamrock R&M, Inc.", "Shearson Lehman Hutton Inc.", "Shearson Lehman Hutton Special Securities Incorporated" and "Merrill Lynch Capital Markets" are hereby deleted wherever they appear in the Agency Agreement and the Exhibits thereto and the names "Diamond Shamrock, Inc.", "Lehman Brothers Inc.", "Lehman Government Securities Inc." and "Merrill Lynch & Co.", respectively, are hereby substituted in lieu thereof. 3. Additional Agents. By execution hereof, the parties acknowlege that the Company has properly exercised its right under Section 2(a) of the Agency Agreement to appoint NatWest Capital Markets Limited ("NatWest") and Chemical Securities Inc. as Additional Agents under the Agency Agreement, and by execution hereof, NatWest and Chemical Securities Inc. acknowlege that they shall, from and after the date of this Amendment No. 3, be entitled to all of the rights and benefits, and be subject to all of the duties and obligations, of an Agent under the Agency Agreement. The parties also acknowlege that the Company has heretofor properly exercised its right under Section 2(a) of the Agency Agreement to appoint CS First Boston Corporation as an Additional Agent under the Agency Agreement effective as of December 9, 1991, and that as of that date CS First Boston Corporation became entitled to all of the rights and benefits, and subject to all of the duties and obligations, of an Agent under the Agency Agreement. 4. Section l(a). Section 1(a) of the Agency Agreement is hereby amended to read in full as follows: (a) General. A registration statement on Form S-3 (No. 33-59451) has been prepared and filed by the Company in conformity in all material respects with the requirements of the Securities Act of 1933 (the "Act") and the rules and regulations (the "Rules and Regulations") of the Securities and Exchange Commission (the "Commission") thereunder, and such Registration Statement has become effective under the Act. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). As used in this Agreement, (i) "Registration Statement" means such registration statement as it became effective under the Act and as from time to time further amended or supplemented thereafter; (ii) "Basic Prospectus" means the prospectus (including all documents incorporated therein by reference) included in the Registration Statement and (iii) "Prospectus" means the Basic Prospectus and any amendments or supplements relating to the Notes, as filed with the Commission pursuant to paragraph (b) of Rule 424 of the Rules and Regulations. The Commission has not issued any order preventing or suspending the use of the Prospectus. 5. Exhibit A (Schedule of Payments). Exhibit A to the Agency Agreement is hereby amended by deleting the last row of the chart set forth therein and by adding the following rows to such chart: 15 years to less than 20 years, .650% 20 years to 30 years .750% 6. Exhibit B (Administrative Procedures). Exhibit B to the Agency Agreement is hereby amended by: (a) Deleting the phrase "due from nine months to 15 years from date of issue" in the first sentence thereof and substituting, in lieu thereof, the phrase "due from nine months to 30 years from date of issue"; (b) Deleting the phrase "January 15 and July 15 of each year" in the first paragraph under the heading "Interest Payments" and substituting, in lieu thereof, the phrase "May 15 and November 15 of each year,(or such other dates provided in the applicable pricing supplement)(whether or not a Business Day)"; (c) Deleting the phrase "January 1 or July 1 (whether or not a Business Day)" in the second sentence of the third paragraph under the heading "Interest Payments" and substituting, in lieu thereof, the phrase "May 1 or November 1 (or such other dates provided in the applicable pricing supplement)(whether or not a Business Day)"; (d) Deleting "$1,000,000" wherever it appears from the paragraph relating to "Issuance" in the section entitled "Special Administrative Procedures For Book-Entry Notes", and substituting "$150,000,000" therefor; (e) Deleting "100,000,000" from paragraph B of the paragraph relating to "Settlement Procedures" in the section entitled Special Administrative Procedures For Book-Entry Notes", and substituting "$150,000,000" therefor, and deleting the text of paragraph I from such Section B and substituting "The Trustee will wire transfer funds which are transfered to the Trustee in accordance with Settlement Procedure F to the account maintained by Company at Chase Manhattan Bank, N.A., ABA Number 021000021, Account Number 9102575041, or to such other institution and account designated by Company in writing delivered to the Trustee at least five business days prior to the date of settlement"; (f) Amending the paragraph set out under the heading "Denominations" to read: "The Notes (other than Notes represented by Global Securities) will be issued and payable in U.S. dollars, and will be issued in denominations which are integral multiples of $1000"; and (g) Amending the paragraph set out in the section entitled "Special Administrative Proceedures For Book-Entry Notes" under the heading "Denominations" so that the first sentence of such paragraph reads "Book-Entry Notes will be issued in principal amounts which are integral multiples of $1000". 7. Certain Agreements of NatWest. In consideration of the designation of NatWest as an Additional Agent under the Agency Agreement, NatWest hereby agrees that, unless specifically permitted by applicable law, it will not offer or sell Notes within the United States of America, its territories or possesions, or to persons who are citizens thereof or residents therein, provided that NatWest Securities Corporation, an affiliate of NatWest and a United States broker-dealer, may act as a selling broker with respect to the Notes, acting as agent for purchasers within the United States. NatWest further agrees that it will not offer or sell prior to the date six months after their date of issue any Notes having an original maturity of one year or greater to persons in the United Kingdom, except to persons whose ordinary activities involve them in acquiring, holding, managing, or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; that it will comply with all applicable provisions of the Financial Services Act 1986 with respect to anything done by it in relation to the Notes in, from, or otherwise involving the United Kingdom; and that it will issue or pass on in the United Kingdom any document received by it in connection with the issue of the Notes only to a person who is of a kind described in Article 11(3) of the Financial services Act 1986 (Investment Advertisements) (Exemptions) Order 1995 or is a person to whom such document may otherwise lawfully be issued or passed on. 8. Delivery of Documents. The documents required to be delivered pursuant to Section 6 of the Agency Agreement shall be delivered at the offices of Simpson Thacher & Bartlett, 425 Lexington Avenue, New York, New York 10017, not later than 10:00 a.m., New York City time, on the date of this Amendment No. 3 or at such later time as may be mutually agreed upon by the Company and the Agents, which in no event shall be later than the time at which the Agents recommence solicitation of offers to purchase Notes under the Agency Agreement. 9. Pricing Supplements. The parties hereto hereby agree that in connection with the sale of any Notes, the Pricing Supplements referred to in the Procedures (as defined in the Agency Agreement) shall be substantially in the form of Exhibit A hereto. This Amendment No. 3 shall take effect on and as of the date first above written. Except as amended hereby, all other terms and conditions of the Agency Agreement shall continue in term full force and effect. THIS AMENDMENT NO. 3 SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. If the foregoing correctly sets forth our agreement, please indicate your acceptance hereof in the space provided for that purpose below. Very truly yours, DIAMOND SHAMROCK, INC. By:/s/ R.C. BECKER R. C. Becker, Vice President and Treasurer CONFIRMED AND ACCEPTED, as of the date first above written: LEHMAN BROTHERS INC. By: /s/ JOHN F. KLAGHLAN John F. Klaghlan Authorized Signatory CS FIRST BOSTON CORPORATION By: /s/ RICHARD W. KURZ Richard W. Kurz Authorized Signatory MERRILL LYNCH & CO. MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED By: /s/ ROBERT J. LITTLE Robert J. Little Authorized Signatory NATWEST CAPITAL MARKETS LIMITED By: /s/ KEN BAUGH Ken Baugh Authorized Signatory CHEMICAL SECURITIES INC. By: /s/ PETER MADONIA Peter Madonia Authorized Signatory W2966.TW EXHIBIT A Forms of Pricing Supplements Rule 424(b)( ) Registration Statement No. ____________ PRICING SUPPLEMENT NO. _______________ Dated _____________, to Prospectus, dated _______________, and Prospectus Supplement dated __________________ DIAMOND SHAMROCK, INC. Medium-Term Notes, Series B (Fixed Rate) Due from Nine Months to 30 Years from Date of Issue Interest Payable each ______________ and _______________ and at Maturity Principal Amount: _________________ Issue Price: ___________________ Agent's Commission: _______________ Trade Date: ____________________ Original Issue Date: ______________ Net Proceeds to Issuer: ______________ Interest Rate Per Annum: _____________ Overdue Rate: _________________ Stated Maturity: ________________ Repurchase Price (for Discount Securities): _______________ Redemption Information: ______________ Currency or Currency Units: ______________ (if other than U.S. dollars, see attached) Form: [ ] Book-Entry [ ] Certificated [If applicable: [name of Agent] has purchased the Notes offered hereby as principal in this transaction for resale to one or more investors or to another broker-dealer (acting as principal for purposes of resale) at varying prices related to prevailing market prices at the time of resale as determined by [name of Agent).] The aggregate principal amount of this offering is U.S. $____________ (which, if the securities offered hereby are denominated in a currency or currency unit other than U.S. dollars, is the equivalent, in the currency or currency units set forth herein, of the principal amount set forth herein at the Exchange Rate set forth herein) and relates only to Pricing Supplement No. ____________. Medium-Term Notes, Series B, may be issued by the Company in an aggregate principal amount of up to U.S. $150,000,000 or the equivalent in foreign currency or foreign currency units set forth herein, of the principal amount set forth herein at the Exchange Rate set forth herein) and relates only to Pricing Supplement No. _______________. Medium-Term Notes, Series B, may be issued by the Company in an aggregate principal amount of up to U.S. $150,000,000 or the equivalent in foreign currency or foreign currency units, less an amount equal to the aggregate proceeds to the Company from the sale of any other Debt Securities, including other series of medium-term notes, and, to date, including this offering, an aggregate of U.S. $_______________, or the equivalent in foreign currency units of Medium-Term Notes, Series B, and all other Debt Securities, has been issued. Rule 424(b)( ) Registration Statement No. ___________ PRICING SUPPLEMENT NO. _______________ Dated _______________, to Prospectus, dated ____________________, and Prospectus Supplement dated __________________________ Diamond Shamrock, Inc. Medium-Term Notes, Series B (Floating Rate) Due from Nine Months to 30 Years from Date of Issue Principal Amount: Currency or Currency Units: (if other than U.S. dollars, see attached) Issue Price: Calculation Agent: Agent's Commission: ______% Interest Rate Basis: Initial Interest Rate: _________% ( ) Treasury Rate Trade Date: ___________________ ( ) LIBOR Original Issue Date: ___________ ( ) Commercial Paper Rate Net Proceeds to Issuer: $__________ ( ) Federal Funds Effective Rate Stated Maturity: _______________ ( ) Prime Rate Maximum Interest Rate: _________% ( ) CD Rate Minimum Interest Rate: _________% ( ) Other: (see attached) Spread: (+ -) __________________ Overdue Rate: _________% Index Maturity: _________________ Interest Rate Reset Period: _________________________________ daily, weekly, monthly, quarterly, semi-annually, or annually Interest Payment Dates: Regular Record Dates: Interest Determination Dates: Repurchase Price (for Discount Securities): Redemption Information: Form: [ ] Book-Entry [ ] Certificated [If applicable: [name of Agent] has purchased the Notes offered hereby as principal in this transaction for resale to one or more investors or to another broker-dealer (acting as principal for purposes of resale) at varying prices related to prevailing market prices at the time of resale as determined by [name of Agent].] The aggregate principal amount of this offering is U.S. $______________ (which, if the securities offered hereby are denominated in a currency or currency unit other than U.S. dollars, is the equivalent, in the currency or currency units set forth herein, of the principal amount set forth herein at the Exchange Rate set forth herein) and relates only to Pricing Supplement No. _______________. Medium-Term Notes, Series B, may be issued by the Company in an aggregate principal amount of up to U.S. $150,000,000 or the equivalent in foreign currency or foreign currency units, less an amount equal to the aggregate proceeds to the Company from the sale of any other Debt Securities, including other series of medium-term notes, and, to date, including this offering, an aggregate of U.S. $_______________, or the equivalent in foreign currency units of Medium-Term Notes, Series B, and all other Debt Securities, has been issued. EX-5.2 3 May 17, 1996 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 $100,000,000 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 February 6, 1996. 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\TW:es W2906.TW EX-12.1 4 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, 1996 1995 1995 1994 1993 1992 1991 Income from continuing operations, before income taxes $12.4 $ 9.1 $73.7 $125.8 $57.5 $44.0 $ 57.7 Fixed Charges: Interest Expense 18.5 11.4 47.4 43.3 40.6 40.5 37.7 Capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5 One-third of rental expense(1) 4.6 2.5 11.2 9.7 7.3 7.6 8.2 Dividend requirement on pre- ferred stock(2) 1.6 1.5 5.8 6.0 3.4 - - Total Fixed Charges 25.9 16.5 71.2 61.3 57.4 54.2 48.4 Less capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5 Less dividend requirement on preferred stock(2) 1.6 1.5 5.8 6.0 3.4 - - Adjustment to income 23.1 13.9 58.6 53.0 47.9 8.1 45.9 Income, as adjusted $35.5 $23.0 $132.3 $178.8 $105.4 $92.1 $103.6 Ratio of Earnings to Fixed Charges 1.4 1.4 1.9 2.9 1.8 1.7 2.1
(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
Three Months Ended Mar. 31, Year Ended December 31, 1996 1995 1995 1994 1993 1992 1991 Income from continuing operations, before income taxes $12.4 $ 9.1 $ 73.7 $125.8 $ 57.5 $44.0 $ 57.7 Fixed Charges: Interest Expense 18.5 11.4 47.4 43.3 40.6 40.5 37.7 Capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5 One-third of rental expense(1) 4.6 2.5 11.2 9.7 7.3 7.6 8.2 Total Fixed Charges 24.3 15.0 65.4 55.3 54.0 54.2 48.4 Less capitalized interest 1.2 1.1 6.8 2.3 6.1 6.1 2.5 Adjustment to income 23.1 13.9 58.6 53.0 47.9 48.1 45.9 Income, as adjusted $35.5 $23.0 $132.3 $178.8 $105.4 $92.1 $103.6 Ratio of Earnings to Fixed Charges 1.5 1.5 2.0 3.2 2.0 1.7 2.1
(1) The amount deemed by the Company to represent the interest portion of such expense. W3138.TW EX-15.1 5 EXHIBIT 15.1 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 23, 1996, which is attached as Exhibit 13.3 to Diamond Shamrock, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1995. 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 17, 1996 W3134.TW EX-23.1 6 EXHIBIT 23.1 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 10, 1996 (issued pursuant to the provisions of Statement on Auditing Standards No. 71) in the Prospectus constituting part of its Registration Statement on Form S-3 to be filed on or about May 20, 1996. 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 17, 1996 EX-23.3 7 Exhibit 23.3 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Diamond Shamrock, Inc. on Form S-3 and in Post-Effective Amendment No. 1 to Registration Statement No. 33-59451 of Diamond Shamrock, Inc. on Form S-3 of our report dated September 19, 1995 (insofar as it relates to the consolidated financial statements for the year ended June 30, 1995), appearing in the Annual Report on Form 10-K of National Convenience Stores Incorporated for the year ended June 30, 1995. We also consent to the reference to us under the heading "Experts" in the Prospectus, which is part of such Registration Statements. /s/ DELOITTE & TOUCHE LLP DELOITTE & TOUCHE LLP Houston, Texas May 17, 1996 W3141.TW EX-24.4 8 Exhibit 24.4 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/ KATHERIINE 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: May 13, 1996 W2773.TW EX-24.5 9 Exhibit 24.5 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: May 13, 1996 W2772.TW EX-24.6 10 Exhibit 24.6 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 $200,000,000; FURTHER RESOLVED that Timothy J. Fretthold, Todd Walker, Robert A. Profusek, James E. O'Bannon, and Wendy Dann Adato be, and each of them hereby is, appointed as attorney-in-fact for the Corporation and the Trust, 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 and the Trustees be, and each of them hereby is, authorized, on behalf of the Corporation and the Trust, to execute such documents as such officers deem to be appropriate to evidence such appointment; W3140.tw CERTIFICATE OF SECRETARY DIAMOND SHAMROCK, INC. I, Harold D. Mallory, Secretary of Diamond Shamrock, Inc., a Delaware corporation (the "Company"), by execution of this Certificate do hereby certify that the attached Resolutions are true and correct copies of the Resolutions approved at a Board of Directors meeting held on February 6, 1996. IN WITNESS WHEREOF, I have hereunto signed my name this 16th day of May, 1996. /s/ HAROLD D. MALLORY Harold D. Mallory, Secretary STATE OF TEXAS )( COUNTY OF BEXAR )( This instrument was acknowledged before me on this the ______ day of May, 1996, by Harold D. Mallory, Secretary of Diamond Shamrock, Inc., on behalf of said corporation. /s/ ESTHER SALINAS Notary Public, State of Texas EX-25.1 11 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 13th day of May, 1996. The First National Bank of Chicago, Trustee By /s/ R. D. Manella R. D. Manella Vice President * 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 13, 1996 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 EXHIBIT 7 Legal Title of Bank: The First National Bank of Chicago Call Date: 12/31/95 Address: One First National Plaza, Suite 0460 ST-BK: City, State Zip: Chicago, IL 60670-0460 17-1630 FDIC Certificate No.: 0/3/6/1/8 FFIEC 031 Page RC-1 Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 1995 All schedules are to be reported in thousands of dollars. Unless otherwise report the amount outstanding of the last business day of the quarter. Schedule RC--Balance Sheet
Dollar Amounts in C400 <- Thousands RCFD BIL MIL THOU ASSETS 1. Cash and balances due from deposi- tory institu- tions (from Schedule RC- A): a. Noninte- rest- bearing balances and cur- rency and coin(1) 0081 4,003,995 1.a. b. Interest- bearing balances(2) 0071 9,240,284 1.b. 2. Securities a. Held-to- maturity securities (from RC-B, column A) 1754 0 2.a. b. Available- for-sale securities (from Sche- dule RC-B, column D) 1773 827,134 2.b. 3. Federal funds sold and securi- ties 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 3,287,844 3.a. b. Securities purchased under agree- ments to re- sell 0277 612,400 3.b. 4. Loans and lease financing receivables: a. Loans and leases, net of unearned income (from Sche- dule RC-C) RCFD 2122 16,463,126 4.a. b. LESS: Allowance for loan and lease losses RCFD 3123 353,777 4.b. c. LESS: Allo- cated trans- fer risk reserve RCFD 3128 0 4.c. d. Loans and leases, net of unearned income, allowance, and reserve (item 4.a minus 4.b and 4.c) 2125 16,109,349 4.d. 5. Assets held in trading accounts 3545 12,379,396 5. 6. Premises and fixed assets (including capitalized leases) 2145 591,753 6. 7. Other real estate owned (from Schedule RC-M) 2150 8,796 7. 8. Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) 2130 40,560 8. 9. Customers' liabi- lity to this bank on acceptances outstanding 2155 524,918 9. 10. Intangible as- sets (from Schedule RC-M) 2143 101,011 10. 11. Other assets (from Schedule RC-F) 2160 1,633,056 11. 12. Total assets (sum of items 1 through 11) 2170 49,360,496 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: 12/31/95 Address: One First National Plaza, Suite 0460 ST-BK: City, State Zip: Chicago, IL 60670-0460 17-1630 FDIC Certificate No.: 0/3/6/1/8 FFIEC 031 Page RC-2 LIABILITIES
Dollar Amounts in Thousands Bil Mil Thou 13. Deposits: a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part 1) RCON 2200 15,174,243 13.a. (1) Nonin- terest bearing (1) RCON 6631 6,217,164 13.a.(1) (2) Inte- rest- bearing RCON 6636 8,957,079 13.a.(2) b. In foreign offices, Edge and Agreement subsidia- ries, and IBFs (from Sche- dule RC-E, part II) RCFN 2200 14,435,503 13.b. (1) Nonin- terest bearing RCFN 6631 625,206 13.b.(1) (2) Inte- rest- bear- ing RCFN 6636 13,810,297 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 pur- chased RCFD 0278 2,449,282 14.a. b. Securities sold under agreements to repur- chase RCFD 0279 880,215 14.b. 15. a. Demand notes issued to the U.S. Treasury RCON 2840 93,942 15.a. b. Trading Liabilities RCFD 3548 7,523,265 15.b. 16. Other borrowed money: a. With origin- al maturity of one year or less RCFD 2332 1,897,370 16.a. b. With origin- al maturity of more than one year RCFD 2333 383,807 16.b. 17. Mortgage indebt- edness and obligations under capita- lized leases RCFD 2910 280,522 17. 18. Bank's liabi- lity on accep- tance executed and outstanding RCFD 2920 524,918 18. 19. Subordinated notes and debentures RCFD 3200 1,225,000 19. 20. Other liabili- ties (from Schedule RC-G) RCFD 2930 1,444,364 20. 21. Total liabili- ties (sum of items 13 through 20) RCFD 2948 46,312,431 21. 22. Limited-Life preferred stock and related surplus RCFD 3282 0 22. EQUITY CAPITAL 23. Perpetual pre- ferred stock and related surplus RCFD 3838 0 23. 24. Common stock RCFD 3230 200,858 24. 25. Surplus (ex- clude all surplus re- lated to pre- ferred stock) RCFD 3839 2,320,126 25. 26.a.Undivided pro- fits and capital reserves RCFD 3632 519,849 26.a. b.Net unrealized holding gains (losses) on available-for- sale securities RCFD 8434 7,315 26.b. 27. Cumulative foreign currency translation ad- justments RCFD 3284 (83) 27. 28. Total equity capital (sum of items 23 through 27) RCFD 3210 3,048,065 28. 29. Total liabili- ties, limited- life preferred stock, and equity capital (sum of items 21, 22, and 28) RCFD 3300 49,360,496 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 auditors as of any date during 1993.............RCFD 6724 N/A M.1. 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 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. -----END PRIVACY-ENHANCED MESSAGE-----