-----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, MTlc9bjm19Kj5OYFrj/9Gu0vJauhBzGzJ0RL4gpPNB/yoz89vgcmDDe4lAebBvDE vQbbla+oOKZGlF0oiCQOtw== /in/edgar/work/0000887207-00-000034/0000887207-00-000034.txt : 20001006 0000887207-00-000034.hdr.sgml : 20001006 ACCESSION NUMBER: 0000887207-00-000034 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20001005 EFFECTIVENESS DATE: 20001005 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ULTRAMAR DIAMOND SHAMROCK CORP CENTRAL INDEX KEY: 0000887207 STANDARD INDUSTRIAL CLASSIFICATION: [2911 ] IRS NUMBER: 133663331 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-47398 FILM NUMBER: 735443 BUSINESS ADDRESS: STREET 1: 6000 N. LOOP 1604 W. STREET 2: P O BOX 696000 CITY: SAN ANTONIO STATE: TX ZIP: 78249-1112 BUSINESS PHONE: 2105922000 MAIL ADDRESS: STREET 1: P O BOX 696000 STREET 2: THIRD FLOOR CITY: SAN ANTONIO STATE: TX ZIP: 78269-6000 FORMER COMPANY: FORMER CONFORMED NAME: ULTRAMAR CORP /DE DATE OF NAME CHANGE: 19930328 S-8 1 0001.txt NON-EMPLOYEE DIRECTOR EQUITY PLAN S-8 As filed with the Securities and Exchange Commission October 5, 2000 Registration No. 333-27697 SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 --------------------------- POST-EFFECTIVE AMENDMENT NO. 1 TO FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ULTRAMAR DIAMOND SHAMROCK CORPORATION (Exact Name of Registrant as Specified in Charter) Delaware 13-3663331 (State of (IRS Employer Incorporation) Identification No.) 6000 North Loop 1604 West 78249-1112 (Address of Principal Executive (Zip Code) Offices) ULTRAMAR DIAMOND SHAMROCK CORPORATION NON-EMPLOYEE DIRECTOR EQUITY PLAN (Full title of the Plan) Timothy J. Fretthold, Esq. Executive Vice President, Chief Administrative and Legal Officer Ultramar Diamond Shamrock Corporation 6000 North Loop 1604 West San Antonio, Texas 78249-1112 (Name and Address of Agent for Service) (210) 592-2000 (Telephone Number, Including Area Code of Agent for Service) In addition, pursuant to Rule 416(c) under the Securities Act of 1933, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the employee benefit plan(s) described herein.
CALCULATION OF REGISTRATION FEE - ----------------------- --------------------- -------------------- ----------------------- ------------------------- Title of Securities Amount to be Proposed Maximum Proposed Maximum Amount of Registration to be Registered (1) Registered Offering Price Per Offering Fee (2) Share (2) ---------------------- Price (2) - ----------------------- --------------------- -------------------- ----------------------- ------------------------- - ----------------------- --------------------- -------------------- ----------------------- ------------------------- Common Stock, par 250,000 $25.03 $6,257,813 $401.00 value $.01 per share - ----------------------- --------------------- -------------------- ----------------------- -------------------------
(1) Includes associated rights to purchase Ultramar Diamond Shamrock Corporation common stock exercisable pursuant to the Rights Agreement filed as Exhibit 4.2 hereto. (2) Estimated solely for the purpose of computing the registration fee in accordance with Rule 457 (h) and Rule 457 (c), based on the market price of common stock of Ultramar Diamond Shamrock Corporation (the "Company") of $25.03, per share, which is the average of the high and low sale price thereof on the Composite Tape of the New York Stock Exchange on September 26, 2000. PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT Item 3. Incorporation of Documents by Reference. The following documents filed with the Securities and Exchange Commission (the "Commission") by the Company are incorporated herein by reference: (a) The Company's Registration Statement 333-27697 on Form S-8, filed with the Commission on May 23, 1997; (b) The Company's Annual Report on Form 10-K for the fiscal year ended December 31, 1999, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (c) The Company's Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2000 and on Form 10-Q/A for the fiscal quarter ended June 30, 2000; and (d) The Company's Current Report on Form 8-K dated August 31, 2000; All documents filed by the Company pursuant to Sections 13 (a), 13 (c), 14, or 15(d) of the 1934 Act subsequent to the filing of this Form S-8/A Registration Statement (the "Registration Statement") and prior to the filing of a post-effective amendment to the Registration Statement that indicates that all securities offered have been sold or that de-registers all of the securities that remain unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of the filing of such documents. Item 4. Description of Securities. Incorporated by reference to the Company's filing on Form S-3/A, Registration Statement No. 333-46775. Item 5. Interests of Named Experts and Counsel. EXPERTS The audited financial statements of Ultramar Diamond Shamrock Corporation incorporated by reference in this prospectus and elsewhere in the registration statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their reports with respect thereto, and are included herein in reliance upon the authority of said firm as experts in accounting and auditing in giving said reports. LEGAL MATTERS The validity of the shares of the Company's Common Stock being offered hereby has been passed upon for the Company by Todd Walker, Esq., Managing Attorney and Corporate Secretary for the Company. Mr. Walker beneficially owns shares of the Common Stock of the Company. Item 6. Indemnification of Directors and Officers. The By-laws of the Company provide that the Company shall indemnify its officers and directors to the fullest extent permitted or required by the Delaware General Corporation Law (the "DGCL"), as amended from time to time, provided, however, that except insofar as the Company's By-laws provide indemnification for an officer or director with respect to a proceeding initiated by such officer or director to enforce rights to indemnification, officers and directors will not be entitled to indemnification in connection with proceedings initiated by an officer or director if the initiation of such proceedings was not authorized by the board of directors of the Company. Section 145 of the DGCL provides, in general, that each director and officer of a corporation may be indemnified against expenses (including attorneys' fees, judgments, fines, and amounts paid in settlement) actually and reasonably incurred in connection with the defense or settlement of any threatened, pending, or completed legal proceedings in which he is involved by reason of the fact that he is or was a director or officer of the Company, if he acted in good faith and in a manner that he reasonably believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe that his conduct was unlawful. If the legal proceeding, however, is by or in the right of the Company, the director or officer may not be indemnified in respect of any claim, issue, or matter as to which he shall have been adjudged to be liable for negligence or misconduct in the performance of his duty to the Company unless a court determines otherwise. The Company's By-laws also provide for advances in certain circumstances covering expenses incurred by an officer or director of the Company in connection with the defense of a proceeding for which such officer or director would be entitled to indemnity under the Company's By-laws. The Company's By-laws further provide that the Company may procure and maintain insurance covering director's and officer's liability for their actions in those capacities, whether or not the Company would be entitled to provide indemnification for such liability under the DGCL. The Certificate of Incorporation of the Company provides that the personal liability of the directors of the Company shall be eliminated to the fullest extent permitted by applicable law. The DGCL permits a corporation's certificate of incorporation to provide that no director of the corporation shall be personally liable to the corporation or its stockholders for monetary damages for any breach of his fiduciary duty as a director; provided, however, that such provision shall not apply to any liability of a director (1) for any breach of a director's duty of loyalty to the corporation or its stockholders, (2) for acts or omissions that are not in good faith or involve intentional misconduct or a knowing violation of the law, (3) under Section 174 of the DGCL or (4) for any transaction from which the director derived an improper personal benefit. The Company has entered into indemnification agreements with the directors and certain officers of the Company providing for indemnification on the terms set out in the By-laws of the Company. Item 8. Exhibits. Exhibit Number Description 4.1 Ultramar Diamond Shamrock Corporation Non-Employee Director Equity Plan (incorporated by reference to the Company's Report on Schedule 14A filed March 21, 2000) 4.2 Rights Agreement dated June 25, 1992 between the Company and Registrar and Transfer Company, as amended (incorporated by reference to Registration Statement on Form S-1 (File No. 33-47586), Exhibit 4.2; Quarterly Report on Form 10-Q for quarter ended September 30, 1992, Exhibit 4.2; Annual Report on Form 10-K for the year ended December 31, 1994, Exhibit 4.3. 5.1 Opinion regarding legality of securities being issued 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Todd Walker, Esq. (included in Exhibit 5.1) 24.1 Power of Attorney of the Company 24.2 Powers of Attorney of Directors and Officers of the Company 24.3 Powers of Attorney of members of the Ultramar Diamond Shamrock Corporation Employee Benefits Committee Item 9. Undertakings. A. The Company hereby undertakes: (1) to file during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (a) to include any prospectus required by Section 10(a) (3) of the Securities Act of 1933, as amended (the "1933 Act"), (b) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in this Registration Statement (except to the extent covered by reports filed under the 1934 Act and incorporated herein by reference), and (c) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; (2) that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The Company hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act and each filing of the Plan's annual report pursuant to Section 15(d) of the 1934 Act that are incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers, and controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company is advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by a director, officer, or controlling person in connection with the securities being registered, the Company will, unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the 1933 Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8/A and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, Texas, on the 3rd day of October, 2000. ULTRAMAR DIAMOND SHAMROCK CORPORATION By: *Jean Gaulin, Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the 1933 Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated: Signature Title Date *Jean Gaulin Chairman of the Board October 3, 2000 and Chief Executive Officer *Robert S. Shapard Executive Vice President October 3, 2000 and Chief Financial officer (Principal Financial Officer and Principal Accounting Officer) *Byron Allumbaugh Director October 3, 2000 *E. Glenn Biggs Director October 3, 2000 *W. E. Bradford Director October 3, 2000 *H. Frederick Christie Director October 3, 2000 *W. H. Clark Director October 3, 2000 *Russel H. Herman Director October 3, 2000 *Bob Marbut Director October 3, 2000 *Katherine D. Ortega Director October 3, 2000 *Madeleine Saint-Jacques Director October 3, 2000 *C. Barry Schaefer Director October 3, 2000 Pursuant to the requirements of the 1933 Act, the Ultramar Diamond Shamrock Corporation Employee Benefits Committee, as administrator of the Non- Employee Director Equity Plan (the "Plan"), have caused this registration statement to be signed on the Plan's behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, Texas on October 3, 2000. ULTRAMAR DIAMOND SHAMROCK CORPORATION NON-EMPLOYEE DIRECTOR EQUITY PLAN BY: ULTRAMAR DIAMOND SHAMROCK CORPORATION EMPLOYEE BENEFITS COMMITTEE * Timothy J. Fretthold, Member * Penelope Viteo, Member * Lorraine Racicot, Member * Steve Blank, Member *Todd Walker, by signing his name hereto, does hereby sign this Registration Statement on Form S-8/A on behalf of Ultramar Diamond Shamrock Corporation, each of the above-named officers and directors of Ultramar Diamond Shamrock Corporation, and each of the above named members of the Ultramar Diamond Shamrock Corporation Employee Benefits Committee pursuant to powers of attorney executed on behalf of the Company and each of such officers, directors, and members. By: /s/ Todd Walker Attorney-in-fact October 3, 2000 INDEX TO EXHIBITS Exhibit Number Description 4.1 Ultramar Diamond Shamrock Corporation Non-Employee Director Equity Plan (incorporated by reference to the Company's Report on Schedule 14A filed March 21, 2000) 4.2 Rights Agreement dated June 25, 1992 between the Company and Registrar and Transfer Company, as amended (incorporated by reference to Registration Statement on Form S-1 (File No. 33-47586), Exhibit 4.2; Quarterly Report on Form 10-Q for quarter ended September 30, 1992, Exhibit 4.2; Annual Report on Form 10-K for the year ended December 31, 1994, Exhibit 4.3. 5.1 Opinion regarding legality of securities being issued 23.1 Consent of Arthur Andersen LLP 23.2 Consent of Todd Walker, Esq. (included in Exhibit 5.1) 24.1 Power of Attorney of the Company 24.2 Powers of Attorney of Directors and Officers of the Company 24.3 Powers of Attorney of members of the Ultramar Diamond Shamrock Corporation Employee Benefits Committee EX-5.1 2 0002.txt OPINION EXHIBIT 5.1 October 3, 2000 Ultramar Diamond Shamrock Corporation P. O. Box 696000 San Antonio, Texas 78269-60000 Re: Ultramar Diamond Shamrock Corporation Non-Employee Director Equity Plan (the "Plan") Gentlemen: I am Counsel for Ultramar Diamond Shamrock Corporation, a Delaware corporation (the "Company"). The Company expects to file with the Securities and Exchange Commission on or about October 5, 2000 under the Securities Act of 1933, as amended, a Registration Statement on Form S-8/A (the Registration Statement") for the purpose of registering 250,000 shares of common stock, $0.01 par value of the Company ("Common stock"). In connection with such filing, I have examined the Plan and such other documents, records, and matters of law as I have deemed necessary for purposes of this opinion and based thereupon, I am of the opinion that the shares of Common stock that may be issued and sold or delivered pursuant to the Plan will be, when issued in accordance with the provisions of the Plan, legally issued, fully paid, and nonassessable and the rights to purchase common stock (the "Rights") in accordance with the Rights Agreement dated June 25, 1992 between the Company and Registrar and Transfer Company, when duly issued, will be legally issued. I hereby consent to the filing of this opinion as an exhibit to the Registration Statement on Form S-8/A for the Plan filed by the Company with the Securities and Exchange Commission to effect registration of such Common Stock under the Securities Act of 1933, as amended. Very truly yours, /s/ Todd Walker Todd Walker EX-23.1 3 0003.txt CONSENT OF INDEPENDENT ACCOUNTANTS EXHIBIT 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference in this Registration Statement of our report dated February 29, 2000 included in Ultramar Diamond Shamrock Corporation's Form 10-K for the year ended December 31, 1999 and to all references to our Firm included in this Registration Statement. /s/ ARTHUR ANDERSEN LLP San Antonio, Texas October 2, 2000 EX-24.1 4 0004.txt COMPANY POWER OF ATTORNEY EXHIBIT 24.1 POWER OF ATTORNEY Ultramar Diamond Shamrock Corporation hereby constitutes and appoints Timothy J. Fretthold and Todd Walker, or either of them, its true and lawful attorneys-in-fact and agents, each with full power of substitution and resubstitution, to do any and all acts and things in its name and behalf, and to execute any and all instruments for it and in its name which the said attorneys-in-fact and agents, or either of them, may deem necessary or advisable to enable Ultramar Diamond Shamrock Corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission in connection with a Registration Statement on Form S-8, including without limitation power and authority to sign for it such Registration Statement and power and any and all amendments (including post-effective amendments) thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith with the Securities and Exchange Commission, hereby ratifying and confirming all that the said attorneys-in-fact and agents, or their substitute or substitutes, or any one of them, shall do or cause to be done by virtue hereof. ULTRAMAR DIAMOND SHAMROCK CORPORATION By: /s/ Jean Gaulin Jean Gaulin Chairman, President, and Chief Executive Officer Dated: October 3, 2000 EX-24.2 5 0005.txt DIRECTORS AND OFFICERS POWER OF ATTORNEY EXHIBIT 24.2 POWER OF ATTORNEY The undersigned directors and/or officers of Ultramar Diamond Shamrock Corporation, hereby constitute and appoint Timothy J. Fretthold and Todd Walker, or either of them, as the true and lawful attorneys-in-fact and agents of the undersigned, each with full power of substitution and resubstitution, to do any and all acts and things in their names and in their respective capacities as a director and/or an officer of Ultramar Diamond Shamrock Corporation, and to execute any and all instruments for them and in their names in the capacities indicated above, which said attorneys-in-fact and agents, or either of them, may deem necessary or advisable to enable Ultramar Diamond Shamrock Corporation to comply with the Securities Act of 1933, as amended, and any rules, regulations and requirements of the Securities and Exchange Commission in connection with a Registration Statement on Form S-8, including without limitation power and authority to sign for them, in their name in the capacities indicated above, such Registration Statement and any and all amendments (including post-effective amendments) thereto, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that the said attorneys-in-fact and agents, or their substitute or substitutes, or any one of them, shall do or cause to be done by virtue hereof. /s/ Jean Gaulin /s/ Russell H. Herman Jean Gaulin Russell H. Herman /s/ Byron Allumbaugh /s/ Bob Marbut Byron Allumbaugh Bob Marbut /s/ E. Glenn Biggs /s/ Katherine D. Ortega E. Glenn Biggs Katherine D. Ortega _________________________ /s/ Madeleine Saint-Jacques W. E. Bradford Madeleine Saint-Jacques /s/ H. Frederick Christie /s/ C. Barry Schaefer H. Frederick Christie C. Barry Schaefer /s/ W. H. Clark /s/ Robert S. Shapard W. H. Clark Robert S. Shapard Dated: October 3, 2000 EX-24.3 6 0006.txt EMPLOYEE BENEFITS COMMITTEE POWER OF ATTORNEY EXHIBIT 24.3 POWER OF ATTORNEY The undersigned members of the Employee Benefits Committee of Ultramar Diamond Shamrock Corporation (the "Committee") hereby constitute and appoint Timothy J. Fretthold and Todd Walker, or either of them, as the true and lawful attorneys-in-fact and agents of the undersigned, each with full power of substitution and resubstitution, to do any and all acts and things in their names and in their respective capacities as a member of the Committee, and to execute any and all instruments for them and in their names in the capacities indicated above, which said attorneys-in-fact and agents, or either of them, may deem necessary or advisable to enable the Committee to comply with the Securities Act of 1933, as amended, and any rules, regulations, and requirements of the Securities and Exchange Commission in connection with a Registration Statement on Form S-8, including without limitation power and authority to sign for 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/ Timothy J. Fretthold Timothy J. Fretthold /s/ Penelope Viteo Penelope Viteo /s/ Lorraine Racicot Lorraine Racicot /s/ Steve Blank Steve Blank Dated: October 3, 2000 -----END PRIVACY-ENHANCED MESSAGE-----