-----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, UJ4LJYVba710QjnnfZhVrwbSaIt7qvK7+uk1pNgOxL76pMnulHkFYlw9cG91A4p0 toFVJiYyEwbZsTPfPC7n9Q== 0000887207-96-000050.txt : 19970102 0000887207-96-000050.hdr.sgml : 19970102 ACCESSION NUMBER: 0000887207-96-000050 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 12 FILED AS OF DATE: 19961231 EFFECTIVENESS DATE: 19961231 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: ULTRAMAR DIAMOND SHAMROCK CORP CENTRAL INDEX KEY: 0000887207 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 133663331 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-8 SEC ACT: 1933 Act SEC FILE NUMBER: 333-19131 FILM NUMBER: 96689186 BUSINESS ADDRESS: STREET 1: 9830 COLONNADE STREET 2: P O BOX 696000 CITY: SAN ANTONIO STATE: TX ZIP: 78269-6000 BUSINESS PHONE: 2106416800 MAIL ADDRESS: STREET 1: TWO PICKWICK PLAZA STREET 2: THIRD FLOOR CITY: GREENWICH STATE: CT ZIP: 06830 FORMER COMPANY: FORMER CONFORMED NAME: ULTRAMAR CORP /DE DATE OF NAME CHANGE: 19930328 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on December 31, 1996 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ULTRAMAR DIAMOND SHAMROCK CORPORATION (Exact name of registrant as specified in its charter) Delaware 13-3663331 (State of Incorporation) (IRS Employer Identification No.) 9830 Colonnade Boulevard San Antonio, Texas 78230 (Address of principal executive offices) DIAMOND SHAMROCK, INC. 1987 LONG-TERM INCENTIVE PLAN, DIAMOND SHAMROCK, INC. LONG-TERM INCENTIVE PLAN (Full title of the plan) Patrick J. Guarino, Esq. Executive Vice President, General Counsel, and Secretary Ultramar Diamond Shamrock Corporation 9830 Colonnade Boulevard San Antonio, Texas 78230 (210) 641-6488 (Name, address and telephone number, including area code, of agent for service) CALCULATION OF REGISTRATION FEE Title of Amount Proposed Proposed Amount of securities to to be maximum maximum registration be registered(1) registered offering aggregate fee price per offering share price Common Stock, 17,340 $31.188(2) $ 540,792(2) $ 164(2) par value $.01 per share 802,325 (3) $19,956,741(3) $6,048(3) ___________________________________________________________________________ (1) Includes associated rights to purchase Ultramar Diamond Shamrock Corporation Common Stock exercisable only upon the occurrence of certain events. (2) Pursuant to Rule 457(h) and Rule 457(c), the proposed maximum offering price per share and the registration fee are based on the reported average of the high and low prices for Ultramar Diamond Shamrock Corporation Common Stock on the New York Stock Exchange on December 23, 1996. (3) Pursuant to Rule 457(h), the proposed maximum offering price per share and the registration fee are based upon the prices at which options may be exercised. 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 Ultramar Diamond Shamrock Corporation, formerly Ultramar Corporation (the "Company") are incorporated herein by reference: (a) The Company's 1995 Annual Report on Form 10-K for the fiscal year ended December 31, 1995, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) The Company's Quarterly Reports on (1) Form 10-Q for the quarter ended March 31, 1996, (2) on Form 10-Q/A for the quarter ended June 30, 1996, and (3) on Form 10-Q for the quarter ended September 30, 1996; (c) The Company's Current Report on Form 8-K dated September 22, 1996, and the Company's two Current Reports on Form 8-K, both dated December 3, 1996; and (d) The description of Common Stock of the Company contained in the Company's Registration Statement on Form S-4 (File No. 333-14807). All documents filed by the Company pursuant to Sections 13(a), 13(c), 14, or 15(d) of the 1934 Act subsequent to the filing of this Form S-8 Registration Statement (the "Registration Statement") and prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated by reference herein and to be a part hereof from the respective dates of the filing of such documents. Item 5. Interests of Named Experts and Counsel EXPERTS The consolidated financial statements and schedules of the Company appearing in the Company's Annual Report on Form 10-K for the year ended December 31, 1995, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements and schedules are, and audited consolidated financial statements and schedules to be included in subsequently filed documents will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such consolidated financial statements and schedules (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firm as experts in accounting and auditing. The financial statements incorporated in this Registration Statement by reference to the Company's Current Report on Form 8-K dated December 3, 1996, which incorporated by reference portions of Diamond Shamrock, Inc.'s Annual Report on Form 10-K/A for the year ended December 31, 1995, 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 accounting and auditing. LEGAL MATTERS The validity of the shares of the Company's Common Stock being offered hereby will be passed upon for the Company by Todd Walker, Esq., Senior Attorney for the Company. As of December 27, 1996, Mr. Walker beneficially owned 4,894 shares of the Common Stock of the Company, including 423 shares which he had the right to acquire within 60 days through the exercise of employee stock options. 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 Certificate of Incorporation of the Company, as amended through April 28, 1992 (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1 (File No. 33-47586) filed with the Securities and Exchange Commission on May 1, 1992)* 4.2 Certificate of Merger of Diamond Shamrock, Inc. into the Company, amending the Company's Certificate of Incorporation 4.3 Certificate of Designations of the Company's 5% Cumulative Convertible Preferred Stock 4.4 By-laws of the Company (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1 (File No. 33-47586) filed with the Securities and Exchange Commission on May 1, 1992))* 4.5 Secretary's Certificate dated July 22, 1993, amending the By-laws of the Company 4.6 Secretary's Certificate dated December 3, 1996, amending the By-laws of the Company 4.7 Rights Agreement, dated June 25, 1992, between the Company and Registrar and Transfer Company (as successor rights agent to First City, Texas-Houston, National Association), as amended by the First Amendment dated October 26, 1992, the Amendment dated May 10, 1994 and the Amendment dated September 22, 1996 (incorporated by reference to Exhibit 4.2 of the Company's Registration Statement on Form S-1 (File No. 33-47586), Exhibit 4.2 of the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1992, Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994 and Exhibit 4.1 of the Company's Current Report on Form 8-K dated September 25, 1996)* 4.8 Form of the Company's Common Stock Certificate 5.1 Opinion regarding legality of securities being issued 23.1 Consent of Price Waterhouse LLP 23.2 Consent of Ernst & Young LLP 23.3 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 Certificate regarding resolutions of the Board of Directors of the Company 24.4 Agreement and Plan of Merger, dated as of September 22, 1996, between the Company and Diamond Shamrock, Inc. (incorporated by reference to Appendix A to the Joint Proxy Statement/Prospectus included in the Company's Registration Statement on Form S-4 (File No. 333-14807))*. 99.1 Diamond Shamrock, Inc. 1987 Long Term Incentive Plan (Exhibit 4.1 to Diamond Shamrock, Inc.'s Form S-8 Registration Statement No. 33-15268)* 99.2 Diamond Shamrock, Inc. Long Term Incentive Plan (Exhibit 4.1 to Diamond Shamrock, Inc.'s Form S-8 Registration Statement No. 33-59025)* * Each document marked by an asterisk is incorporated herein by reference to the designated document previously filed with the Commission. Item 9. Undertakings. A. The Company hereby undertakes (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (a) to include any prospectus required by Section 10(a) (3) of the Securities Act of 1933, as amended (the "1933 Act"), (b) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represents a fundamental change in the information set forth in this Registration Statement, and (c) to include any material information with respect to the plan of distribution not previously disclosed in this Registration Statement or any material change to such information in this Registration Statement; (2) that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; and (3) to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The Company hereby undertakes that, for purposes of determining any liability under the 1933 Act, each filing of the Company's annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the 1933 Act may be permitted to directors, officers and controlling persons of the Company pursuant to the foregoing provisions or otherwise, the Company is advised that, in the opinion of the Commission, such indemnification is against public policy as expressed in the 1933 Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Company of expenses incurred or paid by a director, officer or controlling person of the Company in the successful defense of any action, suit or proceeding) is asserted by a director, officer or controlling person in connection with the securities being registered, the Company will, unless in the opinion of counsel for the Company the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the 1933 Act and will be governed by the final adjudication of such issue. SIGNATURES Pursuant to the requirements of the 1933 Act, the Company certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of San Antonio, Texas, on the 31st day of December, 1996. ULTRAMAR DIAMOND SHAMROCK CORPORATION By: *R. R. Hemminghaus Chairman of the Board and Chief Executive Officer Pursuant to the requirements of the 1933 Act, this Registration Statement has been signed by the following persons in the capacities and on the date indicated: Signature Title Date *R. R. Hemminghaus Chairman of the Board December 31, 1996 *H. Pete Smith Chief Financial Officer December 31, 1996 (Principal Financial Officer) Chief Accounting Officer (Principal Accounting Officer), and Executive Vice President *Byron Allumbaugh Director December 31, 1996 *E. Glenn Biggs Director December 31, 1996 *W. E. Bradford Director December 31, 1996 *H. Frederick Christie Director December 31, 1996 *W. H. Clark Director December 31, 1996 *Bob Marbut Director December 31, 1996 *Katherine D. Ortega Director December 31, 1996 *Madeleine Saint-Jacques Director December 31, 1996 *C. Barry Schaefer Director December 31, 1996 *Todd Walker, by signing his name hereto, does hereby sign this Registration Statement on Form S-8 on behalf of Ultramar Diamond Shamrock Corporation and each of the above-named officers and directors of Ultramar Diamond Shamrock Corporation pursuant to powers of attorney executed on behalf of the Company and each of such officers and directors. By: /s/ Todd Walker Attorney-in-fact December 31, 1996 INDEX TO EXHIBITS Exhibit No. Description 4.1 Certificate of Incorporation of the Company, as amended through April 28, 1992 (filed as Exhibit 3.1 to the Company's Registration Statement on Form S-1 (File No. 33-47586) filed with the Securities and Exchange Commission on May 1, 1992)* 4.2 Certificate of Merger of Diamond Shamrock, Inc. into the Company, amending the Company's Certificate of Incorporation 4.3 Certificate of Designations of the Company's 5% Cumulative Convertible Preferred Stock 4.4 By-laws of the Company (filed as Exhibit 3.2 to the Company's Registration Statement on Form S-1 (File No. 33-47586) filed with the Securities and Exchange Commission on May 1, 1992))* 4.5 Secretary's Certificate dated July 22, 1993, amending the By-laws of the Company 4.6 Secretary's Certificate dated December 3, 1996, amending the By-laws of the Company 4.7 Rights Agreement, dated June 25, 1992, between the Company and Registrar and Transfer Company (as successor rights agent to First City, Texas-Houston, National Association), as amended by the First Amendment dated October 26, 1992, the Amendment dated May 10, 1994 and the Amendment dated September 22, 1996 (incorporated by reference to Exhibit 4.2 of the Company's Registration Statement on Form S-1 (File No. 33-47586), Exhibit 4.2 of the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 1992, Exhibit 4.3 to the Company's Annual Report on Form 10-K for the year ended December 31, 1994 and Exhibit 4.1 of the Company's Current Report on Form 8-K dated September 25, 1996)* 4.8 Form of the Company's Common Stock Certificate 5.1 Opinion regarding legality of securities being issued 23.1 Consent of Price Waterhouse LLP 23.2 Consent of Ernst & Young LLP 23.3 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 Certificate regarding resolutions of the Board of Directors of the Company 24.4 Agreement and Plan of Merger, dated as of September 22, 1996, between the Company and Diamond Shamrock, Inc. (incorporated by reference to Appendix A to the Joint Proxy Statement/Prospectus included in the Company's Registration Statement on Form S-4 (File No. 333-14807))*. 99.1 Diamond Shamrock, Inc. 1987 Long Term Incentive Plan (Exhibit 4.1 to Diamond Shamrock, Inc.'s Form S-8 Registration Statement No. 33-15268)* 99.2 Diamond Shamrock, Inc. Long Term Incentive Plan (Exhibit 4.1 to Diamond Shamrock, Inc.'s Form S-8 Registration Statement No. 33-59025)* * Each document marked by an asterisk is incorporated herein by reference to the designated document previously filed with the Commission. W5004.TW EX-4.2 2 Exhibit 4.2 CERTIFICATE OF MERGER OF DIAMOND SHAMROCK, INC. INTO ULTRAMAR CORPORATION UNDER SECTION 251 OF THE GENERAL CORPORATION LAW OF THE STATE OF DELAWARE Pursuant to Section 251 of the General Corporation Law of the State of Delaware (the "GCL"), ULTRAMAR CORPORATION, a Delaware corporation ("ULTRAMAR"), hereby certifies the following information relating to the merger of DIAMOND SHAMROCK, INC., a Delaware corporation ("DIAMOND"), with and into ULTRAMAR (the "Merger"): FIRST: The names and states of incorporation of ULTRAMAR and DIAMOND, which are the constituent corporations in the Merger (the "Constituent Corporations"), are: Name State ULTRAMAR CORPORATION Delaware DIAMOND SHAMROCK, INC. Delaware SECOND: The Agreement and Plan of Merger (the "Merger Agreement"), dated as of September 22, 1996 between ULTRAMAR and DIAMOND, setting forth the terms and conditions of the Merger, has been approved, adopted, certified, executed and acknowledged by each of the Constituent Corporations in accordance with Section 251 of the GCL. THIRD: The name of the corporation surviving the Merger is Ultramar Corporation which name shall be changed in the Merger to Ultramar Diamond Shamrock Corporation. FOURTH: The certificate of incorporation of ULTRAMAR shall be amended as follows (and as so amended shall be the certificate of incorporation of the corporation surviving the Merger until thereafter changed or amended as provided therein or by applicable law): a. by deleting article FIRST in its entirety and by inserting the following in its place: "FIRST: The name of the corporation is Ultramar Diamond Shamrock Corporation (hereinafter the "Corporation")." b. by deleting Section 1 of Article FOURTH in its entirety and by inserting the following in its place: "(1) The total number of shares which the Corporation shall have authority to issue is 275,000,000 shares, consisting of (a) 250,000,000 shares of common stock, par value $.01 per share (the "Common Stock"), and (b) 25,000,000 shares of preferred stock, par value $.01 per share (the "Preferred Stock")." c. by adding a new Article ELEVENTH, immediately following Article TENTH, which reads in its entirety as follows: "ELEVENTH: With respect to any action required or permitted to be taken by the stockholders of the Corporation at any annual or special meeting, unless required by law or determined by the chairman of the meeting to be advisable, the vote on any matter, including the election of directors, need not be by written ballot." FIFTH: An executed Merger Agreement is on file at 9830 Colonnade Boulevard, San Antonio, Texas 78230 which is the address of an office of the corporation surviving the Merger. SIXTH: A copy of the Merger Agreement will be furnished by the corporation surviving the Merger, on request and without cost, to any stockholder of either of the Constituent Corporations. IN WITNESS WHEREOF, this Certificate of Merger has been executed on this 3rd day of December, 1996. ULTRAMAR CORPORATION By: /s/ PATRICK GUARINO Name: Patrick Guarino Title: Senior Vice President, General Counsel and Secretary w5017.tw EX-4.3 3 Exhibit 4.3 ULTRAMAR CORPORATION CERTIFICATE OF DESIGNATIONS 5% CUMULATIVE CONVERTIBLE PREFERRED STOCK (Pursuant to Section 151(g) of the General Corporation Law of the State of Delaware) Ultramar Corporation, a corporation organized and existing under the laws of the State of Delaware, does hereby certify that: FIRST: Ultramar Corporation (the "Corporation") was incorporated in the State of Delaware on April 28, 1992; SECOND: Pursuant to authority conferred upon the Board of Directors under the Certificate of Incorporation of the Corporation ("Certificate") and the provisions of Sections 141 and 151 of the General Corporation Law of the State of Delaware, the Board of Directors of the Corporation acting at the Board of Directors' meeting held on December 3, 1996, at which a quorum was at all times present and voting, adopted resolutions, which are in full force and effect and are not in conflict with any provisions of the Corporation's Certificate or its By-laws, approving this certificate of designations and authorizing the undersigned to execute and deliver this certificate of designations setting forth the number, terms, designation, relative rights, preferences and limitations of a series of preferred stock, $.01 par value, of the Corporation as follows: (a) Designation. There is hereby created a class of preferred stock, $.01 par value, of this Corporation to be known as "5% Cumulative Convertible Preferred Stock" (the "5% Preferred Stock"). The number of shares of 5% Preferred Stock authorized for issuance is 1,725,000. (b) Stated Capital. The amount to be represented in stated capital at all times for each share of 5% Preferred Stock shall be $.01. (c) Rank. All 5% Preferred Stock shall rank prior to all of the Corporation's Common Stock, $.01 par value (the "Common Stock"), now or hereafter issued, both as to payment of dividends and as to distributions of assets upon liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary. (d) Dividends. The holders of shares of 5% Preferred Stock shall be entitled to receive dividends at the rate of $2.50 per annum per share, and no more, which shall be fully cumulative and shall accrue without interest. Dividends will be payable in cash quarterly on March 15, June 15, September 15, and December 15 of each year commencing March 15, 1997 (except that if any such date is a Saturday, Sunday or legal holiday then such dividend shall be payable on the next day that is not a Saturday, Sunday or legal holiday) to holders of record as they appear on the stock books of the Corporation on the applicable record date, which shall be not more than 60 nor less than 10 days preceding the payment date for such dividends, as are fixed by the Board of Directors, but only when, as and if declared by the Board of Directors out of funds at the time legally available for the payment of dividends. The amount of dividends payable per share of 5% Preferred Stock for each quarterly dividend period shall be computed by dividing the annual dividend amount per share by four. The amount of dividends payable for any period shorter than a full quarterly dividend period shall be computed on the basis of a 360-day year of twelve 30-day months. No dividends or other distributions, other than dividends payable solely in shares of Common Stock or other capital stock of the Corporation ranking junior as to dividends to the 5% Preferred Stock ("Junior Dividend Stock"), shall be paid or set apart for payment on, and no purchase, redemption or other acquisition shall be made by the Corporation of, any shares of Common Stock or Junior Dividend Stock unless and until all accrued and unpaid dividends on the 5% Preferred Stock shall have been paid or declared and set apart for payment. If at any time the Corporation shall have failed to pay, or declare and set apart for payment, in full any accrued dividend on any capital stock of the Corporation ranking senior as to dividends to the 5% Preferred Stock ("Senior Dividend Stock"), in whole or in part, no dividend shall be paid or declared and set apart for payment on the 5% Preferred Stock unless and until all accrued and unpaid dividends (plus interest, if required) with respect to the Senior Dividend Stock shall have been paid or declared and set apart for payment, without interest. No full cumulative dividends shall be paid or declared and set apart for payment on any class or series of the Corporation's capital stock ranking, as to dividends, on a parity with the 5% Preferred Stock (the "Parity Dividend Stock") for any period unless full cumulative dividends have been, or contemporaneously are, paid or declared and set apart for such payment on the 5% Preferred Stock for all dividend payment periods terminating on or prior to the date of payment of such full cumulative dividends. No dividends shall be paid or declared and set apart for payment on the 5% Preferred Stock for any period unless full cumulative dividends have been, or contemporaneously are, paid or declared and set apart for payment on the Parity Dividend Stock for all dividend periods terminating on or prior to the date of payment of such dividends on the 5% Preferred Stock. When dividends are not paid in full upon the 5% Preferred Stock and the Parity Dividend Stock, all dividends paid or declared and set aside for payment upon shares of 5% Preferred Stock and the Parity Dividend Stock shall be paid or declared and set aside for payment pro rata so that the amount of dividends paid or declared and set aside for payment per share on the 5% Preferred Stock and the Parity Dividend Stock shall in all cases bear to each other the same ratio that accrued and unpaid dividends per share on the shares of 5% Preferred Stock and the Parity Dividend Stock bear to each other. Any reference to "distribution" contained in this Paragraph (d) shall not be deemed to include any stock dividend or distributions made in connection with any liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary. (e) Liquidation Preference. In the event of a liquidation, dissolution or winding up of the Corporation, whether voluntary or involuntary, the holders of 5% Preferred Stock shall be entitled to receive out of the assets of the Corporation, whether such assets are stated capital or surplus of any nature, an amount equal to the dividends accrued and unpaid thereon as of the date of final distribution to such holders, whether or not declared, without interest, and a sum equal to $50.00 per share, and no more, before any payment shall be made or any assets distributed to the holders of Common Stock or any other class or series of the Corporation's capital stock ranking junior as to liquidation rights to the 5% Preferred Stock (the "Junior Liquidation Stock"); provided, however, that such rights shall accrue to the holders of 5% Preferred Stock only in the event that the Corporation's payments with respect to the liquidation preferences of the holders of capital stock of the Corporation ranking senior as to liquidation rights to the 5% Preferred Stock (the "Senior Liquidation Stock") are fully met. The entire assets of the Corporation available for distribution after the liquidation preferences of the Senior Liquidation Stock are fully met shall be distributed ratably among the holders of the 5% Preferred Stock and any other class or series of the Corporation's capital stock which may hereafter be created having parity as to liquidation rights with the 5% Preferred Stock in proportion to the respective preferential amounts to which each is entitled (but only to the extent of such preferential amounts). Neither a consolidation or merger of the Corporation with another corporation nor a sale or transfer of all or part of the Corporation's assets for cash, securities or other property will be considered a liquidation, dissolution or winding up of the Corporation. (f) Redemption at Option of the Corporation. The Corporation, at its option, may at any time prior to June 14, 2000, redeem all or any part of the 5% Preferred Stock on any date set by the Board of Directors of the Corporation by issuing for each share of 5% Preferred Stock being redeemed such number of shares of Common Stock as are equal to $50.00 divided by the Conversion Price (as defined in Paragraph (h) below), and by paying an amount in cash equal to accrued and unpaid dividends to the date fixed for redemption. The Corporation may exercise such option only if, for 20 of any 30 consecutive trading days, including the last trading day of such period, the Closing Price (as defined in Paragraph (h) below) of the Common Stock exceeds 130% of the Conversion Price of the Common Stock in effect on the last trading day of such 30-trading-day period. To exercise its redemption right under this Paragraph (f), the Corporation must issue a press release announcing the redemption prior to 9:00 a.m. New York City time on the second trading day after the end of any such 30-consecutive- trading day period described in the preceding sentence. On or after June 15, 2000, the 5% Preferred Stock is redeemable for cash, in whole or in part, at any time at the option of the Corporation, at a redemption price of $50.00 per share, plus accrued and unpaid dividends to the date fixed for redemption. If the Corporation intends to redeem less than all of the then-outstanding shares of 5% Preferred Stock, the Corporation shall designate by lot, or in such other manner as the Board of Directors may determine, the shares to be redeemed, or shall effect such redemption pro rata. Notwithstanding the foregoing, the Corporation shall not redeem less than all of the 5% Preferred Stock at any time outstanding until all dividends accrued and in arrears upon all 5% Preferred Stock then outstanding shall have been paid. Not more than 60 nor less than 15 days prior to the redemption date, and, if the redemption is to occur on or prior to June 14, 2000, not more than four days after the Corporation issues the press release required under the first paragraph of this Paragraph (f), notice by first class mail, postage prepaid, shall be given to the holders of record of the 5% Preferred Stock to be redeemed, addressed to such stockholders at their last addresses as shown on the stock books of the Corporation. Each such notice of redemption shall specify the date fixed for redemption; the redemption price (if the 5% Preferred Stock is to be redeemed for cash); the number of shares of Common Stock to be delivered (if the 5% Preferred Stock is to be redeemed for Common Stock); the place or places for payment or delivery; that payment or delivery of the Common Stock will be made upon presentation and surrender of the certificates representing shares of 5% Preferred Stock being redeemed; that accrued but unpaid dividends to the date fixed for redemption will be paid on the date fixed for redemption; that (if the 5% Preferred Stock is to be redeemed for Common Stock) a cash adjustment for fractional shares of Common Stock will be paid on the date fixed for redemption; that conversion rights with respect to the 5% Preferred Stock will expire on the close of business on the redemption date; and that on and after the redemption date, dividends will cease to accrue on such shares. If a dividend with respect to the 5% Preferred Stock has been declared by the Board of Directors of the Corporation and if the redemption date with respect to a redemption of 5% Preferred Stock for either cash or Common Stock falls after the dividend record date established by the Board of Directors of the Corporation with respect to such dividend, but prior to the related dividend payment date, the record holders of the 5% Preferred Stock on such record date will be entitled to receive the dividend payable on the 5% Preferred Stock, notwithstanding the redemption thereof. Any notice which is mailed as herein provided shall be conclusively presumed to have been duly given, whether or not the holder of the 5% Preferred Stock receives such notice; and failure to give such notice by mail, or any defect in such notice, to the holders of any shares designated for redemption shall not affect the validity of the proceedings for the redemption of any other shares of 5% Preferred Stock. On or after the date fixed for redemption, as stated in such notice, each holder of the shares of 5% Preferred Stock called for redemption shall surrender the certificate evidencing such shares to the Corporation at the place designated in such notice and shall thereupon be entitled to receive payment of the redemption price or delivery of shares of Common Stock deliverable upon redemption, as the case may be. If less than all shares represented by any such surrendered certificate are redeemed, a new certificate shall be issued representing the unredeemed shares. If on the date fixed for redemption a sufficient number of shares of Common Stock, if applicable, and the funds necessary for the redemption shall be available therefor and shall have been irrevocably deposited with the transfer agent for the 5% Preferred Stock, then, notwithstanding that the certificates evidencing any shares of 5% Preferred Stock so called for redemption shall not have been surrendered, dividends with respect to the shares of 5% Preferred Stock so called for redemption shall cease to accrue after the date fixed for redemption, such shares shall no longer be deemed outstanding, and all rights whatsoever with respect to the shares so called for redemption (except the right of the holders to receive any Common Stock issuable and any cash payable, without interest, upon surrender of their certificates therefor) shall terminate. Shares of 5% Preferred Stock redeemed by the Corporation will be restored to the status of authorized but unissued shares of preferred stock, without designation as to class, and may thereafter be issued, but not as shares of 5% Preferred Stock. No fractional shares of Common Stock shall be issued upon redemption of 5% Preferred Stock for Common Stock, and in lieu of any fraction of a share of Common Stock which would otherwise be issuable in respect of the aggregate number of such shares of 5% Preferred Stock redeemed at one time from the same record holder, the Corporation shall pay in cash (rounded to the nearest cent) an amount equal to the product of (i) the Closing Price of a share of Common Stock on the last trading day with respect to the Common Stock before the redemption date, and (ii) such fraction of a share. The Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery upon redemption of shares of 5% Preferred Stock for shares of Common Stock in a name other than that of the record holder of the shares of the 5% Preferred Stock being redeemed and the Corporation shall not be required to issue or deliver any such shares unless and until the person or persons requesting the issuance thereof shall have paid to the Corporation the amount of any such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. (g) No Sinking Fund. The shares of 5% Preferred Stock shall not be subject to the operation of a purchase, retirement or sinking fund. (h) Conversion. The holders of the 5% Preferred Stock may, upon surrender of the certificates therefor, convert any or all of their shares of 5% Preferred Stock into fully paid and nonassessable shares of Common Stock and such other securities and property as hereafter provided at any time after issuance thereof, but not later than the close of business on the date, if any, fixed for the redemption thereof in any notice of redemption given pursuant to the provisions of Paragraph (f) hereof unless there is a default in payment of cash, or the delivery of Common Stock issuable, in connection with such redemption in which case such conversion may be effected any time prior to a subsequent redemption date on which such payment of cash and/or delivery of Common Stock is made in full. Each share of 5% Preferred Stock shall be convertible at the office of the transfer agent for the 5% Preferred Stock, and at such other office or offices, if any, as the Board of Directors of the Corporation may designate, into the number of fully paid and nonassessable shares of Common Stock (calculated as to each conversion to the nearest 1/100th of a share) obtained by dividing $50.00 by the Conversion Price in effect at the time of conversion. Shares of 5% Preferred Stock may be converted into full shares of Common Stock at the initial conversion price of $25.98 per share of Common Stock, subject to adjustment as hereinafter provided (the "Conversion Price"). No adjustment shall be made in respect of cash dividends on Common Stock or 5% Preferred Stock that may be accrued and unpaid at the date of surrender for conversion. Notwithstanding anything in this Paragraph (h) to the contrary, no change in the Conversion Price shall actually be made until the cumulative effect of the adjustments called for by this Paragraph (h) since the date of the last change in the Conversion Price would change the Conversion Price by more than 1%. However, once the cumulative effect would result in a change of more than 1%, then the Conversion Price shall actually be changed to reflect all adjustments called for by this Paragraph (h) and not previously made. Notwithstanding anything in this Paragraph (h) to the contrary, no change in the Conversion Price shall be made which would result in a Conversion Price of less than the par value of the Common Stock. The right of the holders of 5% Preferred Stock to convert their shares shall be exercised by surrendering for such purpose to the Corporation or its agent, as provided above, certificates representing all shares to be converted, duly endorsed in blank or accompanied by proper instruments of transfer. The Corporation shall not be required to pay any tax which may be payable in respect of any transfer involved in the issue and delivery upon conversion of shares of 5% Preferred Stock for shares of Common Stock or other securities or property in a name other than that of the recordholder of the shares of 5% Preferred Stock being converted and the Corporation shall not be required to issue or deliver any such shares of Common Stock or other securities or property unless and until the person or persons requesting the issuance thereof shall have paid to the Corporation the amount of any such tax or shall have established to the satisfaction of the Corporation that such tax has been paid. A number of shares of authorized but unissued Common Stock sufficient to provide for the conversion of the 5% Preferred Stock outstanding upon the basis herein provided shall at all times be reserved by the Corporation, free from preemptive rights, for such conversion, subject to the provisions of the next succeeding paragraph. If the Corporation shall issue any securities or make any change in its capital structure which would change the Conversion Price of the Common Stock into which each share of the 5% Preferred Stock is convertible as herein provided, the Corporation shall at the same time also make proper provision so that thereafter there shall be a sufficient number of shares of Common Stock authorized and reserved, free from preemptive rights, for conversion of the outstanding 5% Preferred Stock at the new Conversion Price. In case of any consolidation or merger of the Corporation with any other corporation (other than a wholly owned subsidiary of the Corporation), or in case of any sale or transfer of all or substantially all of the assets of the Corporation, or in the case of any share exchange pursuant to which all of the outstanding shares of Common Stock are converted into other securities or property, the Corporation shall make appropriate provision or cause appropriate provision to be made so that holders of each share of 5% Preferred Stock then outstanding shall have the right thereafter to convert such share of 5% Preferred Stock into the kind and amount of shares of stock and other securities and property receivable upon such consolidation, merger, sale, transfer or share exchange by a holder of the number of shares of Common Stock into which such share of 5% Preferred Stock might have been converted immediately prior to the effective date of such consolidation, merger, sale, transfer or share exchange. If in connection with any such consolidation, merger, sale, transfer or share exchange, each holder of shares of Common Stock is entitled to elect to receive either securities, cash or other assets upon completion of such transaction, the Corporation shall provide or cause to be provided to each holder of 5% Preferred Stock the right to elect the securities, cash or other assets into which the 5% Preferred Stock held by such holder shall be convertible after completion of any such transaction on the same terms and subject to the same conditions applicable to holders of the Common Stock (including, without limitation, notice of the right to elect, limitations on the period in which such election shall be made and the effect of failing to exercise the election). The Corporation shall not effect any such transaction unless the provisions of this paragraph have been complied with. The above provisions shall similarly apply to successive consolidations, mergers, sales, transfers or share exchanges. Upon the surrender of certificates representing shares of 5% Preferred Stock, the person converting such shares shall be deemed to be the holder of record of the Common Stock issuable upon such conversion and all rights with respect to the shares surrendered shall forthwith terminate except the right to receive the Common Stock or other securities, cash or other assets as herein provided. No fractional shares of Common Stock shall be issued upon conversion of 5% Preferred Stock but, in lieu of any fraction of a share of Common Stock which would otherwise be issuable in respect of the aggregate number of such shares of 5% Preferred Stock surrendered for conversion at one time by the same holder, the Corporation shall pay in cash an amount equal to the product of (i) the Closing Price of a share of Common Stock on the last trading day before the conversion date and (ii) such fraction of a share. For the purposes of any computation pursuant to this Paragraph (h), the "Current Market Price" per share of the Common Stock shall be deemed to be the average daily Closing Prices of the Common Stock for the 30 consecutive trading days commencing 45 trading days before the date to which reference is made in subparagraphs (1) or (2) below. The "Closing Price" for each trading day shall be the last reported sales price regular way or, in case no sale takes place on such day, the average of the closing bid and asked prices regular way on such day, in either case as reported on the New York Stock Exchange ("NYSE") Composite Tape, or if the Common Stock is not listed or admitted to trading on the NYSE, on the principal national securities exchange on which the Common Stock is listed or admitted to trading, or if not listed or admitted to trading on any national securities exchange, the average of the high bid and low asked prices on such day as reported by the National Association of Securities Dealers, Inc. through NASDAQ, or if the National Association of Securities Dealers, Inc. through NASDAQ shall not have reported any bid and asked prices for the Common Stock on such day, the average of the bid and asked prices for such day as furnished by any NYSE member firm selected from time to time by the Corporation for such purpose, or if no such bid and asked prices can be obtained from any such firm, the fair market value of one share of the Common Stock on such day as determined in good faith by the Board of Directors of the Corporation. The Conversion Price shall be adjusted from time to time under certain circumstances, subject to the provisions of the last three sentences of the first paragraph of this Paragraph (h) as follows: (1) In case the Corporation shall (w) pay a dividend or make a distribution on its Common Stock in shares of its capital stock, (x) subdivide its outstanding Common Stock into a greater number of shares, (y) combine the shares of its outstanding Common Stock into a smaller number of shares, or (z) issue by reclassification of its Common Stock any shares of its capital stock, then in each such case the Conversion Price in effect immediately prior thereto shall be proportionately adjusted so that the holder of any 5% Preferred Stock thereafter surrendered for conversion shall be entitled to receive, to the extent permitted by applicable law, the number and kind of shares of capital stock of the Corporation which he would have owned or have been entitled to receive after the happening of such event had the 5% Preferred Stock held by such holder been converted immediately prior to the record date (or if no record date has been established in connection with such event, the effective date) for such action. An adjustment pursuant to this subparagraph (1) shall become effective immediately after the record date in the case of a stock dividend or distribution and shall become effective immediately after the effective date in the case of a subdivision, combination or reclassification. (2) In case the Corporation shall issue rights or warrants to all holders of the Common Stock entitling such holders to subscribe for or purchase Common Stock at a price per share less than the Current Market Price per share of the Common Stock on the record date referred to below, then in each such case the Conversion Price in effect on such record date shall be adjusted in accordance with the formula: O + N C' = C divided by O + N x P M where C' = the adjusted Conversion Price. C = the current Conversion Price. O = the number of shares of Common Stock outstanding on the record date. N = the number of additional shares of Common Stock offered. P = the offering price per share of the additional shares. M = the Current Market Price per share of Common Stock on the record date. Such adjustment shall become effective immediately after the record date for the determination of stockholders entitled to receive such rights or warrants. If any or all such rights or warrants are not so issued or expire or terminate before being exercised, the Conversion Price then in effect shall be appropriately readjusted. Except as otherwise provided above in this Paragraph (h), no adjustment in the Conversion Price shall be made in respect of any conversion for share distributions or dividends theretofore declared and paid or payable on the Common Stock. Whenever the Conversion Price is adjusted as herein provided, the Corporation shall send to the transfer agent for the 5% Preferred Stock and to the principal securities exchange, if any, on which the 5% Preferred Stock is traded, a statement signed by the Chairman of the Board, the Vice-Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer or any Vice President of the Corporation and by its Treasurer or its Secretary stating the adjusted Conversion Price determined as provided in this Paragraph (h) and any adjustment so evidenced, given in good faith, shall be binding upon all stockholders of the Corporation and upon the Corporation. Whenever the Conversion Price is adjusted, the Corporation will give notice by mail stating the adjustment and the Conversion Price at the time of, and together with, the next dividend payment to holders of record of 5% Preferred Stock. Notwithstanding the foregoing notice provisions, failure of the Corporation to give such notice or a defect in such notice shall not affect the Corporation's obligation to adjust the Conversion Price as provided herein. Whenever the Corporation shall propose to take any of the actions specified in the third paragraph or in subparagraphs (1) or (2) of the eighth paragraph of this Paragraph (h) which would result in any adjustment in the Conversion Price under this Paragraph (h), the Corporation shall cause a notice to be mailed at least 15 days prior to the date on which the books of the Corporation will close or on which record will be taken for such action, to the holders of record of the outstanding 5% Preferred Stock on the date of such notice. Such notice shall specify the action proposed to be taken by the Corporation and the date as of which holders of record of the Common Stock shall participate in any such actions or be entitled to exchange their Common Stock for securities or other property, as the case may be. Failure to mail the notice or defect in it shall not affect the validity of the transaction. Notwithstanding any other provision of this Paragraph (h), no adjustment in the Conversion Price need be made (i) for a transaction referred to in subparagraphs (1) or (2) of the eighth paragraph of this Paragraph (h) if holders of 5% Preferred Stock are to participate in the transaction on a basis and with notice that the Board of Directors determines to be fair and appropriate in light of the basis and notice on which holders of Common Stock participate in the transaction; (ii) for sales of Common Stock pursuant to a plan for reinvestment of dividends and interest or pursuant to any employee benefit plan adopted by the Corporation; or (iii) for a change in par value of the Common Stock. The Corporation from time to time may decrease the Conversion Price by any amount for any period of time if the period is at least 20 days and if the decrease is irrevocable during the period. Whenever the Conversion Price is decreased, the Corporation shall mail to holders of record of 5% Preferred Stock a notice of the decrease. The Corporation shall mail the notice at least 15 days before the date the decreased Conversion Price takes effect. The notice shall state the decreased Conversion Price and the period in which it will be in effect. A decrease of the Conversion Price does not change or adjust the Conversion Price otherwise in effect for purposes of subparagraphs (1) or (2) of the eighth paragraph of this Paragraph (h). (i) Voting Rights. The holders of 5% Preferred Stock will not have any voting rights except as set forth below or as otherwise from time to time required by law. Whenever dividends on the 5% Preferred Stock or any other class or series of Parity Dividend Stock shall be in arrears in an amount equal to at least six quarterly dividends (whether or not consecutive), the holders of the 5% Preferred Stock (voting separately as a class with all other affected classes or series of the Parity Dividend Stock upon which like voting rights have been conferred and are exercisable) will be entitled to vote for and elect two directors of the Corporation (which directors shall be in addition to those directors then serving on the Board of Directors to the extent that the number of directors permitted by the Certificate is greater than the number of such directors then serving on the Board of Directors) at any meeting of stockholders of the Corporation at which directors are to be elected held during the period in which such dividends remain in arrears. Whenever the right to elect directors shall have accrued to the holders of 5% Preferred Stock, the proper officers of the Corporation shall call a meeting for the election of such directors, such meeting to be held not less than 45 nor more than 90 days after the accrual of such right. The right of the holders of the 5% Preferred Stock to vote for two directors shall terminate when all accrued and unpaid dividends on the 5% Preferred Stock have been declared and paid or set apart for payment. The term of office of all directors so elected shall terminate immediately upon the termination of the right of the holders of the 5% Preferred Stock and such Parity Dividend Stock to vote for two directors. In connection with such right to vote, each holder of 5% Preferred Stock will have one vote for each share held. Without the consent or affirmative vote of the holders of at least two-thirds of the outstanding shares of 5% Preferred Stock, voting separately as a class with holders of any other class of the Corporation's preferred stock entitled to vote in such circumstances, the Corporation shall not authorize, create or issue any shares of any other class or series of Senior Dividend Stock or Senior Liquidation Stock. The affirmative vote or consent of the holders of at least two-thirds of the outstanding shares of the 5% Preferred Stock, voting separately as a class with holders of any other class of preferred stock entitled to vote in such circumstances, will be required for any amendment, alteration or repeal, whether by merger or consolidation or otherwise, of the Certificate if the amendment, alteration or repeal would materially and adversely affect the powers, preferences or special rights of the 5% Preferred Stock. (j) Outstanding Shares. For purposes of this Certificate of Designations, all shares of 5% Preferred Stock shall be deemed outstanding except (i) from the date fixed for redemption pursuant to Paragraph (f) hereof, all shares of 5% Preferred Stock which have been so called for redemption under Paragraph (f) if the Common Stock or funds necessary for the redemption of such shares are available; (ii) from the date of surrender of certificates representing shares of 5% Preferred Stock, all shares of 5% Preferred Stock converted into Common Stock; and (iii) from the date of registration of transfer, all shares of 5% Preferred Stock held of record by the Corporation or any subsidiary of the Corporation. (k) Partial Payments. If at any time the Corporation does not pay amounts sufficient to redeem all 5% Preferred Stock called for redemption by the Corporation on the redemption date set pursuant to Paragraph (f) hereof, then such funds which are paid shall be applied to redeem such 5% Preferred Stock as the Corporation may designate by lot. (l) Right of Action. Notwithstanding any other provision of this Certificate of Designations, if the Corporation shall default in the payment of any amount required to be paid by it in respect of the 5% Preferred Stock, each holder of 5% Preferred Stock, individually, shall have a right to bring an action for payment. IN WITNESS WHEREOF, Ultramar Corporation has caused its corporate seal to be hereunto affixed and this certificate to be signed by Patrick J. Guarino, its Senior Vice President, General Counsel and Secretary, and attested by Gregory A. Robbins, its Assistant Secretary, this 3rd day of December, 1996. ULTRAMAR CORPORATION By: /s/ PATRICK J. GUARINO Patrick J. Guarino Senior Vice President, General Counsel and Secretary Attest: By: /s/ GREGORY A. ROBBINS Gregory A. Robbins Assistant Secretary w5016.tw EX-4.5 4 Exhibit 4.5 ULTRAMAR CORPORATION SECRETARY'S CERTIFICATE I, Patrick J. Guarino, Vice President and Secretary of Ultramar Corporation, a corporation organized under the laws of the State of Delaware (the "Corporation"), hereby certify that a meeting of the Board of Directors of the Corporation was duly called and held on the 21st day of July, 1993, that at said meeting a quorum was present and voting throughout, and that the following resolution on motion duly made and seconded was unanimously adopted and is now in full force and effect. RESOLVED, that the By-laws of the Corporation are hereby amended by replacing ARTICLE VIII, SECTION 3 with the following: SECTION 3. Authorization of Indemnification. Any indemnification under this Article VIII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VIII, as the case may be. Such determination shall be made (i) by the Board of Directors by a majority vote of a quorum consisting of directors who were not parties to such action, suit or proceeding, or (ii) if such a quorum is not obtainable, or, even if obtainable, a quorum of disinterested directors so directs, by independent legal counsel in a written opinion, or (iii) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he shall be indemnified against expenses (including attorneys' fees) actually and reasonably incurred by him in connection therewith, without the necessity of authorization in the specific case. IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed as of the 22nd day of July, 1993. /s/ PATRICK J. GUARINO Patrick J. Guarino W5010.TW EX-4.6 5 Exhibit 4.6 ULTRAMAR CORPORATION SECRETARY'S CERTIFICATE I, Patrick J. Guarino, Senior Vice President, General Counsel and Secretary of Ultramar Corporation, a Delaware corporation (the "Corporation"), hereby certify that meetings of the Board of Directors of the Corporation were duly called and held on September 22, 1996, and December 3, 1996, at each of which a quorum was present and voting throughout, and that at such meetings resolutions on motions duly made and seconded were unanimously adopted and are now in full force and effect which approved the following amendments to the By-laws of the Corporation. The By-laws of the Corporation are hereby amended so that they read in their entirety as they exist on the date hereof except that: (i) Section 1 of Article IV of such by-laws reads in its entirety as follows: "SECTION 1. General. The officers of the Corporation shall be chosen by the Board of Directors and shall be a Chairman of the Board of Directors (who must be a director), a Vice Chairman of the Board of Directors (who also must be a director), a Chief Executive Officer, a President and Chief Operating Officer, a Secretary and a Treasurer. The Board of Directors, in its discretion, may also choose one or more Vice Presidents (including, without limitation, Assistant, Executive, Senior and Group), Assistant Secretaries, Assistant Treasurers and other officers. Any number of offices may be held by the same person, unless otherwise prohibited by law, the Certificate of Incorporation or these By-laws. The officers of the Corporation need not be stockholders of the Corporation nor, except in the case of the Chairman of the Board of Directors and the Vice Chairman of the Board of Directors, need such officers be directors of the Corporation."; (ii) Sections 4, 5 and 6 of Article IV of such by-laws read in their entirety as follows: "SECTION 4. Chairman and Vice Chairman of the Board of Directors. The Chairman of the Board of Directors shall preside at all meetings of the stockholders and of the Board of Directors. Except where by law the signature of the Chief Executive Officer or the President and Chief Operating Officer is required, the Chairman of the Board of Directors shall possess the same power as the Chief Executive Officer or the President and Chief Operating Officer to sign all contracts, certificates and other instruments of the Corporation which may be authorized by the Board of Directors. During the absence or disability of the Chief Executive Officer or President and Chief Operating Officer, the Chairman of the Board of Directors shall exercise all the powers and discharge all the duties of the Chief Executive Officer or President and Chief Operating Officer, as applicable. The Chairman of the Board of Directors shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-laws or by the Board of Directors. The Vice Chairman of the Board of Directors shall, during the absence or disability of the Chairman of the Board of Directors, have the powers and perform the duties of the Chairman of the Board of Directors and shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by the Board of Directors. Notwithstanding anything in these By-laws to the contrary, the Chairman of the Board of Directors and the Vice Chairman of the Board of Directors may only be removed from such offices (but not as directors) by an affirmative vote of the majority of the entire Board of Directors. "SECTION 5. Chief Executive Officer and President and Chief Operating Officer. The Chief Executive Officer shall, subject to the control of the Board of Directors and the Chairman of the Board of Directors (or during his absence or disability, the Vice Chairman of the Board of Directors), have general supervision of the business and affairs of the Corporation and shall see that all orders and resolutions of the Board of Directors are carried into effect. He shall possess the power to execute all bonds, mortgages, contracts and other instruments of the Corporation requiring a seal, under the seal of the Corporation, except where required or permitted by law to be otherwise signed and executed and except that the other officers of the Corporation may sign and execute documents when so authorized by these By-laws, the Board of Directors or the Chief Executive Officer. In the absence or disability of both the Chairman of the Board of Directors and the Vice Chairman of the Board of Directors, the Chief Executive Officer shall preside at all meetings of the stockholders and the Board of Directors. The Chief Executive Officer shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-laws or by the Board of Directors and, notwithstanding any other provision of these By-laws, the Chief Executive Officer may appoint officers of the Corporation pursuant to and in accordance with authority granted to him from time to time by the Board of Directors. The President and Chief Operating Officer (hereinafter sometimes referred to only as the "President") shall, subject to the direction and control of the Board of Directors, and the supervision of the Chairman of the Board of Directors (or during his absence or disability, the Vice Chairman of the Board of Directors) and the Chief Executive Officer, have general supervision of the business operations of the Corporation. The President and Chief Operating Officer shall, during the absence or disability of the Chief Executive Officer, have the powers and perform the duties of the Chief Executive Officer and shall also perform such other duties and may exercise such other powers as from time to time may be assigned to him by these By-laws or the Board of Directors. Notwithstanding anything in these By-laws to the contrary, the Chief Executive Officer and the President and Chief Operating Officer may only be removed from such offices by an affirmative vote of the majority of the entire Board of Directors. "SECTION 6. Vice Presidents. At the request of the Chief Executive Officer or in his absence or in the event of his inability or refusal to act (and only in the absence of the Chairman of the Board of Directors, Vice Chairman of the Board of Directors and President and Chief Operating Officer who would otherwise have the powers and perform the duties of the Chief Executive Officer), the Vice President or the Vice Presidents if there is more than one (in the order designated by the Board of Directors) shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer. Each Vice President shall perform such other duties and have such other powers as the Board of Directors from time to time may prescribe. If there be no Chairman of the Board of Directors, no Vice Chairman of the Board of Directors, no President and Chief Operating Officer and no Vice President, the Board of Directors shall designate the officer of the Corporation who, in the absence of the Chief Executive Officer or in the event of the inability or refusal of the Chief Executive Officer to act, shall perform the duties of the Chief Executive Officer, and when so acting, shall have all the powers of and be subject to all the restrictions upon the Chief Executive Officer."; and (iii) Article VIII of such by-laws reads in its entirety as follows: ARTICLE VIII Indemnification "SECTION 1. Right to Indemnification. Each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a "proceeding"), by reason of the fact that he or she is or was a director or an officer of the Corporation or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan (hereinafter an "indemnitee"), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Corporation to the fullest extent permitted or required by the Delaware General Corporation Law, as the same exists or may hereafter be amended (but, in the case of any such amendment, only to the extent that such amendment permits the Corporation to provide broader indemnification rights than such law permitted the Corporation to provide prior to such amendment), against all expense, liability and loss (including attorneys' fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such indemnitee in connection therewith; provided, however, that, except as provided in Section 3 of this Article VIII with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board of Directors of the Corporation. "SECTION 2. Right to Advancement of Expenses. The right to indemnification conferred in Section 1 of this Article VIII shall include the right to be advanced by the Corporation the expenses (including, without limitation, attorneys' fees and expenses) incurred in defending any such proceeding in advance of its final disposition (hereinafter an "advancement of expenses"); provided, however, that, if the Delaware General Corporation Law so requires, an advancement of expenses incurred by an indemnitee in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon delivery to the Corporation of an undertaking (hereinafter an "undertaking"), by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right to appeal (hereinafter a "final adjudication") that such indemnitee is not entitled to be indemnified for such expenses under this Section 2 or otherwise. The rights to indemnification and to the advancement of expenses conferred in Sections 1 and 2 of this Article VIII shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the indemnitee's heirs, executors and administrators. "SECTION 3. Right of Indemnitee to Bring Suit. If a claim under Section 1 or 2 of this Article VIII is not paid in full by the Corporation within 60 calendar days after a written claim has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 calendar days, the indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the indemnitee shall be entitled to be paid also the expense of prosecuting or defending such suit. In (i) any suit brought by the indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by the indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (ii) any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final adjudication that, the indemnitee has not met any applicable standard for indemnification set forth in the Delaware General Corporation Law. Neither the failure of the Corporation (including its Board of Directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of such suit that indemnification of the indemnitee is proper in the circum- stances because the indemnitee has met the applicable standard of conduct set forth in the Delaware General Corporation Law, nor an actual determination by the Corporation (including its Board of Directors, independent legal counsel or stockholders) that the indemnitee has not met such applicable standard of conduct, shall create a presumption that the indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the indemnitee, be a defense to such suit. In any suit brought by the indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the indemnitee is not enti- tled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation. "SECTION 4. Non-Exclusivity of Rights. The rights to indemnification and to the advancement of expenses conferred in this Article VIII shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, the Corporation's Certificate of Incorporation, By-laws, agreement, vote of stockholders or disinterested directors or otherwise. "SECTION 5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the Delaware General Corpora- tion Law. "SECTION 6. Indemnification of Employees and Agents of the Corporation. The Corporation may, to the extent authorized from time to time by the Board of Directors, grant rights to indem- nification and to the advancement of expenses to any employee or agent of the Corporation to the fullest extent of the provisions of this Article with respect to the indemnification and advancement of expenses of directors and officers of the Corporation." IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed as of December 3, 1996. /s/ PATRICK J. GUARINO Patrick J. Guarino Senior Vice President, General Counsel and Secretary W5018.TW EX-4.8 6 Exhibit 4.8 (Front side) Incorporated under the laws COMMON STOCK of the State of Delaware PAR VALUE $.01 NUMBER SHARES This Certificate is transferable in CUSIP 904000 10 6 New York, New Jersey, Toronto, Montreal See Reverse for Vancouver, Calgary and Halifax certain definitions ULTRAMAR DIAMOND SHAMROCK CORPORATION This certifies that is the owner of FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK OF ULTRAMAR DIAMOND SHAMROCK CORPORATION transferable on the books of the Company in person or by attorney on surrender of this certificate properly endorsed. This certificate is not valid until countersigned by the Transfer of Agent and registered by the Registrar. Witness the seal of the Company and the facsimile signatures of its duly authorized officers. /s/ R. R. Hemminghaus CORPORATE COUNTERSIGNED AND REGISTERED: Chairman of the Board SEAL REGISTRAR and Chief Executive Officer AND OR TRANSFER TRANSFER AGENT AND REGISTRAR Patrick J. Guarino /s/ Executive Vice President, By: By: General Counsel and Secretary Authorized Authorized Signatory Signatory REVERSE SIDE The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM - as tenants in common UNIF GIFT MIN ACT -____Custodian TENENT -- as tenants by the entireties (Cust) (Minor) JT TEN -- as joint tenants with right of under Uniform Gifts to Minors survivorship and not as tenants in common Act_________________________ (State) Additional abbreviations may also be used though not in the above list. For value received, ___________ hereby sell, Pour une contrepartie de valeur, assign and transfer unto ___________________ cede(nt) a PLEASE INSERT SOCIAL SECURITY OR OTHER NUMERO D'ASSURANCE SOCIALE QU IDENTIFYING NUMBER OF ASSIGNEE _____________________________ __________________________ _______________________________________________________________________________ PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE _______________________________________________________________________________ NOM ET ADRESSE (Y COMPRIS LE CODE POSTAL) DU CESSIONNAIRE EN CARACTERES D'IMPRIMERIE ________________________________________________________________________________ ________________________________________________________________________________ shares of the capital stock represented by the within Certificate, and do hereby irrevocably constitute and appoint _______________________________________________________________________________ actions du capital representees par le present certificat et nomme(nt) irrevocablement ________________________________________________________________________________ attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. ________________________________________________________________________________ mandatire pour transferer ces actions aux registres de la societe nomme aux presentes, avec pleins pouvolrs de substitution. Dated:_________________________ Dated:_________________________ NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. AVIS: LA SIGNATURE DU PRESENT FORMULAIRE DE TRANSFERT DOIT CORRESPONDRE EN TOUS POINTS AU NOM ECRIT AU RECTO DU PRESENT CERTIFICAT, SANS MODIFICATION NI AGRANDISSEMENT. This certificate also evidences and entitles the holder hereof to certain Rights as set forth in a Rights Agreement dated as of June 25, 1992, as it may be amended from time to time (the "Rights Agreement"), between Ultramar Diamond Shamrock Corporation and Registrar and Transfer Company, as successor Rights Agent, the terms of which are hereby incorporated herein by reference and a copy of which is on file at the principal executive offices of Ultramar Diamond Shamrock Corporation. Under certain circumstances, as set forth in the Rights Agreement, such Rights will be evidenced by separate certificates and will no longer be evidenced by this certificate. Ultramar Diamond Shamrock Corporation will mail to the holder of this certificate a copy of the Rights Agreement without charge after receipt of a request therefor. Rights beneficially owned by Acquiring Persons or their Affiliates or Associates (as such terms are defined in the Rights Agreement) and by any subsequent holder of such Rights are null and void and nontransferable. The authorized shares of Ultramar Diamond Shamrock Corporation include preferred stock. A statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of preferred stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights will be furnished by the Corporation without charge to each stockholder who so requests. Any such request is to be addressed to the Secretary of Ultramar Diamond Shamrock Corporation or to the transfer agent named on the face of this certificate. W5011.TW EX-5.1 7 Exhibit 5.1 December 31, 1996 Ultramar Diamond Shamrock Corporation 9830 Colonnade Boulevard San Antonio, Texas 78230 Re: Registration Statement on Form S-8 of Ultramar Diamond Shamrock Corporation (Registration No. ______________) Gentlemen: I am a Senior Attorney of Ultramar Diamond Shamrock Corporation (the "Company"). This letter is delivered in connection with the registration, issuance, and sale of up to an aggregate amount of 1,000,000 shares of Common Stock (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 September 22, 1996. 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 the Company's Certificate of Incorporation (the "Certificate"). 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-8 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/ TODD WALKER TODD WALKER TW:es W5013.TW EX-23.1 8 Exhibit 23.1 CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of Ultramar Diamond Shamrock Corporation of our report dated February 23, 1996, except as it pertains to the last paragraph of Note 2, for which our report is dated September 27, 1996, which appears in Exhibit 13.3 of Diamond Shamrock, Inc.'s Annual Report on Form 10-K/A for the year ended December 31, 1995. /s/ PRICE WATERHOUSE LLP PRICE WATERHOUSE LLP San Antonio, Texas December 27, 1996 w5015.TW EX-23.2 9 Exhibit 23.2 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-8), pertaining to the Diamond Shamrock, Inc. 1987 Long Term Incentive Plan and the Diamond Shamrock, Inc. Long Term Incentive Plan and to the incorporation by reference therein of our report dated February 1, 1996 with respect to the consolidated financial statements and schedules of Ultramar Corporation included in its Annual Report (Form 10-K) for the year ended December 31, 1995, filed with the Securities and Exchange Commission. /s/ ERNST & YOUNG LLP ERNST & YOUNG LLP Stamford, Connecticut December 27, 1996 W5020.TW EX-24.1 10 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that Ultramar Diamond Shamrock Corporation (the "Corporation") hereby constitutes and appoints Patrick J. Guarino, Todd Walker, and Gregory Robbins, and each of them, its true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, to sign a Registration Statement on Form S-8 for the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, up to 1,000,000 shares of Common Stock (and associated stock purchase rights) of the Corporation for issuance pursuant to the Corporation's obligations under the Long-Term Incentive Plan assumed by operation of the merger of Diamond Shamrock, Inc. with and into the Corporation effective December 3, 1996, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. ULTRAMAR DIAMOND SHAMROCK CORPORATION /s/ R. R. HEMMINGHAUS R. R. HEMMINGHAUS, CHAIRMAN AND CHIEF EXECUTIVE OFFICER Dated: December 30, 1996 W5012.TW EX-24.2 11 Exhibit 24.2 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitute and appoint Patrick J. Guarino, Todd Walker and Gregory Robbins, and each of them, their true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for them and in their name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation")), to sign a Registration Statement on Form S-8 of the Corporation for the purpose of registering, pursuant to the Securities Act of 1933, up to 1,000,000 shares of Common Stock (and associated stock purchase rights) of the Corporation for issuance pursuant to the Corporation's obligations under the Long-Term Incentive Plan assumed by operation of the merger of Diamond Shamrock, Inc. with and into the Corporation effective December 3, 1996, and to sign any or all amendments and any or all post-effective amendments to such Registration Statement, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as they might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ R. R. HEMMINGHAUS /s/ BYRON ALLUMBAUGH R. R. HEMMINGHAUS BYRON ALLUMBAUGH /s/ E. GLENN BIGGS /s/ H. FREDERICK CHRISTIE E. GLENN BIGGS H. FREDERICK CHRISTIE /s/ W. E. BRADFORD /s/ RUSSELL H. HERMAN W. E. BRADFORD RUSSELL H. HERMAN /s/ W. H. CLARK /s/ MADELEINE SAINT-JACQUES W. H. CLARK MADELEINE SAINT-JACQUES /s/ BOB MARBUT /s/ H. PETE SMITH BOB MARBUT H. PETE SMITH /s/ KATHERINE D. ORTEGA /s/ C. BARRY SCHAEFER KATHERINE D. ORTEGA C. BARRY SCHAEFER Dated: December 30, 1996 W5003.TW EX-24.3 12 Exhibit 24.3 ULTRAMAR DIAMOND SHAMROCK CORPORATION ASSISTANT SECRETARY'S CERTIFICATE I, Harold D. Mallory, do hereby certify that I am the duly appointed and acting Assistant Secretary of Ultramar Diamond Shamrock Corporation (the "Corporation"), and do further hereby certify that attached hereto as Exhibit "A" is a true and correct copy of resolutions duly adopted by the Board of Directors of the Corporation on September 22, 1996, and the same have not been amended, modified, or rescinded. WITNESS the seal of the Corporation and my signature on this 30th day of December, 1996. /s/ HAROLD D. MALLORY Harold D. Mallory Assistant Secretary Exhibit "A" RESOLVED, that the Board of Directors finds it advisable and in the best interest of the Corporation that the form, terms and provisions of the Agreement and Plan of Merger dated as of 9/22/96 (the "Merger Agreement") between the Corporation and the corporation referred to as Gem, a Delaware corporation ("Gem"), a copy of which has been submitted to this meeting and identified as Exhibit A, and the merger contemplated therein of Gem with and into the Corporation (the "Merger"), be, and they hereby are, in all respects approved and that such approval shall constitute approval for purposes of Section 203 of the Delaware General Corporation Law (the "DGCL"); and that the Chairman of the Board, the Chief Executive Officer, the President, or any Senior Vice President of the Corporation be, and each of them hereby is, authorized to execute, in the name and on behalf of the Corporation, the Merger Agreement; and be it FURTHER RESOLVED, that the amendments to the Certificate of Incorporation of the Corporation (as amended, the "Amended Certificate of Incorporation"), and the amendments to the Corporation's By-laws, all as set forth in Section 1.05 of the Merger Agreement, be, and they hereby are, in all respects approved, with such additions, deletions or changes therein and modifications thereof as are set forth in the executed Merger Agreement; and be it FURTHER RESOLVED, that the Merger Agreement and the issuance of shares of the Corporation's Common Stock shall be submitted to the stockholders of the Corporation for approval and adoption at the Special Meeting provided for in these resolutions; and be it FURTHER RESOLVED, that this Board of Directors hereby recommends to the stockholders of the Corporation that they vote for the approval and adoption of the Merger Agreement; and be it FURTHER RESOLVED, that, if the stockholders shall have voted for the approval and adoption of the Merger Agreement and the other conditions set forth in the Merger Agreement shall have been fulfilled or waived, the Chairman of the Board, the Chief Executive Officer, the President or any Senior Vice President of the Corporation be, and each of them hereby is, authorized to consummate the Merger in accordance with the Merger Agreement and to take such actions incident thereto, including if necessary and without limitation (i) issuing, in connection with the Merger and in accordance with the Amended Certificate of Incorporation, shares of the Corporation's Common Stock and shares of the Corporation's 5% Cumulative Convertible Preferred Stock (such Common and Preferred Stock, the "Merger Securities"), (ii) executing, verifying, delivering and filing or causing to be filed a certificate of designation with respect to the Corporation's 5% Cumulative Convertible Preferred Stock with the Secretary of State of the State of Delaware, in accordance with applicable provisions of the DGCL, in such form, with such additions, deletions or changes therein and modifications thereof, if any, as the officer executing the same shall approve (the execution thereof by any such officer to be conclusive evidence of his or her approval thereof) and (iii) executing, verifying, delivering and filing or causing to be filed a certificate of merger with the Secretary of State of the State of Delaware, in accordance with applicable provisions of the DGCL, in such form, with such additions, deletions or changes therein and modifications thereof, if any, as the officer executing the same shall approve (the execution thereof by any such officer to be conclusive evidence of his or her approval thereof). 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