-----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, Dp/7Q0DHNMwWQvyU1CdExmN0F4aS6GtX0My8n2CjCnpBrBGhgUhhtbHR8r3N/NLP COv3uwEW6q9m5giSHJwWXg== 0000887207-97-000065.txt : 19970526 0000887207-97-000065.hdr.sgml : 19970526 ACCESSION NUMBER: 0000887207-97-000065 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19970523 EFFECTIVENESS DATE: 19970523 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: 333-27703 FILM NUMBER: 97613485 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 May 22, 1997 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) ULTRAMAR DIAMOND SHAMROCK CORPORATION NONQUALIFIED 401(k) 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 Proposed Proposed maximum maximum Title of Amount offering aggregate Amount of securities to to be price per offering registra- be registered registered share price tion fee Common Stock, 101,015 $31.125 (2) $3,144,091.88 (2) $1084.18 (2) par value $.01 per share(1) (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 value of shares of Common Stock of Ultramar Diamond Shamrock Corporation (the "Company") of $31.125 per share, which is the average of the high and low sale prices thereof on the Composite Tape of the New York Stock Exchange on May 16, 1997. 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 1996 Annual Report on Form 10-K for the fiscal year ended December 31, 1996, filed pursuant to Section 13(a) of the Securities Exchange Act of 1934, as amended (the "1934 Act"); (b) The Company's Quarterly Reports on Form 10-Q for the fiscal quarter ended March 31, 1997, and all other reports, if any, filed by the Company pursuant to Section 13(a) or 15(d) of the 1934 Act since the end of the fiscal year ended December 31, 1996; (c) The Company's Current Report on Form 8-K dated March 4, 1997, and the Company's Amendment to Current Report on Form 8-K/A dated March 4, 1997; 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 schedule of Ultramar Diamond Shamrock Corporation appearing in the Company's Annual Report (Form 10-K) for the year ended December 31, 1996, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference, which, as to all periods presented, is based in part on the report of Price Waterhouse LLP, independent accountants. Such financial statements are, and certain audited financial statements to be included in subsequently filed documents will be, incorporated herein and therein in reliance upon the reports of Ernst & Young LLP and Price Waterhouse LLP, pertaining to such financial statements and schedule (to the extent covered by consents filed with the Securities and Exchange Commission) given upon the authority of such firms as experts in accounting and auditing. 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., Corporate Counsel for the Company. Mr. Walker beneficially owns shares of the Common Stock of the Company as a result of his participation in various Company employee benefit plans. 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 Nonqualified 401(k) Plan, Amended and Restated Effective January 1, 1997 4.2 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)* 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 Powers of Attorney of Directors and Officers of the Company 24.2 Certificate regarding resolutions of the Board of Directors of the Company * Each document marked by an asterisk is incorporated herein by reference to the designated document previously filed with the Commission. Item 9. Undertakings. A. The Company hereby undertakes (1) to file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement (a) to include any prospectus required by Section 10(a) (3) of the Securities Act of 1933, as amended (the "1933 Act"), (b) to reflect in the prospectus any facts or events arising after the effective date of this Registration Statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, 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 22nd day of May, 1997. 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 May 22, 1997 and Chief Executive Officer *H. Pete Smith Executive Vice May 22, 1997 President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) *Byron Allumbaugh Director May 22, 1997 *E. Glenn Biggs Director May 22, 1997 *W. E. Bradford Director May 22, 1997 *H. Frederick Christie Director May 22, 1997 *W. H. Clark Director May 22, 1997 *Jean Gaulin Vice-Chairman of the Board, President, and Chief Operating Officer May 22, 1997 *Russel H. Herman Director May 22, 1997 *Bob Marbut Director May 22, 1997 *Katherine D. Ortega Director May 22, 1997 *Madeleine Saint-Jacques Director May 22, 1997 *C. Barry Schaefer Director May 22, 1997 *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 May 22, 1997 INDEX TO EXHIBITS Exhibit No. Description 4.1 Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan, Amended and Restated Effective January 1, 1997 4.2 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)* 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 Powers of Attorney of Directors and Officers of the Company 24.2 Certificate regarding resolutions of the Board of Directors of the Company * Each document marked by an asterisk is incorporated herein by reference to the designated document previously filed with the Commission. W3302.lW EX-4.1 2 ULTRAMAR DIAMOND SHAMROCK CORPORATION NONQUALIFIED 401(k) PLAN AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1997 1. Purpose of Plan. It is the purpose of this Plan to enable each employee who is in a select group of management and who is considered a highly compensated employee (as defined by the Internal Revenue Service) to defer part of Compensation payable for future services to be performed by such employee as an Executive of the Corporation. For 1997, an employee who earns at least Eighty Thousand and one/100 Dollars ($80,000.01) in 1996 in compensation is considered a highly compensated employee. The dollar amount may be adjusted each year by the Internal Revenue Service for cost of living increases in accordance with Internal Revenue Code Sections 414(q) and 415(d)). However, employees who were employed by Ultramar prior to the merger of Ultramar and Diamond Shamrock, Inc. shall not be eligible to participate in this Plan until January 1, 1998. 2. Definitions. The following definitions are used throughout the Plan: (a) "Account" means the account, described in Section 7 below, to which is credited Compensation deferred in accordance with this Plan. (b) "Administrator" means the person designated by the Board of Directors or by the committee described by Section 2(d) hereof with power and authority to construe, interpret and administer this Plan pursuant to Section 12 below. (c) "Benefit Review Committee" means the committee appointed by the President, Chairman of the Board and Chief Executive Officer of the Corporation pursuant to Section 12(c) hereof with power and authority to construe the Plan and determine all questions of eligibility and interpretation under the Plan pursuant to Section 12(c) below, except with respect to non-employee Directors. (d) "Beneficiary" means the person or persons designated from time to time by a Participant to receive payments under this Plan after the Participant's death, using the Notice of Beneficiary Designation, a form of which is attached as Exhibit C, or some other method of designation which provides Beneficiary designation information similar to that in such Notice for Beneficiary Designation. (e) "Board" or "Board of Directors" means the Board of Directors of the Corporation or any committee of such Board of Directors to the extent that such committee has been delegated authority to act on behalf of the Board of Directors with respect to this Plan. (f) "Cause" means failure to return from a leave of absence, criminal activity, or willful misconduct or gross negligence in the performance of duties or in the observation of written Corporation personnel policies applicable to the Executive. (g) "Change in Control" will be deemed to have occurred when (1) a report is filed on Schedule 13D or Schedule 14D-1 (or any successor schedule, form or report), each as promulgated pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), disclosing that any person (as the term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has become the beneficial owner (as the term "beneficial owner" is defined under Rule 13d-3 or any successor rule or regulation promulgated under the Exchange Act) of securities representing more than 25% of the combined voting power of the then-outstanding voting securities of the Corporation and such acquisition has not been authorized, approved or recommended by majority vote of the Board of Directors prior to the date of the filing of such report, or (2) such other event has occurred which the Board of Directors may, in its sole discretion, by majority vote determine to constitute a change in control. (h) "Code" means the Internal Revenue Code of 1986, as amended. (i) "Common Stock" means whole shares of common stock of the Corporation. (j) "Compensation" means payments that may be made by the Corporation to a Director Participant for services on the Corporation's Board of Directors or on any committee of the Board, including retainer fees to be paid in cash and meeting fees, and payments that may be made by the Corporation to an Executive Participant for services rendered to the Corporation, including base salary and annual performance incentives. (k) "Corporation" means Ultramar Diamond Shamrock Corporation, a Delaware corporation, or, where the context requires, any affiliate or subsidiary of Ultramar Diamond Shamrock Corporation. Notwithstanding the foregoing, prior to December 3, 1996, the term Corporation shall mean Diamond Shamrock, Inc., or, where the context requires any affiliate or subsidiary of Diamond Shamrock, Inc. (l) "Director" means a member or honorary member of the Board of Directors of the Corporation. (m) "Director Participant" means any Director who is an employee compensated for his services on the Board of Directors, or on any committee of the Board, and who participates in this Plan. Notwithstanding the foregoing, no Director Participant who is not an employee of the Corporation can make an Elective Deferral under the terms of this Plan after December 3, 1996. (n) "Effective Date" of this restatement means January 1, 1997. The original plan was effective January 1, 1996. (o) "ERISA" means the Employee Retirement Income Security Act of 1974, as amended. (p) "Executive" means any employee of the Corporation who is in a select group of management and who is a highly compensated employee ( as defined by the Internal Revenue Service). For 1997, an employee who earns at least Eighty Thousand and one/100 Dollars ($80,000.01) in 1996 in compensation is considered a highly compensated employee. The dollar amount may be adjusted each year by the Internal Revenue Service for cost of living increases in accordance with Internal Revenue Code sections 414(q) and 415(d)). (q) "Executive Participant" means any Executive who participates in this Plan. (r) "401(k) Plan" means the Diamond Shamrock, Inc. 401(k) Retirement Savings Plan. (s) "Notice of Beneficiary Election" means the notice provided for in Section 12 below. (t) "Notice of Election" means the notice provided for in Section 5 below. (u) "Participant" means any Director Participant or Executive Participant as the case may be. (v) "Plan" means the Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan, as amended. The original plan was referred to as the Diamond Shamrock, Inc. Nonqualified 401(k) Plan. (x) "Year of Service" means, with respect to a Director Participant, a 12-consecutive-month period during which a Director Participant served as a separately compensated member of the Board of Directors. With respect to an Executive Participant, service and year of service shall be determined in the same manner as they are determined in the 401(k) Plan. 3. Eligibility. (a) Any Director of the Corporation who is also an employee of the Corporation shall be eligible to participate in this Plan; provided, however, that any employee Director who initially is compensated after January 1, in any calendar year, shall become eligible to participate in this Plan beginning January 1 of the following calendar year. (b) Any Executive of the Corporation shall be eligible to participate in this Plan; provided, however, that any person who initially becomes an Executive after January 1 in any calendar year shall become eligible to participate in this Plan beginning January 1 of the following calendar year. (c) Effective after December 3, 1996, a Director of the Corporation who is not an employee of the Corporation shall not be eligible to make Elective Deferrals under the terms of the Plan; however, the account of such a Director Participant shall continue to be maintained under the terms of the Plan. 4. Account Credits. Accounts will be credited with Elective Deferrals and Matching Contributions. (a) Elective Deferrals. "Elective Deferrals" are amounts credited to the Accounts of Participants who have agreed to defer receipt of their base salary and/or bonus. Executive Participants may defer from 1% to 20% of base salary and from 1% to 100% of annual incentive bonus. The percentage of base salary and annual incentive bonus deferred must be the same up to 6%. (b) Matching Contributions. "Matching Contributions" are additional amounts credited to the accounts of Participants who have made Elective Deferrals. The Corporation will credit the Participant's Account with an amount equal to 50% of the Participant's Elective Deferral which is not in excess of 6% of Compensation. 5. Manner of Election. (a) Any Executive wishing to participate in this Plan must file with the Administrator a written notice on the Notice of Election, a form of which is attached as Exhibit A, electing to defer payment of such person's Compensation as may be permitted under this Plan. An election shall be effective with respect to Compensation earned during the first calendar year that commences after the date of filing of the Notice of Election and, except to the extent such election is subsequently modified or terminated as provided below, subsequent calendar years. (b) An election may be modified by filing with the Administrator a new Notice of Election on or before the December 31 immediately preceding the calendar year for which such modification is to be effective. No modification shall be effective with respect to Compensation earned prior to the date the modification is received by the Administrator or the effective date of the new Notice of Election, whichever is later. (c) An election may be terminated by the filing with the Administrator of a Notice of Termination, a form of which is attached as Exhibit B, on or before the December 31 immediately preceding the first calendar year for which such termination is to be effective. No termination shall be effective with respect to Compensation earned prior to the date the Notice of Termination is received by the Administrator or the effective date of the Notice of Termination, whichever is later. An election shall terminate on the date a person ceases to be an Executive effective for Compensation earned on or after such date. An election shall also terminate on the date an Executive terminates employment with the Corporation or a Director ceases to be a Director, as the case may be, effective for Compensation earned on or after such date. (d) A person for whom an election is terminated may thereafter file a new Notice of Election for future calendar years for which such person is eligible to participate in this Plan. 6. Deemed Investment of Contributions. The Corporation may allow each Participant to elect one or more deemed investment funds established by the Corporation in which Elective Deferrals will be deemed to be invested. Matching Contributions will be deemed to be invested, on a pro rata basis, in the same deemed investment funds in which Elective Deferrals are deemed to be invested. 7. Participant Accounts and Reports to Participants. (a) The amount of any Elective Deferral and Matching Contribution shall be credited to an Account maintained by the Corporation on its books in the name of the Participant. (b) The balance of the Account will be increased or decreased to reflect income, expenses, gains, and losses deemed attributable to the Account. (c) The Administrator shall cause the Corporation to keep an accurate record of the amounts credited to the Account of each Participant, and as of the end of each calendar quarter shall deliver to each Participant a written statement of such Participant's Account. 8. Vesting. Participants are 100% vested in Elective Deferrals and Matching Contributions. 9. Participants are Unsecured Creditors. (a) All rights, title and interest in the balance credited to the Account of a Participant shall remain at all times solely as the Corporation's unsecured contractual obligation under this Plan. Neither a Participant nor any other person, including, without limitation, any Beneficiary shall have any right, title or interest of any kind, by reason of this Plan, in any investment deemed to be made on behalf of a Participant or in any specific assets of the Corporation, the Plan, or any trust other than the Corporation's unsecured and unfunded obligation to make the payment described in this Plan. (b) Notwithstanding the provisions of Section 9(a) hereof, the Corporation may transfer to the trustee of one or more trusts established for the benefit of one or more Participants' assets from which all or a portion of the benefits provided under the Plan will be satisfied, provided that such assets held in trust shall at all times be subject to the claims of general unsecured creditors of the Corporation and no Participant shall at any time have a prior claim to such assets. 10. Annual Distributions. (a) In each year commencing after 1997, a distribution shall be made to all Participants who made Elective Deferrals in the prior year. Such distribution shall be equal to the maximum amount of elective deferrals that the Participant could have deferred to the 401(k) Plan in the prior year and the maximum amount of matching contributions that could have been credited to the Participant's account in the 401(k) Plan in the prior year. Such distribution shall be made to the Participant no later than March 31 of that year. (b) The balance of a Participant's Account shall be appropriately reduced to reflect distributions made hereunder. 11. Payment. (a) Except in the case of the retirement, disability or death of a Participant, a distribution of such Participant's Account balance shall commence as of the earlier of: (i) to the extent practicable, in the sole discretion of the Administrator, the last day a Director Participant is a Director or an Executive Participant is an employee of the Corporation, but not later than the last day of the month following the date a Director Participant ceases to be a Director or an Executive Participant ceases to be an employee of the Corporation; or (ii) any date specified by such Participant on the Notice of Election for distribution of such Participant's Account (which specified date is not after the January 1 following the calendar year in which such Participant reaches age 70). In the case of a distribution by reason of (i) above, such distribution shall be in the form of a lump sum, regardless of the election of the Participant on the Notice of Election. A non- employee Director Participant who continues service with the Corporation after December 3, 1996 shall not be considered to cease to be a Director because of the merger of Diamond Shamrock, Inc. and Ultramar Corporation. (b) In the event of a Participant's retirement or disability, a distribution of such Participant's Account balance shall commence as of the later of: (i) to the extent practicable, in the sole discretion of the Administrator, the last day a Director Participant is a Director or an Executive Participant is an employee of the Corporation, but not later than the last day of the month following the date a Director Participant ceases to be a Director or an Executive Participant ceases to be an employee of the Corporation; or (ii) any date specified by such Participant on the Notice of Election for distribution of such Participant's Account (which specified date is not after the January 1 following the calendar year in which such Participant reaches age 70). In the case of distribution by reason of this Section 11(b), such distribution shall be in the form elected by the Participant on the Notice of Election. A non-employee Director Participant who continues service with the Corporation after December 3, 1996 shall not be considered to cease to be a Director because of the merger of Diamond Shamrock, Inc. and Ultramar Corporation. (c) In the event of a Participant's employment or services as a Director are terminated following a Change in Control, the Participant's Account shall be distributed in a lump sum to the Participant withing sixty (60) days of such termination. (d) In the event of a Participant's death, the balance of the Account shall be distributed in a lump sum to the Beneficiary designated pursuant to Section 12 below. The lump sum payment shall be paid as of the last day of the month following the Participant's date of death. (e) Distributions from the Plan will be made in the form of cash. Distributions will be made to the Participant or, in the event of such Participant's death, to the designated Beneficiary, in accordance with the Participant's election and Section 12 below. (f) On each date for an installment distribution, there shall be distributed to the Participant an amount equal to the sum of the balance then credited to such Participant's Account multiplied by a fraction, the numerator of which is one and the denominator of which is the number of remaining installments. (g) Notwithstanding the provisions of Sections 11(a), (b), (c), (d) and (e) hereof, the person or group designated in clause (i), (ii) or (iii), below, as appropriate, in its absolute discretion exercised in good faith, may accelerate the rate of distribution but only in the case of unanticipated severe financial hardship caused by circumstances over which the Participant has no control, and only to the extent necessary to alleviate such financial hardship. (i) In the case of a Director Participant, an ad hoc committee of the Board consisting of those members of the Compensation Committee of the Board who are not Participants in the Plan. If all the members of the Compensation Committee participate in the Plan, such decision shall be made by the Board; however, no member of the Board shall participate in any such decision affecting uniquely such member as a Participant. (ii) In the case of an Executive Participant, the Administrator. (iii) Notwithstanding clause (i) or (ii), above, if one or more trusts have been established pursuant to Section 9 (b) hereof, to the extent assets in such trust or trusts are available therefor, the trustee of the trust. (h) The balance of a Participant's Account shall be appropriately reduced in accordance with this Section 11 to reflect distributions made hereunder. (i) Any election with respect to the distribution of Compensation deferred for a given period pursuant to this Plan shall be irrevocable. (j) The balance of a Participant's Account may be reduced by the amount of any indebtedness of such Participant to the Corporation at the time of distribution. Failure to reduce any payment to a Participant will not constitute waiver of the Corporation's claim for such indebtedness. (k) Notwithstanding the foregoing provisions of this Section 11, the Corporation shall make provision for the withholding of any Federal taxes that may be required to be withheld by the Corporation in connection with the payments due hereunder. 12. Beneficiary Designation. A Participant may designate in writing any person or persons to whom payments are to be made if the Participant dies before receiving payment of all amounts due under this Plan and the proportion or proportions in which distributions are to be made to each such person, using the Notice of Beneficiary Designation, a form of which is attached as Exhibit C, or some other method of designation which provides Beneficiary designation information similar to that in such Notice of Beneficiary Designation. A Participant may designate a Beneficiary other than a spouse only if the spouse consents in writing as witnessed by a notary public. A Beneficiary designation will be effective only after the Notice of Beneficiary Designation or other designation is filed with and accepted by the Administrator while the Participant is alive and, to the extent indicated by the Participant in the Notice of Beneficiary Designation or other designation, will cancel all beneficiary designations signed and filed earlier by such Participant. Any such designation may be terminated or modified from time to time by the Participant. If and to the extent that a Participant fails to designate a Beneficiary or if all of the Beneficiaries of the Participant die before the death of the Participant or before complete payment of all amounts credited to the Participant's Account under this Plan, the remaining unpaid amount shall be paid in one lump sum to the estate of the last to die of the Participant or the Participant's Beneficiaries. 13. Administration of the Plan. (a) Except as provided in Section 11(f), full power and authority to construe, interpret and administer this Plan shall be vested in the Administrator, who may from time to time adopt any rules or regulations the Administrator determines are necessary or appropriate. If there is no Administrator, the power and authority of the Administrator shall rest with Board; however, no member of the Board shall participate in any decision affecting uniquely such member as a Participant. Decisions of the Administrator, the ad hoc committee described in Section 11(f) and the Board made in good faith, shall be final, conclusive and binding upon all parties. (b) In the absence of bad faith or gross neglect of duty, neither the Administrator nor any member of the Benefit Review Committee, Compensation Committee, or Board of Directors shall have any liability to the Corporation or to any other person, firm or corporation arising out of or connected with the administration of this Plan for any decision made respecting this Plan or its administration. (c) The President, Chairman of the Board and Chief Executive Officer of the Corporation shall appoint a Benefit Review Committee consisting of not less than three nor more than five persons, having the administrative responsibilities and discretionary authority described in this Section 13. The Benefit Review committee has full power and authority to construe the Plan and determine all questions of eligibility and interpretation under the Plan, except with respect to non- employee Directors, in which case the Compensation Committee of the Board of Directors has full power and authority to construe the Plan and determine all questions of eligibility and interpretation under the Plan. The determination of the Compensation Committee shall be final and binding, and not subject to Subsection (d), below. (d) The Plan and any claims of all Participants, with the sole exception of non-employee Directors, arising from the Plan or in any way related to the Plan, are subject to and governed by the Ultramar Diamond Shamrock Corporation Dialogue Dispute Resolution Program ("Dialogue"). If a claim has been appealed from the Administrator to the benefit review committee and the claimant desires to appeal the decision of the Benefit Review Committee, such appeal must be conducted solely within the limitations and procedures of Dialogue. 14. Amendment or Discontinuance of Plan. At the sole discretion of the Board this Plan may be discontinued or changed at any time. Upon such discontinuance, the vested amounts credited to the Account of any Participant shall be distributed in satisfaction of the obligations of the Corporation under this Plan, in the manner selected at the option of the Board or at the option of the Administrator if so directed by the Board, as follows: (a) The Account balance may be distributed in a lump sum as of the date of discontinuance in a manner consistent with Section 11 hereof. The lump sum payment shall be made on the last day of the month following the date of discontinuance; or (b) The Account balance may be distributed in accordance with the Notice of Election; or (c) Commencing on the last day of the month following the date of discontinuance, the Account balance may be distributed in no more than ten annual installments, calculated in the same manner as payments under Section 11(e). Notwithstanding the foregoing provisions of this Section 14, the Board may make any change in this Plan that, under all the circumstances, is beneficial and equitable to the Participants and is consistent with the spirit and purposes of this Plan or is required to protect the tax-deferred status of the Plan. However, no member of the Board who is a Participant in the Plan shall participate in any such decision affecting uniquely such member as a Participant. The Plan is intended to provide benefits for "management or highly compensated" employees within the meaning of Sections 201, 301 and 401 of ERISA, and therefore to be exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Accordingly, the Plan shall terminate and no further benefit shall accrue hereunder in the event it is determined by a court of competent jurisdiction or by an opinion of counsel to the Corporation that such balance of the Plan constitutes an employee pension benefit plan within the meaning of Section 3(2) of ERISA, which is not so exempt. In addition, in the absolute discretion of the Board, the vested benefit of each Participant accrued under such balance of the Plan on the date of termination shall be paid immediately to such Participant in a lump sum. Alternatively, the Plan shall refund Elective Deferrals and earnings in a lump sum if legislative changes require refunds to protect the tax-deferred status of the Plan. 15. Miscellaneous. (a) Except insofar as permitted by applicable law, no sale, transfer, alienation, assignment, pledge, collateralization or attachment of any benefits under the Plan shall be valid or recognized by the Corporation. The Participant, his spouse and his designated Beneficiary shall not have any power to hypothecate, mortgage, commute, modify or otherwise encumber in advance of any of the benefits payable hereunder, nor shall any of said benefits be subject to seizure for the payment of any debts, judgements, alimony, maintenance owed by the Participant or his or her Beneficiary, or be transferable by operation of law in the event of bankruptcy, insolvency, or otherwise. Notwithstanding the foregoing, the Corporation may, if the Committee so determines in its sole discretion, follow the terms of any court order issued in connection with any domestic relations proceeding including but not limited to marital dissolution or child support. (b) The Plan shall be binding upon the Corporation, its assigns, and any successor company which shall succeed to substantially all of its assets and business through merger, acquisition or consolidation, and upon a Participant, his Beneficiary, assigns, heirs, executors and administrators. (c) The terms and conditions of the Plan shall not be deemed to constitute a contract or employment between the Corporation and a Participant. Nothing in this Plan shall of itself be deemed to give a Participant the right to be retained in the service of the Corporation or to interfere with any right of the Corporation to discipline or discharge the Participant at any time. (d) A Participant shall cooperate by furnishing any and all information reasonably requested by the Corporation, the Board or the Administrator, and take such other actions as may be requested in order to facilitate the administration of the Plan and the payment of benefits hereunder. (e) In case any provision of this Plan shall be found illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but the Plan shall be construed and enforced as if such illegal and invalid provision had never been included herein. (f) Any Notice which shall be or may be given under the Plan shall be in writing and shall be mailed by United States mail, postage prepaid. If Notice is to be given to the Corporation (or the Board or the Administrator), such Notice shall be addressed to the Corporation at P.O. Box 696000, San Antonio, Texas 78269-6000, Attention: Vice President, Human Resources; if Notice to a Participant, addressed to the last known address on the Corporation's personnel records. Any Notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Participant. Any party may, from time to time, change the address to which notices shall be mailed by giving written Notice of such new address. (g) The interest in the benefits hereunder of a spouse of a Participant who has predeceased the Participant shall automatically pass to the Participant and shall not be transferable by such spouse in any manner, including but not limited to such spouse's will, nor shall such interest pass under the laws of intestate succession. (h) The benefits provided for a Participant and Participant's Beneficiary under the Plan are in addition to any other benefits available to such Participant under any other plan or program for employees of the Corporation. The Plan shall supplement and shall not supersede, modify or amend any other such plan or program except as may otherwise be expressly provided herein. (i) The payment of benefits under the Plan to a Participant or Beneficiary shall fully and completely discharge the Corporation and the Board from all further obligations under this Plan with respect to the portion of the benefits so paid. (j) If any action at law or in equity is necessary by a Participant or Beneficiary to enforce the terms of the Plan, the Participant or Beneficiary shall be entitled to recover reasonable attorney's fees, costs and necessary disbursements in addition to any other relief to which that party may be entitled. (k) (i) Unless the context clearly indicates otherwise, (A) masculine pronouns shall include the feminine and singular words shall include the plural and vice versa; (B) any reference to a section of the Code or ERISA, any regulation promulgated under the Code or ERISA or any plan (except this Plan) shall refer also to any successor provision to such section, and (C) any reference to a plan shall refer also to such plan as amended from time to time. (ii) Titles and headings of the articles and sections of the Plan are included for ease of reference only and are not to be used for the purpose of construing any portion or provision of the Plan document. (l) This instrument and any Notice may be executed in one or more counterparts, each of which is legally binding and enforceable. (m) Except to the extent other instruments are incorporated herein by reference or there are amendments made to this Plan in the manner specified by Article 13 hereof, this instrument constitutes the entire Plan. 16. Governing the Law. To the extent not preempted by Federal law, the provisions of this Plan shall be interpreted and construed in accordance with the laws of the State of Texas. 17. Effective Date. The effective date for this Plan shall be January 1, 1997. Ultramar Diamond Shamrock Corporation By: /s/ Timothy J. Fretthold Executive Vice President Name (Print) Exhibit A Notice of Election for Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan 1. Pursuant to the provisions of the Plan, I elect to have compensation payable to me for services to Ultramar Diamond Shamrock Corporation deferred in the manner specified below. I understand that this election shall be irrevocable as to compensation earned by me following the filing and effectiveness of this election, except to the extent I file a subsequent Notice of Election or Notice of Termination with the Administrator applicable to compensation earned by me in a calendar year subsequent to such filing. I also understand that no modification or termination shall be effective with respect to compensation deferred prior to the calendar year following the date any subsequent Notice of Election or Notice of Termination is received by the Administrator. 2. Percentage of compensation deferred (Retirement Account). % of Compensation-Base Salary and Annual Incentive Bonus (minimum amount is 1% and maximum amount is 20%). The percentage of Base Salary and Annual Incentive Bonus deferred must be the same up to 6%. If you defer at least 6% of your total compensation and wish to defer a greater percentage of Annual Incentive Bonus than of Base Salary, please note this percentage below: % of Annual Incentive Bonus (total amount, including percent deferred above; maximum amount is 100%). 3. Percentage of compensation deferred (Fixed Account). % of Compensation-Base Salary and Annual Incentive Bonus (minimum amount is 1% and maximum amount for Retirement and Fixed Accounts combined is 20%). % of Annual Incentive Bonus (total amount, including percent deferred above; maximum amount is 100%). 4. Annual Distributions (a) Defer to the 401(k) Plan the distribution from the Nonqualified Plan equal to the maximum amount of elective deferrals and matching contributions that could have been credited to the 401(k) Plan in the prior year. I understand that this distribution will not be included in my gross income in the prior year. (b) Distribute to me in cash the distribution from the Nonqualified Plan equal to the maximum amount of elective deferrals and matching contributions that could have been credited to the 401(k) Plan in the prior year. I understand that this amount will be included in my gross income in the prior year. 5. Deemed Investment Funds % Ultramar Diamond Shamrock % Fidelity Advisor Income Corporation Common Stock and Growth Fund Fund % CIGNA Guaranteed Long Term % Fidelity Advisor Fund (1) Strategic Opportunities Fund % Fidelity Advisor Growth %Warburg Pincus Advisor Opportunities Account Emerging Growth Fund % Vanguard S&P 500 Index % Warburg Pincus Advisor Fund (2) International Equity Fund % INVESCO Industrial Income Fund % Twentieth Century Ultra Fund (1) Any funds in this account which may be transferred to the Ultramar Diamond Shamrock Corporation 401(k) Retirement Savings Plan will initially be deposited in the CIGNA Fixed Income Account. (2) Any funds in this account which may be transferred to the Ultramar Diamond Shamrock Corporation 401(k) Retirement Savings Plan will initially be deposited in the CIGNA Stock Market Index Account. 6. Date of commencement of Retirement Account payments. Except in the case of retirement, disability or death of a Participant, distribution will be made, pursuant to Section 11(a) of the Plan, on the earlier of: (a) the date an Executive Participant ceases to be an employee of the Corporation, or (b) the commencement date specified below (select one): retirement. the January 1 following the calendar year in which I retire. the January 1 following the calendar year in which I reach age 70. the following date (which shall in no event be after the January 1 following the calendar year in which I reach age 70) . In the event of a Participant's retirement or disability, distribution will commence, pursuant to Section 11(b) of the Plan, on the later of (a) the date an Executive Participant ceases to be an employee of the Corporation or (b) the date selected above. 7. Method of Retirement Account payment (select one) (see Note 2 at end of Notice). Lump sum, or Annual installments over a period of years (not over ten). 8. Date of commencement of Fixed Account lump sum payment. Except in the case of retirement, disability or death of a Participant, distribution will be made, pursuant to Section 11(a) of the Plan, on the earlier of: (a) the date an Executive Participant ceases to be an employee of the Corporation, or (b) the following date (which shall in no event be after the January 1 following the calendar year in which I reach age 70) . In the event of a Participant's retirement or disability, distribution will commence, pursuant to Section 11(b) of the Plan, on the later of (a) the date an Executive Participant ceases to be an employee of the Corporation or (b) the date selected above. Notes to Notice of Election 1. Participants should be aware that a deferral may reduce the benefit payable under the Ultramar Diamond Shamrock Corporation Career Average Retirement Income Plan (the "CARIP") and the Ultramar Diamond Shamrock Corporation Employee Stock Ownership Plan I (the "ESOP I") and the Ultramar Diamond Shamrock Corporation Employee Stock Ownership Plan II (the "ESOP II"). Any amount deferred to a date following termination of employment will not be taken into account for purposes of computing the CARIP, ESOP I, and the ESOP II qualified pension benefits. As a result, the CARIP, ESOP I, and ESOP II qualified pension benefits will be less than if the deferral had been paid prior to the Participant's termination of employment. Such "lost" benefits will be paid pursuant to the Ultramar Diamond Shamrock Corporation Excess Benefits Plan. Amounts paid pursuant to the Excess Benefits Plan are not adjusted for the loss of any tax benefits which would have been realized had such benefits been paid under a qualified plan. 2. All distributions under the Plan represent taxable income to the Participant and may not be rolled over to an Individual Retirement Account. 3. Participants who no longer qualify as highly compensated employees as defined in the 401(k) Plan will no longer be eligible to make Elective Deferrals to this Plan. Date Signature Date Notice of Election received by the Administrator: Date Signature Name (Print) EXHIBIT B Notice of Termination for Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan Pursuant to the provisions of the Plan, I hereby terminate my participation in the Plan effective as of January 1, 19 . Date Signature Date Notice of Termination received by the Administrator: Date Signature Administrator Name (Print) Exhibit C Notice of Beneficiary Designation for Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan (the "Plan") Any amounts credited to my account under the Plan unpaid at my death shall be paid to the following beneficiary or beneficiaries, in the proportions designated: % Name Proportion Relationship Address Name Proportion Relationship Address This designation supersedes any previous beneficiary designation made by me with respect to the amounts credited to my account under the Plan. I hereby reserve the right to terminate or modify any designation made by this Instrument, at any time or from time to time. Participant's Date Signature Witness' Date Signature A Participant may designate a Beneficiary other than a spouse only if the spouse consents in writing as witnessed by a notary public. Spousal Waiver I understand that my signature below acknowledges my full consent to the above beneficiary designation which limits my claim to any benefits from the Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan in the event of the death of my spouse, and my signature is notarized below. Spouse's Date Signature Notarization of Spouse's Signature The State of County of Subscribed and Sworn to me this day of , 19 . Seal Signature Notary Public My commission expires Date Notice of Designation received by the Administrator: Date Signature Administrator Note: Other methods of beneficiary designation which provide beneficiary designation information similar to that in this Instrument may be used instead of this Instrument. EX-5.1 3 May 22, 1997 Ultramar Diamond Shamrock Corporation 9830 Colonnade Boulevard San Antonio, Texas 78230 Re: Ultramar Diamond Shamrock Corporation Nonqualified 401(k) 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 May 22, 1997 under the Securities Act of 1933, as amended, a Registration Statement on Form S-8 (the "Registration Statement") for the purpose of registering 101,015 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 an 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 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 w3303.lw EX-23.1 4 Exhibit 23.1 Consent of Independent Accountants We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated February 7, 1997 with respect to the consolidated financial statements and financial statement schedule of the Diamond Shamrock operations of Ultramar Diamond Shamrock Corporation included in Ultramar Diamond Shamrock Corporation's Annual Report on Form 10-K for the year ended December 31, 1996. We also consent to the references to us under the heading "Experts" in such Registration Statement. /s/ PRICE WATERHOUSE LLP PRICE WATERHOUSE LLP San Antonio May 22, 1997 w3285a.LW EX-23.2 5 Consent of Independent Accountants We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-8) pertaining to the Ultramar Diamond Shamrock Corporation Nonqualified 401(k)Plan and to the incorporation by reference therein of our report dated February 7, 1997 with respect to the consolidated financial statements and schedule of Ultramar Diamond Shamrock Corporation (formerly Ultramar Corporation) included in its Annual Report (Form 10-K) for the year ended December 31, 1996, filed with Securities and Exchange Commission. /s/ ERNST & YOUNG LLP ERNST & YOUNG LLP San Antonio May 22, 1997 w3316.LW EX-24.1 6 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ R. R. HEMMINGHAUS R. R. Hemminghaus Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ H. PETE SMITH H. Pete Smith Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ BYRON ALLUMBAUGH Byron Allumbaugh Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ E. GLENN BIGGS E. Glenn Biggs Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ W. E. BRADFORD W. E. Bradford Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ H. FREDERICK CHRISTIE H. Frederick Christie Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ W. H. CLARK W. H. Clark Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ JEAN GAULIN Jean Gaulin Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ RUSSEL H. HERMAN Russel H. Herman Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ BOB MARBUT Bob Marbut Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ KATHERINE D. ORTEGA Katherine D. Ortega Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ MADELEINE SAINT-JACQUES Madeleine Saint-Jacques Dated: April 23, 1997 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby constitutes and appoints Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and each of them, his true and lawful attorney or attorneys-in-fact, with full power of substitution and revocation, for him and in his name, place, and stead, in any and all capacities (including as an officer or director of ULTRAMAR DIAMOND SHAMROCK CORPORATION (the "Corporation"), to sign Registration Statements on Form S-8 of the Corporation for the purposes of registering, pursuant to the Securities Act of 1933: (1) 100,000 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's Non-Employee Director Equity Plan, (2) 77,458 shares of Common Stock (and associated stock purchase rights) in accordance with the terms of the Corporation's 401(k) Retirement Savings Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and (3) 101,015 shares of Common Stock (and associated stock purchase rights)in accordance with the terms of the Corporation's Nonqualified 401(k) Plan (and as a result of the merger between Diamond Shamrock, Inc. and Ultramar Corporation), and to sign any or all amendments and any or all post-effective amendments to such Registration Statements, and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission granting unto said attorney or attorneys-in-fact, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney or attorneys-in-fact or any of them or their substitute or substitutes, may lawfully do or cause to be done by virtue hereof. /s/ C. BARRY SCHAEFER C. Barry Schaefer Dated: April 23, 1997 EX-24.2 7 CERTIFICATE ULTRAMAR DIAMOND SHAMROCK CORPORATION I, Harold D. Mallory, Assistant Secretary of ULTRAMAR DIAMOND SHAMROCK CORPORATION, a Delaware corporation, and custodian of the books and records of said corporation, do hereby certify that the following resolutions were duly adopted by the Board of Directors of said corporation on April 23, 1997, and that said resolutions are in full force in effect. RESOLVED that the appropriate officers of the Corporation be, and hereby they are, authorized and directed on behalf of the Corporation to prepare, execute and file with the Securities and Exchange Commission a Registration Statement on Form S-8 for the registration under the Securities Act of 1933, as amended (the "1933 Act"), of the number of shares of Common Stock (the "Shares") of the Corporation available for issuance or transfer pursuant to each of the 401(k) Retirement Savings Plan and the Nonqualified 401(k) Plan, and to file such amendments thereto as may, in the opinion of the officers executing the same on behalf of the Corporation, be necessary or proper to effect the registration of such Shares under the 1933 Act, and to cause to be filed with the Securities and Exchange Commission all such post-effective amendments, additional papers, prospectuses, undertakings and documents as may be necessary or advisable in order to make such registration statement effective, to comply with the provisions of the 1933 Act, and to comply with any undertakings of the Corporation made in connection with such registration. RESOLVED that Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, or any of them, be and hereby are designated to act on behalf of the Corporation as its agent or agents for service in respect of matters concerning the Registration Statements relating to the Shares with the powers enumerated in Rule 487 of the Rules and Regulations of the Securities and Exchange Commission. RESOLVED that the name of any officer or director of the Corporation signing the Registration Statements (and any amendments thereto) on its behalf may be signed pursuant to a power of attorney duly executed and delivered by the officer or director whose name is so signed. RESOLVED that the proper officers and employees of the Corporation be, and hereby they are, authorized and directed in the name and on behalf of the Corporation to take any and all action which they in their discretion may deem necessary or advisable in order to register or qualify the Shares, or any number thereof, issued pursuant to such 401(k) Retirement Savings Plan and such Nonqualified 401(k) Plan, for issuance and sale under the securities laws of any of the states of the United States of America, or to take any and all other action which they in their discretion may deem necessary or advisable in order to register or license the Corporation as a dealer or broker in securities in any such state or to secure permission for the Corporation to issue such Shares pursuant to such 401(k) Retirement Savings Plan and Nonqualified 401(k) Plan and in connection with such applications, registrations or qualifications to execute, acknowledge, verify, deliver, file and publish all such applications, reports, issuance, covenants, certified copies of resolution, powers of attorney, consents to service of process and any and all other papers or instruments as may be required under the laws of any such state, and to take any and all other action which they deem necessary or advisable in order to maintain such registration or qualification for as long as they deem to be in the best interest of the Corporation or in order to cancel such registration or qualification if and when they deem such cancellation to be in the best interest of the Corporation. RESOLVED that if, in any state in which any application, statement, notice or other instrument is required for the purpose of registering or qualifying the Shares issued pursuant to the 401(k) Retirement Savings Plan and the Nonqualified 401(k) Plan for offering or sale or to register or license the Corporation as a dealer or broker in securities, a prescribed form of resolution or resolutions relating to such offering or sale or to any application, statement, notice or other instrument in connection is required, each such preamble and resolution shall be deemed to have been, and hereby is, adopted by this Board of Directors and the Secretary of the Corporation is hereby authorized and directed to certify any such preamble or resolution as though the same were now presented to this meeting, all such preambles and resolutions to be inserted in the Minute Book following the minutes of this meeting. RESOLVED that the appropriate officers of the Corporation be, and hereby they are, authorized and directed to prepare, execute and file with the New York Stock Exchange listing applications, listing fee agreements and listing agreements with respect to the listing on such exchange, upon official notice of issuance of the Shares issued from time to time under and pursuant to the provisions of the 401(k) Retirement Savings Plan and the Nonqualified 401(k) Plan, and the proper officers of the Corporation be, and hereby they are, authorized and empowered to cause such listing applications to be amended and modified to the extent that the officers executing the same may deem necessary or proper and to cause to be filed with such exchange, all additional papers, undertakings, agreements and documents as may be necessary or advisable in order to cause such exchange to list those Shares. RESOLVED that Patrick J. Guarino, Curtis V. Anastasio, Harold D. Mallory, and Todd Walker, and any of them be, and hereby they are, authorized to appear if necessary or advisable before officials of such exchange, with authority to make changes in the listing applications relating to the Shares to be issued under and pursuant to the provisions of the 401(k) Retirement Savings Plan and the Nonqualified 401(k) Plan and take such steps as may be necessary to effect the listing of the Shares on such exchange. RESOLVED that the Corporation's Transfer Agent be, and hereby it is duly authorized to either (a) issue or (b) transfer from the Corporation's treasury as may be authorized in the manner provided below, and that the Corporation's Registrar be and hereby it is duly authorized to register certificates of Common Stock of this Corporation issued or transferred from the Corporation's treasury pursuant to the terms of the 401(k) Retirement Savings Plan and the Nonqualified 401(k) Plan, upon written certification and authorization by the Chief Executive Officer, Chief Operating Officer and President, any Vice President, the Secretary, or Assistant Secretary of the Corporation that Shares were issued thereunder to each director or employee designated in such certification, that each such director or employee is entitled to receive the number of shares specified in such certification and that shares of Common Stock therefore are to be either issued or transferred from the Corporation's treasury, as the case may be. RESOLVED that the appropriate officers and employees of the Corporation be, and hereby they are, authorized and directed to take any and all further action and do any and all other things that may be necessary, proper or advisable to effectuate the foregoing resolutions. RESOLVED that such further specific resolutions as may be required in connection with the registration and listing of Shares as contemplated above be, and hereby they are, deemed adopted and such resolutions may be certified by the Secretary of the Corporation as having been adopted by the Board of Directors provided that a copy thereof is inserted in the Minute Book following the minutes of this meeting. IN WITNESS WHEREOF, I have set my hand and the seal of this corporation upon this 22nd day of May, 1997. /s/ HAROLD D. MALLORY Harold D. Mallory w3301.lw -----END PRIVACY-ENHANCED MESSAGE-----