As Filed With the Securities and Exchange Commission on _____________, 2003
Registration No. 333-________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VALERO ENERGY CORPORATION
(Exact name of issuer as specified in its charter)
Delaware 74-1828067
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
One Valero Place 78212
San Antonio, Texas (Zip Code)
(address of principal executive offices)
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VALERO ENERGY CORPORATION
2003 EMPLOYEE STOCK INCENTIVE PLAN
(Full title of the plan)
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Jay D. Browning, Esq.
Vice President and Secretary
Valero Energy Corporation
One Valero Place
San Antonio, Texas 78212
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (210) 370-2000
CALCULATION OF REGISTRATION FEE
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
Title of securities to Amount to be Proposed maximum Proposed maximum Amount of
be registered registered (2) offering price per aggregate offering Registration Fee
share (1) price (1)
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Common Stock, par 5,000,000 shares $37.825 $189,125,000 $15,300
value $.01 per share
(3)
------------------------ ---------------------- ---------------------- ---------------------- ----------------------
(1) Estimated pursuant to Rule 457(c) and (h) solely for the purpose of
computing the registration fee and based upon the average of the high
and low sales price of the Common Stock of the Registrant reported on
the New York Stock Exchange on June 23, 2003.
(2) There are also registered hereby such indeterminate number of shares of
Common Stock as may become issuable by reason of the anti-dilution
provisions of the 2003 Employee Stock Incentive Plan.
(3) Includes the associated Preferred Share Purchase Rights, which
initially are attached to, trade with and are represented by the
certificates for the Common Stock being registered hereby.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Note: The document(s) containing the employee benefit plan information
required by Item 1 of Form S-8 and the statement of availability of information
about us and any other information required by Item 2 of Form S-8 will be sent
or given to participants as specified by Rule 428 under the Securities Act of
1933, as amended (the "Securities Act"). In accordance with Rule 428 and the
requirements of Part I of Form S-8, such documents are not being filed with the
Securities and Exchange Commission (the "Commission") either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to
Rule 424 under the Securities Act. We shall maintain a file of such documents in
accordance with the provisions of Rule 428. Upon request, we will furnish to the
Commission or its staff a copy or copies of all of the documents included in
such file.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by reference.
This Registration Statement incorporates herein by reference the
following documents which have been filed by us with the Commission pursuant to
the Securities Exchange Act of 1934, as amended (the "Exchange Act") (File No.
001-13175):
o Our Annual Report on Form 10-K for the fiscal year ended December 31,
2002;
o Our Quarterly Report on Form 10-Q for the quarter ended March 31,
2003;
o Our Current Report on Form 8-K dated April 22, 2003 and filed on April
22, 2003;
o Our Current Report on Form 8-K dated May 30, 2003 and filed on June 4,
2003;
o The description of our common stock, par value $.01 per share ("Common
Stock"), contained in our Registration Statement on Form S-1 filed on
May 13, 1997, as amended (Reg. No. 333-27013) and Registration
Statement on Form 8-A filed on July 9, 1997, as amended; and
o The description of the Preferred Share Purchase Rights, contained in
our Registration Statement on Form 8-A/A filed on May 10, 2001, as
amended.
Each document filed by us pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment to this Registration
Statement which indicates that all securities offered hereby have been sold or
which deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be a part hereof
from the date of filing such documents.
Any statement contained in this Registration Statement, in an amendment
hereto or in a document incorporated by reference herein shall be deemed to be
modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any subsequently filed supplement to
this Registration Statement or in any document that also is incorporated by
reference herein modifies or supersedes such statement. Any statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Stock offered hereby will be
passed upon for Valero by Jay D. Browning, Esq., Vice President and Secretary of
the Company. As of June 23, 2003, Mr. Browning beneficially owned approximately
7,334 shares of Common Stock (including shares held under employee benefit
plans) and held options under employee stock option plans to purchase
approximately 30,212 additional shares.
Item 6. Indemnification of Directors and Officers.
The terms of Valero's Restated Certificate of Incorporation, as amended
(the "Restated Certificate of Incorporation"), eliminate the personal liability
of a director to Valero and its stockholders for monetary damages for breach of
his or her fiduciary duty as a director to the extent allowed under the Delaware
General Corporation Law. Except as provided below, if a director were to breach
his or her fiduciary duty as a director, neither Valero not its stockholders
could recover monetary damages from the director, and the only remedies
available to Valero's stockholders would be equitable remedies, such as an
action to enjoin or rescind a transaction involving a breach of fiduciary duty.
To the extent certain claims against directors are limited to equitable
remedies, the provision in Valero's Restated Certificate of Incorporation may
reduce the likelihood of derivative litigation and may discourage stockholders
or management from initiating litigation against directors for breach of their
fiduciary duty. Additionally, equitable remedies may not be effective in many
situations. If a stockholder's only remedy is to enjoin the completion of the
action of the Board of Directors, this remedy would be ineffective if the
stockholder does not become aware of a transaction or event until after it has
been completed. In this situation, it is possible that the stockholders and
Valero would have no effective remedy against the directors. Under Valero's
Restated Certificate of Incorporation, a director remains liable for monetary
damages for (i) any breach of the duty of loyalty to Valero or its stockholders,
(ii) act or omissions not in good faith or that involve intentional misconduct
or a knowing violation of law, (iii) payment of an improper dividend or improper
repurchase or redemption of Valero's stock under Section 174 of the Delaware
General Corporation Law, or (iv) any transaction from which the director derived
an improper personal benefit.
Under Article V of the Restated Certificate of Incorporation, Article
VII of Valero's By-laws and under an indemnification agreement with Valero's
officers and directors (the "Indemnity Agreement,") each person who is or was a
director or officer of Valero or a subsidiary of Valero, or who serves or served
any other enterprise or organization at the request of Valero or a subsidiary of
Valero, shall be indemnified by Valero to the full extent permitted by the
Delaware General Corporation Law. Pursuant to these provisions and the Indemnity
Agreement, to the extent that such person is successful on the merits or
otherwise in defense of a suit or proceeding brought against this person by
reason of the fact that he or she is or was a director or officer of Valero, or
serves or served any other enterprise or organization at the request of Valero,
this person shall be indemnified against expenses (including attorneys' fees)
actually and reasonably incurred in connection with the action.
Under the Delaware General Corporation Law, Valero generally has the
power to indemnify its present and former directors, officers, employees and
agents against expenses and liabilities incurred by them in connection with any
suit to which they are, or are threatened to be made, a party by reason of their
serving in these positions so long as they acted in good faith and in a manner
they reasonably believed to be in, or not opposed to, the best interest of
Valero and with respect to any criminal action, they had no reasonable cause to
believe their conduct was unlawful. With respect to suits by or in the right of
Valero, however, indemnification is generally limited to attorneys' fees and
other expenses and indemnification is not available if the person is adjudged to
be liable to Valero unless the court determines that indemnification is
appropriate.
The Indemnity Agreement provides directors and officers with specific
contractual assurance that indemnification and advancement of expenses will be
available to them regardless of any amendments to or revocation of the
indemnification provisions of Valero's By-laws. The Indemnity Agreement provides
for indemnification of directors and officers against both stockholder
derivative claims and third-party claims. Sections 124(a) and 145(b) of the
Delaware General Corporation Law, which grant corporations the power to
indemnify directors and officers, specifically authorize lesser indemnification
in connection with derivative claims than in connection with third-party claims.
The distinction is that Section 145(a), concerning third-party claims,
authorizes expenses and judgments and amounts paid in settlement (as is provided
in the Indemnity Agreement), while Section 145(b), concerning derivative suits,
generally authorizes only indemnification of expenses. However, Section 145(f)
expressly provides that the indemnification and advancement of expenses provided
by or granted pursuant to the subsections of Section 145 shall not be exclusive
of any other rights to which those seeking indemnification or advancement of
expenses may be entitled under any agreement. No Delaware case directly
clarifies whether Delaware's public policy would support this aspect of the
Indemnity Agreement under the authority of Section 145(f), or would invalidate
the Indemnity Agreement because it does not conform to the distinctions
contained in Section 145(a) and 145(b). However, Delaware courts have determined
that a corporation can obligate itself by express written contract to provide
advancement of expenses not otherwise required by statute, and that the public
policy of Delaware does not prevent a corporation from making these advances
mandatory.
Delaware corporations also are authorized to obtain insurance to
protect officers and directors from certain liabilities, including liabilities
against which the corporation cannot indemnify its directors and officers.
Valero currently has in effect a directors' and officers' liability insurance
policy.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
The following documents are filed as a part of this registration
statement or incorporated by reference herein:
Exhibit
Number Description
*4.1 -- Restated Certificate of Incorporation of the Company (filed as
Exhibit 3.1 to the Company's Form S-1 filed May 13, 1997, File
No. 333-27013)
*4.2 -- Amendment to Restated Certificate of Incorporation (filed as
Exhibit 3.1 to the Company's Form 8-K filed on January 11, 2002,
File No. 001-13175)
*4.3 -- Amended and Restated Bylaws of the Company (filed as Exhibit 3.3
to the Company's Annual Report on Form 10-K for the year ended
December 31, 2001, filed March 14, 2002, File No. 001-13175)
*4.4 -- Rights Agreement between Valero Refining and Marketing Company
and Harris Trust and Savings Bank (filed as Exhibit 4.1 to the
Company's Form S-8 filed July 21, 1997, File No. 333-31709)
*4.5 -- Amendment No. 1 to Rights Agreement (filed as Exhibit 4.4 to the
Company's Form 8-A/A filed May 10, 2001, File No. 001-13175)
4.6 -- Valero Energy Corporation 2003 Employee Stock Incentive Plan
(filed herewith)
5.1 -- Opinion of Jay D. Browning (filed herewith)
23.1 -- Consent of Jay D. Browning (included in Exhibit 5.1)
23.2 -- Consent of Ernst & Young L.L.P. (filed herewith)
24 -- Powers of Attorney (included on the signature page of this
registration statement)
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* Incorporated herein by reference as indicated.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the registration statement is on Form S-3 or Form S-8, and the information
required to be included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the registrant pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, ad 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
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of this counsel 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 act and will be
governed by the final adjudication of each issue.
SIGNATURES
Registrant. Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-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, State of Texas, on the 24th day of June,
2003.
VALERO ENERGY CORPORATION
By: /s/ William E. Greehey
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William E. Greehey
Chairman of the Board and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints William E. Greehey, Gregory C.
King, Jay D. Browning, or J. Stephen Gilbert or any of them, each with power to
act without the other, his true and lawful attorney-in-fact and agent, with full
power of substitution and resubstitution, for him and in his name, place and
stead, in any and all capacities to sign any and all subsequent pre and
post-effective amendments and supplements to this registration statement, and to
file the same, or cause to be filed the same, with all exhibits thereto and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto each said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing appropriate or
necessary to be done in and about the premises, as fully and for all intents and
purposes as he might or could do in person, hereby ratifying and confirming all
that said attorney-in-fact and agent or any of them or their substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
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/s/ William E. Greehey Chairman of the Board and June 24, 2003
-------------------------------Chief Executive Officer
William E. Greehey (Principal Executive Officer)
/s/ John D. Gibbons Executive Vice President June 24, 2003
-------------------------------and Chief Financial Officer
John D. Gibbons (Principal Financial and
Accounting Officer)
/s/ E. Glenn Biggs Director June 24, 2003
-------------------------------
E. Glenn Biggs
/s/ W. E. Bradford Director June 25, 2003
-------------------------------
W. E. Bradford
/s/ Ronald K. Calgaard Director June 24, 2003
-------------------------------
Ronald K. Calgaard
/s/ Jerry D. Choate Director June 24, 2003
-------------------------------
Jerry D. Choate
Director June ____, 2003
-------------------------------
Robert G. Dettmer
/s/ Ruben M. Escobedo Director June 24, 2003
-------------------------------
Ruben M. Escobedo
/s/ Bob Marbut Director June 24, 2003
-------------------------------
Bob Marbut
/s/ Susan Kaufman Purcell Director June 24, 2003
-------------------------------
Susan Kaufman Purcell
Exhibit Index
Exhibit
Number Description
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*4.1 Restated Certificate of Incorporation of the Company (filed as Exhibit
3.1 to the Company's Form S-1 filed May 13, 1997, File No. 333-27013)
*4.2 Amendment to Restated Certificate of Incorporation (filed as Exhibit
3.1 to the Company's Form 8-K filed on January 11, 2002, File No.
001-13175)
*4.3 Amended and Restated Bylaws of the Company (filed as Exhibit 3.3 to
the Company's Annual Report on Form 10-K for the year ended December
31, 2001, filed March 14, 2002, File No. 001-13175)
*4.4 Rights Agreement between Valero Refining and Marketing Company and
Harris Trust and Savings Bank (filed as Exhibit 4.1 to the Company's
Form S-8 filed July 21, 1997, File No. 333-31709)
*4.5 Amendment No. 1 to Rights Agreement (filed as Exhibit 4.4 to the
Company's Form 8-A/A filed May 10, 2001, File No. 001-13175)
4.6 Valero Energy Corporation 2003 Employee Stock Incentive Plan (filed
herewith)
5.1 Opinion of Jay D. Browning (filed herewith)
23.1 Consent of Jay D. Browning (included in Exhibit 5.1)
23.2 Consent of Ernst & Young L.L.P. (filed herewith)
25 Powers of Attorney (included on the signature page of this
registration statement)
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* Incorporated herein by reference as indicated.