As Filed With the Securities and Exchange Commission on September 1, 2004
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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
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| VALERO ENERGY CORPORATION |
| (Exact name of issuer as specified in its charter) |
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Delaware
(State or other jurisdiction of incorporation or organization) |
74-1828067
(I.R.S. Employer Identification Number) |
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One Valero Way
San Antonio, Texas
(address of principal executive offices |
78249
(Zip Code) |
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VALERO ENERGY CORPORATION THRIFT PLAN
(FORMERLY VALERO REFINING AND MARKETING COMPANY THRIFT PLAN)
(Full title of the plan)
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Jay D. Browning, Esq.
Vice President and Secretary
Valero Energy Corporation
One Valero Way
San Antonio, Texas 78249
(Name and address of agent for service)
Telephone number, including area code, of agent for service: (210) 345-2000
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CALCULATION OF REGISTRATION FEE
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| Title of securities to |
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Amount to be |
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Proposed maximum |
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Proposed maximum |
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Amount of |
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| be registered |
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registered (1) |
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offering price per |
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aggregate offering |
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Registration Fee |
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share (2) |
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price (2) |
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| Common Stock, par |
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5,000,000 shares |
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$64.76 |
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$323,800,000 |
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$41,026 |
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| value $.01 per share |
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| (1) |
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In addition, pursuant to Rule 416 under the Securities Act of 1933, as amended
(the “Securities Act”), this Registration Statement also covers an
indeterminate number of additional shares that may be offered or issued pursuant
to the Valero Energy Corporation Thrift Plan (the “Plan”) as a result
of stock splits, stock dividends or similar transactions. In addition, pursuant
to Rule 416(c) under the Securities Act, this Registration Statement also covers
an indeterminate amount of interests to be offered or sold pursuant to the
employee benefit plan described herein. |
| (2) |
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Estimated pursuant to Rule 457(c) and (h) of the Securities Act 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 August 25, 2004. |
| (3) |
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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. |
INTRODUCTORY STATEMENT
Valero
Energy Corporation (the “Registrant” or “Valero”) is filing this
Registration Statement on Form S-8 relating to its common stock, par value $0.01 per
share, and associated rights to purchase its Preferred Stock, par value $0.01 per share
(such common stock and associated rights are collectively referred to in this Registration
Statement as the “Common Stock”), issuable pursuant to the terms of the Valero
Energy Corporation Thrift Plan, as amended (the “Plan”).
In
accordance with General Instruction E to Form S-8, the contents of Valero’s
Registration Statement on Form S-8 filed with the Securities and Exchange Commission (the
“SEC”) on July 21, 1997 (File No. 33-31727) is hereby incorporated by reference.
PART I
INFORMATION REQUIRED
IN THE SECTION 10(A) PROSPECTUS
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 Valero 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. In accordance with Rule 428 and the requirements of Part I
of Form S-8, such documents are not being filed with the SEC either as part of this
Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424
under the Securities Act. Valero shall maintain a file of such documents in accordance
with the provisions of Rule 428. Upon request, Valero will furnish to the SEC 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 Valero or by the Plan with the SEC pursuant to the Securities Exchange Act
of 1934, as amended (the “Exchange Act”) (File No. 001-13175):
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o |
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The
description of Valero’s Common Stock, contained in its Registration Statement on
Form 8-A filed on July 9, 1997, as may be amended from time to time to update that
description; |
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o |
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The
description of the rights associated with Valero’s Common Stock, contained in its
Registration Statement on Form 8-A, as may be amended from time to time to update that
description; and |
All
documents filed by Valero and the Plan 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.
EXPERTS
The
consolidated financial statements of Valero and subsidiaries at December 31, 2003 and
2002, and for each of the years then ended, appearing in Valero’s Annual Report on
Form 10-K for the year ended December 31, 2003, have been audited by Ernst & Young
LLP, independent registered public accounting firm, as set forth in their report thereon
included therein and incorporated herein by reference. Such consolidated financial
statements are incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
The
consolidated financial statements of Valero and subsidiaries for the year ended December
31, 2001 appearing in Valero’s Annual Report on Form 10-K for the year ended December
31, 2003 have been audited by Arthur Andersen LLP, independent public accountants, as set
forth in their report thereon included therein and incorporated herein by reference. Such
consolidated financial statements are incorporated herein by reference in reliance upon
such report given on the authority of such firm as experts in accounting and auditing.
The
financial statements of Orion Refining Corporation appearing in Valero’s Current
Report on Form 8-K/A filed with the SEC on August 12, 2003 have been audited by
PricewaterhouseCoopers LLP, independent registered public accounting firm, as set forth in
their report thereon included therein and incorporated herein by reference. Such financial
statements are incorporated herein by reference in reliance upon such report given on the
authority of such firm as experts in accounting and auditing.
The
combined financial statements of the El Paso Aruba Refining Business appearing in
Valero’s Current Report on Form 8-K/A filed with the SEC on May 10, 2004 have been
audited by PricewaterhouseCoopers LLP, independent registered public accounting firm, as
set forth in their report thereon included therein and incorporated herein by reference.
Such combined financial statements are incorporated herein by reference in reliance upon
such report given on the authority of such firm as experts in accounting and auditing.
The
financial statements of the Plan at December 31, 2003, and for the year then ended,
appearing in the Plan’s Annual Report on Form 11-K for the year ended December 31,
2003 have been audited by KPMG LLP, independent registered public accounting firm, as set
forth in their report thereon included therein and incorporated herein by reference. Such
financial statements are incorporated herein by reference in reliance upon such report
given on the authority of such firm as experts in accounting and auditing. The financial
statements of the Plan at December 31, 2002, and for the year then ended, appearing in the
Plan’s Annual Report on Form 11-K for the year ended December 31, 2003 have been
audited by Ernst & Young LLP, independent registered public accounting firm, as set
forth in their report thereon included therein and incorporated herein by reference. Such
financial statements are incorporated herein by reference in reliance upon such report
given on the authority of such firm as experts in accounting and auditing.
MATTERS RELATING TO ARTHUR ANDERSEN LLP
Arthur
Andersen LLP has not consented to the incorporation by reference of their report in this
Registration Statement, and Valero has dispensed with the requirement to file their
consent in reliance upon Rule 437a of the Securities Act. Because Arthur Andersen LLP has
not consented to the incorporation by reference of their report in this Registration
Statement, holders of securities registered under this Registration Statement will not be
able to recover against Arthur Andersen LLP under Section 11 of the Securities Act for any
untrue statement of a material fact contained in the financial statements audited by
Arthur Andersen LLP or any omissions to state a material fact required to be stated
therein.
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 Valero. As of August 24, 2004,
Mr. Browning beneficially owned approximately 19,254 shares of Common Stock (including
shares held under employee benefit plans) and held options under employee stock option
plans to purchase approximately 35,699 additional shares.
Item 6. Indemnification
of Directors and Officers.
Valero’s
Amended and Restated Certificate of Incorporation, as amended (the “Restated
Certificate of Incorporation”) contains a provision that eliminates the personal
liability of a director to Valero and its stockholders for monetary damages for breach of
fiduciary duty as a director to the extent currently allowed under the Delaware General
Corporation Law. If a director were to breach such duty in performing his duties as a
director, neither Valero nor its stockholders could recover monetary damages from the
director, and the only course of action 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 Board of Directors’
action, this remedy would be ineffective if the stockholder does not become aware of a
transaction or event until after it has been completed. In such a situation, it is
possible that the stockholders and Valero would have no effective remedy against the
directors. Under Valero’s Restated Certificate of Incorporation, liability for
monetary damages remains for (i) any breach of the duty of loyalty to Valero or its
stockholders, (ii) acts or omissions not in good faith or which 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 and Article VIII of
Valero’s Amended and Restated By-laws as currently in effect (the “Restated
By-laws”) and an indemnification agreement with Valero’s officers and directors
(the “Indemnification 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.
Under such law, to the extent that such person is successful on the merits in defense of a
suit or proceeding brought against him by reason of the fact that he is or was a director
or officer of Valero, or serves or served any other enterprise or organization at the
request of Valero, he shall be indemnified against expenses (including attorneys’
fees) actually and reasonably incurred in connection with such action.
Under such law, if unsuccessful in defense of a third-party civil suit or a criminal suit,
or if such suit is settled, such a person shall be indemnified against both
(a) expenses, including attorneys’ fees, and (b) judgments, fines and
amounts paid in settlement if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of Valero, and, with respect to
any criminal action, had no reasonable cause to believe his conduct was unlawful.
If unsuccessful in defense of a suit brought by or in the right of Valero, or if such a
suit is settled, such a person shall be indemnified under such law only against expenses
(including attorneys’ fees) actually and reasonably incurred in the defense or
settlement of such suit if he acted in good faith and in a manner he reasonably believed
to be in, or not opposed to, the best interests of Valero, except that if such person is
adjudged to be liable in such a suit for negligence or misconduct in the performance of
his duty to Valero, he cannot be made whole for expenses unless the court determines that
he is fairly and reasonably entitled to indemnity for such expenses.
The Indemnification 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 Restated By-laws. The Indemnification Agreement provides for indemnification
of directors and officers against both stockholder derivative claims and third-party
claims. Sections 145(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 Indemnification 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 answers the question whether
Delaware’s public policy would support this aspect of the Indemnification Agreement
under the authority of Section 145(f), or would cause its invalidation because it
does not conform to the distinctions contained in Sections 145(a) and 145(b).
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 8. Exhibits.
The
following documents are filed as a part of this Registration Statement or incorporated by
reference herein:
Exhibit
Number |
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Description |
| *4.6 |
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Specimen Certificate of Common Stock. |
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* Incorporated herein by reference as
indicated.
Item 9. Undertakings
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(a) |
The
undersigned registrant hereby undertakes: |
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(1) |
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To
file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement: |
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(i) |
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To include any prospectus required by Section 10(a)(3) of the Securities Act; |
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(ii) |
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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.
Notwithstanding the foregoing, any increase or decrease in the volume of
securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of a
prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the maximum
aggregate offering price set forth in the “Calculation of Registration Fee” table
in the effective Registration Statement; |
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(iii) |
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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; |
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Provided, however,
that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs is contained in periodic
reports filed with or furnished to the SEC by the Registrant pursuant to Section 13 or
Section 15(d) of the Exchange Act that are incorporated by reference in the Registration
Statement. |
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(2) |
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That, for the purpose of determining any liability under the Securities Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof. |
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(3) |
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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. |
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(b) |
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The
undersigned registrant hereby undertakes that, for purposes of determining
any liability under the Securities Act, each filing of the Registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan’s annual
report pursuant to Section 15(d) of the Exchange 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. |
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(c) |
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Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has
been advised that in the opinion of the SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in
the successful defense of any action, suit or proceeding) is asserted by
such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of
its counsel the matter has been settled by controlling precedent, submit
to a court of appropriate jurisdiction the question 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, 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 1st day of September,
2004.
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VALERO ENERGY CORPORATION |
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By: /s/William E. Greehey |
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William E. Greehey
Chairman of the Board and Chief Executive Officer |
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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 SEC, 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, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
| Signature |
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/s/William E. Greehey
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Chairman of the Board and Chief Executive Officer |
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September 1, 2004 |
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| William E. Greehey | | |
(Principal Executive Officer) | | |
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/s/Michael S. Ciskowski
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Executive Vice President and Chief Financial Officer | | |
September 1, 2004 | | |
| Michael S. Ciskowski | | |
(Principal Financial and Accounting Officer) | | |
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/s/E. Glenn Biggs
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Director | | |
August 30, 2004 | | |
| E. Glenn Biggs | | |
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/s/W. E. Bradford
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Director | | |
August 26, 2004 | | |
| W. E. Bradford | | |
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/s/Ronald K. Calgaard
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Director |
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September 1, 2004 |
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| Ronald K. Calgaard | | |
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/s/Jerry D. Choate
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Director |
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September 1, 2004 |
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| Jerry D. Choate | | |
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/s/Ruben M. Escobedo
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Director | | |
August 26, 2004 | | |
| Ruben M. Escobedo | | |
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/s/Bob Marbut
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Director | | |
September 1, 2004 | | |
| Bob Marbut | | |
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/s/Susan Kaufman Purcell
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Director | | |
September 1, 2004 | | |
| Susan Kaufman Purcell | | |
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Plan.
Pursuant to the requirements of the Securities Act, the Plan certifies
that it 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 1st day of September, 2004.
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VALERO ENERGY CORPORATION THRIFT PLAN
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Keith D. Booke
Chairman of the Administrative Committee |
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Exhibit Index
Exhibit
Number |
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Description |
| *4.6 |
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Specimen Certificate of Common Stock. |
_________________
* Incorporated herein by reference as
indicated.