As filed with the Securities and Exchange Commission on July 21, 1997.
Registration No. 333 -
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
VALERO REFINING AND MARKETING COMPANY
(Exact name of registrant as specified in its charter)
Delaware 74-1828067
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
530 McCullough Avenue
San Antonio, Texas 78215
(Address of Principal Executive Offices) (Zip Code)
VALERO REFINING AND MARKETING COMPANY
THRIFT PLAN
(Full title of the plan)
GREGORY C. KING, ESQ.
530 McCullough Avenue
San Antonio, Texas 78215
(210) 246-2030
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed
Proposed maximum
Title of Amount offering aggregate Amount of
Securities to to be price offering registration
be registered registered per share(1) price(1) fee
Common Stock, par
value $.01 per
share(2) 500,000 $27.68 $13,840,000 $4,194
shares
Preferred Share
Purchase
Rights(2)(3) 500,000 n/a n/a n/a
rights
(1) The registration fee for the securities registered hereby has been
calculated pursuant to Rule 457(f)(2) under the Securities Act and
is based upon the book value of the Common Stock computed as of
May 31, 1997.
(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 Thrift Plan.
(3) Until the Distribution Date (as defined in the Rights Agreement
listed as an exhibit hereto) the Preferred Share Purchase Rights
trade with and are represented by the certificates for the
Common Stock.
<PAGE>
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The Valero Refining and Marketing Company ("Valero") documents listed in
clauses (a) through (c) below are incorporated by reference in this
Registration Statement. All documents subsequently filed by the registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended, 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 in this Registration Statement and to be a part hereof from the date
of filing of these documents.
(a) Registration Statement on Form S-1 dated May 13, 1997
(Registration No. 333-27013)(the "Registration Statement").
(b) Quarterly Report on Form 10-Q for the quarterly period ended
March 31, 1997.
(c) Registration Statement on Form 8-A dated July 9, 1997, as
amended, and the description of Valero's Common Stock, $.01 par
value (the "Common Stock"), contained 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 Gregory C. King, Esq., Associate General
Counsel and an employee of Valero Energy Corporation ("VEC"). VEC is
currently the sole stockholder of Valero. VEC has entered into that
certain Agreement and Plan of Merger dated January 31, 1997 (the "Merger
Agreement"), with PG&E Corporation ("PG&E") and PG&E Acquisition
Corporation ("PG&E Sub"), pursuant to which PG&E Sub will merge with and
into VEC (the "Merger") on July 31, 1997 and VEC will become a wholly
owned subsidiary of PG&E. The Merger Agreement contemplates that prior
to the Merger, VEC will distribute (the "Distribution") one share of
Valero's Common Stock to VEC's stockholders for each share of VEC Common
Stock, $1.00 par value ("VEC Common Stock") held by each VEC stockholder.
At June 30, 1997, Mr. King beneficially owned approximately 7,300 shares
of VEC Common Stock (including shares held under employee benefit plans)
and held options under employee stock option plans of VEC to purchase
approximately 33,250 additional shares of VEC Common Stock. Following
the Distribution, Mr. King will beneficially own an equal number of
shares of Valero Common Stock, and his options under employee stock
option plans will be converted into options exercisable for shares of
Valero Common Stock.
The audited consolidated financial statements of Valero together with
its subsidiaries contained in the Registration Statement and incorporated by
reference herein have been audited by Arthur Andersen LLP, independent public
accountants, as indicated in their reports with respect thereto, and are
included herein in reliance upon the authority of said firm as experts in
accounting and auditing in giving said report.
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 nor 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 indemnification agreements 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.
Under this law, 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
interests 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, 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 8. Exhibits
The following is an index of exhibits filed or incorporated by reference as
part of this Registration Statement.
Exhibit
No.
3.1 -- Restated Certificate of Incorporation of Valero Refining and
Marketing Company--incorporated by reference from Exhibit 3.1
to the Valero Refining and Marketing Company Registration
Statement on Form S-1 (Registration No. 333-27013, filed May
13, 1997).
3.2 -- By-Laws of Valero Refining and Marketing Company--incorporated
by reference from Exhibit 3.2 to the Valero Refining and
Marketing Company Registration Statement on Form S-1
(Registration No. 333-27013, filed May 13, 1997).
4.1 -- Rights Agreement between Valero Refining and Marketing
Company and Harris Trust and Savings Bank--incorporated
by reference from Exhibit 4.1 to the Valero Refining
and Marketing Company Registration Statement on
Form S-8, filed July 21, 1997.
4.2 -- Form of Credit Agreement among Valero Refining and Marketing
Company, Morgan Guaranty Trust Company of New York, Bank of
Montreal and the banks and co-agents party thereto--
incorporated by reference from Exhibit 4.2 to the Valero
Refining and Marketing Company Registration Statement on Form
S-1 (Registration No. 333-27013, filed May 13, 1997).
*5.1 -- Opinion of Gregory C. King, Esq. (including Consent of
Counsel).
*23.1 -- Consent of Arthur Andersen LLP dated July 18, 1997.
*23.2 -- Consent of Arthur Andersen LLP dated July 18, 1997.
*23.3 -- Consent of Counsel (included in Item 5.1).
*24.1 -- Power of Attorney (included on signature page of this
Registration Statement).
*Filed herewith.
Item 9. Undertakings.
In addition to the undertakings incorporated by reference herein,
(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 a 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, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(h) 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
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, and State of Texas, on
July 21, 1997.
VALERO REFINING AND MARKETING COMPANY
(Registrant)
By /s/ William E. Greehey
William E. Greehey, Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints William E. Greehey, Edward
C. Benninger and Gregory C. King, 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 or 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 other documents in connection therewith, with the
Securities and Exchange Commission, granting unto each said attorney-in-fact
and agent full power 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-in-fact and agent, or
his substitute or 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 below by the following persons
in the capacities and on the dates indicated:
Signature Title Date
Director, Chairman of
the Board, and Chief
Executive Officer
/s/ William E. Greehey (Principal Executive Officer) July 21, 1997
William E. Greehey
Director, President and
Chief Financial Officer
(Principal Financial Officer
and Principal Accounting
/s/ Edward C. Benninger Officer) July 21, 1997
Edward C. Benninger
/s/ Stan L. McLelland Director July 21, 1997
Stan L. McLelland
/s/ E. Baines Manning Director July 21, 1997
E. Baines Manning
/s/ George E. Kain Director July 21, 1997
George E. Kain
/s/ Wayne D. Smithers Director July 21, 1997
Wayne D. Smithers
July 21, 1997
Board of Directors
Valero Refining and Marketing Company
530 McCullough Avenue
San Antonio, TX 78215
Ladies & Gentlemen:
I am the Associate General Counsel of Valero Energy Corporation, a
Delaware corporation, the sole stockholder of Valero Refining and Marketing
Company, a Delaware corporation ("Valero"), and have acted as counsel for
Valero in connection with the proposed offering of up to 500,000 shares of
Common Stock, $.01 par value per share, of Valero (the "Shares"), together
with up to 500,000 Preferred Share Purchase Rights ("Rights") of Valero,
pursuant to the Valero Refining and Marketing Company Thrift Plan (the "Plan").
In connection therewith, I have examined, among other things, the
Restated Certificate of Incorporation and the By-laws of Valero, the corporate
proceedings with respect to the adoption of the Plan and the offering of the
Shares, the corporate proceedings with respect to the creation of the Rights
Agreement, dated as of July 17, 1997, between Valero and Harris Trust and
Savings Bank, as Rights Agent, and the Registration Statement on Form S-8 (the
"Registration Statement") to be filed by Valero with the Securities and
Exchange Commission for the registration of the Shares and the Rights under
the Securities Act of 1933, as amended (the "Act").
Based on the foregoing, and having due regard for such legal
considerations as I have determined relevant, I am of the opinion that:
1. Valero is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware.
2. The Shares and Rights proposed to be sold by Valero under the
Plan and which are original issuance securities have been duly authorized for
issuance and, subject to the Registration Statement becoming effective under
the Act and to compliance with any applicable Blue Sky laws and to the
issuance of such Shares and Rights in accordance with the provisions of the
Plan, when each certificate for a portion of such Shares has been executed by
Valero, authenticated by the Transfer Agent, registered by the Registrar and
delivered and sold in accordance with the Plan, (a) the Shares represented by
such certificate will be legally issued, fully paid and non-assessable shares
of Common Stock of Valero, and (b) the Rights trading with and represented by
such certificate for the Shares will be legally issued, fully paid and
non-assessable Preferred Share Purchase Rights of Valero entitled to the
benefits of the Rights Agreement.
I hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and the references to myself therein.
Very truly yours,
/s/ Gregory C. King
Gregory C. King,
General Counsel
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated February 14, 1997
(except with respect to the matters discussed in Notes 1, 2 and 3, as to which
the date is May 9, 1997), included in Valero Refining and Marketing Company's
Form S-1 dated May 13, 1997, and to all references to our firm included in
this Registration Statement.
/s/ Arthur Andersen LLP
San Antonio, Texas
July 18, 1997
EXHIBIT 23.2
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Registration Statement of our report dated January 31, 1997
(except with respect to the matter discussed in Note 15, as to which the date
is March 17, 1997) on the financial statements of Basis Petroleum, Inc. and
subsidiaries included in Valero Refining and Marketing Company's Registration
Statement on form S-1 dated May 13, 1997 (Registration Statement No.
333-27013), and to all references to our firm included in this Registration
Statement.
/s/ Arthur Andersen LLP
Houston, Texas
July 18, 1997
