Registration No. 33-
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 registrant as specified in its charter)
Delaware 74-1244795
(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 ENERGY CORPORATION NON-EMPLOYEE DIRECTOR
STOCK OPTION PLAN
(Full title of the plan)
RAND C. SCHMIDT, ESQ.
Corporate Secretary
530 McCullough Avenue
San Antonio, Texas 78215
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Amount offering aggregate Amount of
Title of Securities to be price offering registration
to be registered registered per share(1) price(1) fee
<S> <C> <C> <C> <C>
Common Stock, Par Value $1 100,000 shares $27.50 $2,750,000 $948.28
Preference Share Purchase Rights 100,000 rights n/a n/a n/a
</TABLE>
<FN1>
(1) Prices are estimated pursuant to Rule 457(c) solely for the purpose
of calculating the registration fee, and represent the average of the
high and low prices of a share of the Common Stock on April 23, 1996,
as reported in the New York Stock Exchange-Composite Transaction
listing for that date.
<FN2>
(2) Until the Distribution Date (as defined in the Rights Agreement listed
as an exhibit hereto) the Preference 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 Energy Corporation ("Energy") 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,
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) Annual Report on Form 10-K (the "Form 10-K") for the fiscal
year ended December 31, 1995.
(b) Proxy Statement for the Annual Meeting of Stockholders on April
30, 1996.
(c) Registration Statement on Form 8-A dated November 21, 1985, as
amended, and the description of Energy's Common Stock, $1.00
par value (the "Common Stock"), which is contained in a
registration statement filed under the Securities Exchange Act
of 1934, as amended, including any amendment or report filed
for the purpose of updating the description, are incorporated
by reference herein and made a part hereof.
Item 5. Interests of Named Experts and Counsel.
The validity of the issuance of the Common Stock offered hereby will be
passed upon for Energy by Rand C. Schmidt, Esq., Corporate Secretary and
Managing Attorney of Energy. Mr. Schmidt is an employee of Energy and at
April 30, 1996, beneficially owned approximately 8,250 shares of Energy's
Common Stock (including shares held under employee benefit plans) and held
options under employee stock option plans of Energy to purchase approximately
29,400 additional shares of Energy's Common Stock.
The audited consolidated financial statements of Energy together with its
subsidiaries contained in the Form 10-K and incorporated by reference herein
have been audited by Arthur Andersen LLP, independent public accountants, as
indicated in their report 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 Energy's Restated Certificate of Incorporation, as amended
(the "Restated Certificate of Incorporation"), eliminate the personal
liability of a director to Energy 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
Energy nor its stockholders could recover monetary damages from the director,
and the only remedies available to Energy'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 Energy'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 Energy would have no effective remedy
against the directors. Under Energy's Restated Certificate of Incorporation,
a director remains liable for monetary damages for (i) any breach of the duty
of loyalty to Energy 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
Energy'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 Energy's By-laws, and under indemnification agreements with Energy's
officers and directors (the "Indemnification Agreement"), each person who is
or was a director or officer of Energy or a subsidiary of Energy, or who
serves or served any other enterprise or organization at the request of Energy
or a subsidiary of Energy, shall be indemnified by Energy 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
Energy, or serves or served any other enterprise or organization at the
request of Energy, 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, Energy 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 Energy, 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 Energy, 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 Energy unless the court determines that
indemnification is appropriate.
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 Energy's By-laws. The
Indemnification 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 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 clarifies whether
Delaware's public policy would support this aspect of the Indemnification
Agreement under the authority of Section 145(f), or would invalidate the
Indemnification 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. Energy
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.
4.1 -- Restated Certificate of Incorporation of Valero Energy
Corporation--incorporated by reference from Exhibit 4.1
to the Valero Energy Corporation Registration Statement
on Form S-8 (Commission File No. 33-53796, filed October 27,
1992).
*4.2 -- By-Laws of Valero Energy Corporation, as amended and restated
April 30, 1996.
4.3 -- Rights Agreement, dated as of October 26, 1995, between Valero
Energy Corporation and Harris Trust and Savings Bank, as Rights
Agent--incorporated by reference from Exhibit 4.1 to the Valero
Energy Corporation Annual Report on Form 10-K (Commission File
No. 1-4718, filed February 16, 1996).
*5.1 -- Opinion of Rand C. Schmidt, Esq. (including Consent of Counsel).
*23.1 -- Consent of Arthur Andersen LLP dated April 30, 1996.
*23.2 -- Consent of Counsel (included in Item 5.1).
*24.1 -- Power of Attorney (included on signature page of the Registration
Statement).
___________________________
*Filed herewith.
Pursuant to subparagraph 601(b)(4)(iii)(A) of Regulation S-K, the
registrant has omitted from the foregoing list of exhibits, and hereby agrees
to furnish to the Commission upon its request, copies of certain instruments,
each relating to long-term debt not exceeding 10 percent of the total assets
of the registrant and its subsidiaries on a consolidated basis.
Item 9. Undertakings.
In additional 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 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 such issue.
<PAGE>
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 April 30,
1996.
VALERO ENERGY CORPORATION
(Registrant)
By /s/ William E. Greehey
(William E. Greehey)
Chairman of the Board and Chief Executive Officer
<PAGE>
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints William E. Greehey, Stan L. McLelland
and Rand C. Schmidt, or any of them, each with power to act without the
other, his or her true and lawful attorney-in-fact and agent with full power
of substitution and resubstitution, for him or her and in his or her 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 or she 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:
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
Director, Chairman of the Board
and Chief Executive Officer
(Principal Executive Officer)
/s/ William E. Greehey Valero Energy Corporation April 30, 1996
William E. Greehey
Senior Vice President and
Chief Financial Officer
(Principal Financial Officer and
Principal Accounting Officer)
/s/ Don M. Heep Valero Energy Corporation April 30, 1996
Don M. Heep
Director,
/s/ F. Joseph Becraft Valero Energy Corporation April 30, 1996
F. Joseph Becraft
Director,
/s/ Edward C. Benninger Valero Energy Corporation April 30, 1996
Edward C. Benninger
Director,
/s/ Ronald K. Calgaard Valero Energy Corporation April 30, 1996
Ronald K. Calgaard
Director,
/s/ Robert G. Dettmer Valero Energy Corporation April 30, 1996
Robert G. Dettmer
Director,
/s/ A. Ray Dudley Valero Energy Corporation April 30, 1996
A. Ray Dudley
Director,
/s/ Ruben M. Escobedo Valero Energy Corporation April 30, 1996
Ruben M. Escobedo
Director,
/s/ James L. Johnson Valero Energy Corporation April 30, 1996
James L. Johnson
Director,
/s/ Lowell H. Lebermann Valero Energy Corporation April 30, 1996
Lowell H. Lebermann
Director,
/s/ Susan Kaufman Purcell Valero Energy Corporation April 30, 1996
Susan Kaufman Purcell
</TABLE>
EXHIBIT 4.2
VALERO ENERGY CORPORATION
BY-LAWS
(Amended and Restated as of April 30, 1996)
ARTICLE I.
MEETINGS OF STOCKHOLDERS
Section 1. The annual meeting of stockholders shall be held at such date and
time and at such place as shall be designated from time to time by the Board
of Directors and stated in the notice of the meeting, for the purposes of
electing directors and of transacting such other business as may properly come
before the meeting. At least ten days' notice shall be given to the
stockholders of the date, time and place so fixed. Any previously scheduled
annual meeting of the stockholders may be postponed by resolution of the Board
of Directors upon public notice given prior to the date previously scheduled
for such annual meeting of stockholders.
Section 2. Except as otherwise provided by law or by the Restated Certificate
of Incorporation of the Corporation, as from time to time amended (the
"Restated Certificate of Incorporation"), special meetings of the stockholders
may be called only by the Chief Executive Officer or by the Board of Directors
pursuant to a resolution adopted by a majority of the directors which the
Corporation would have if there were no vacancies. Upon written request of
any person or persons who have duly called a special meeting, it shall be the
duty of the Secretary to fix the date and time of the special meeting (which
date shall be not less than ten nor more than sixty days after receipt of the
request) and to give due notice thereof. If the Secretary shall neglect or
refuse to fix the date or time of the meeting or to give notice thereof, the
person or persons calling the meeting may do so. Any such notice shall
include a statement of the purpose or purposes for which the special meeting
is called. Any previously scheduled special meeting of the stockholders may
be postponed by resolution of the Board of Directors upon public notice given
prior to the date previously scheduled for such special meeting of
stockholders.
Section 3. Every special meeting of the stockholders shall be held at such
place within or without the State of Delaware as the Board of Directors may
designate, or, in the absence of such designation, at the registered office of
the Corporation in the State of Delaware.
Section 4. Written notice of every meeting of the stockholders shall be given
by the Secretary to each stockholder of record entitled to vote at the
meeting, by placing such notice in the mail at least ten days, but not more
than sixty days, prior to the date fixed for the meeting addressed to each
stockholder at his address appearing on the books of the Corporation or
supplied by him to the Corporation for the purpose of notice.
Section 5. The Board of Directors may fix a date, which date shall not
precede the date upon which the resolution fixing such record date is adopted
by the Board of Directors, and which date shall be not less than ten nor more
than sixty days preceding the date of any meeting of stockholders, as a record
date for the determination of stockholders entitled to notice of, or to vote
at, any such meeting. The Board of Directors shall not close the books of the
Corporation against transfers of shares during the whole or any part of such
period.
Section 6. The notice of every meeting of the stockholders may be accompanied
by a form of proxy approved by the Board of Directors in favor of such person
or persons as the Board of Directors may select.
Section 7. (a) Except as otherwise provided by law or by the Restated
Certificate of Incorporation or by these By-Laws, at any meeting of
stockholders the presence in person or by proxy of the holders of the
outstanding shares of stock of the Corporation entitled to vote thereat and
having a majority of the voting power with respect to a subject matter shall
constitute a quorum for the transaction of business as to that subject matter,
and all questions with respect to a subject matter, except the election of
directors, shall be decided by vote of the shares having a majority of the
voting power so represented in person or by proxy at the meeting and entitled
to vote thereat. Election of directors shall be determined by a plurality
vote of the shares present in person or by proxy and entitled to vote on the
election of directors. The stockholders present at any duly organized meeting
may continue to do business until adjournment, notwithstanding the withdrawal
of enough stockholders to leave less than a quorum.
(b) Every stockholder having the right to vote shall be entitled to vote
in person, or by proxy appointed by an instrument in writing subscribed by
such stockholder (which for purposes hereof may include a signature and form
of proxy pursuant to a facsimile or telegraphic form of proxy or any other
instrument acceptable to the duly appointed inspector or inspectors of such
election), bearing a date not more than three years prior to voting, unless
such instrument provides for a longer period, and filed with the Secretary of
the Corporation before, or at the time of, the meeting. If such instrument
shall designate two or more persons to act as proxies, unless such instrument
shall provide to the contrary, a majority of such persons present at any
meeting at which their powers thereunder are to be exercised shall have and
may exercise all the powers of voting thereby conferred, or if only one be
present, then such powers may be exercised by that one; or, if an even number
attend and a majority do not agree on any particular issue, each proxy so
attending shall be entitled to exercise such powers in respect of the same
portion of the shares as he is of the proxies representing such shares.
(c) Any other corporation owning voting shares in the Corporation may
vote the same by its President or by proxy appointed by him, unless some other
person shall be appointed to vote such shares by resolution of the Board of
Directors of such shareholder corporation. A partnership holding shares of
the Corporation may vote such shares by any general partner or by proxy
appointed by any general partner.
(d) Shares standing in the name of a deceased person may be voted by the
executor or administrator of such deceased person, either in person or by
proxy. Shares standing in the name of a guardian, conservator or trustee may
be voted by such fiduciary, either in person or by proxy, but no such
fiduciary shall be entitled to vote shares held in such fiduciary capacity
without a transfer of such shares into the name of such fiduciary. Shares
standing in the name of a receiver may be voted by such receiver. A
stockholder whose shares are pledged shall be entitled to vote such shares,
unless in the transfer by the pledgor on the books of the Corporation, he has
expressly empowered the pledgee to vote thereon, in which case only the
pledgee, or his proxy, may represent the stock and vote thereon.
Section 8. Except as otherwise provided by law or by the Restated Certificate
of Incorporation, the presiding officer of any meeting or the holders of a
majority of the shares of stock of the Corporation entitled to vote at such
meeting, present in person or represented by proxy, whether a quorum is
present, shall have the power to adjourn the meeting from time to time,
without notice other than announcement at the meeting. At any such adjourned
meeting at which a quorum shall be present any action may be taken that could
have been taken at the meeting originally called; provided, that if the
adjournment is for more than thirty days or if after the adjournment a new
record date is fixed for the adjourned meeting, a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the
adjourned meeting.
Section 9. (a) Nominations of persons for election to the Board of Directors
of the Corporation and the proposal of business to be considered by the
stockholders may be made at an annual meeting of stockholders (i) pursuant to
the Corporation's notice of meeting, (ii) by or at the direction of the Board
of Directors or (iii) by any stockholder of the Corporation who was a
stockholder of record at the time of giving of the notice provided for in this
Section 9, who is entitled to vote with respect to such matter at the meeting
and who complies with the notice procedures set forth in this Section 9. At
any annual meeting of stockholders, the presiding officer of such meeting may
announce the nominations and other business to be considered which are set
forth in the Corporation's notice of meeting and proxy statement and, by
virtue thereof, such nominations and other business so announced shall be
properly before such meeting and may be considered and voted upon by the
stockholders of the Corporation entitled to vote thereat without further
requirement of nomination, motion or second.
(b) In order for nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (iii) of
Paragraph (a) of this Section 9, the stockholder making such nominations or
proposing such other business must theretofore have given timely notice
thereof in writing to the Secretary of the Corporation and such other business
must otherwise be a proper matter for stockholder action. To be timely, a
stockholder's notice shall be delivered to the Secretary at the principal
executive offices of the Corporation not later than the close of business on
the 60th day nor earlier than the close of business on the 90th day prior to
the first anniversary of the preceding year's annual meeting; provided,
however, that in the event that the date of the annual meeting is more than 30
days before or more than 60 days after such anniversary date, notice by the
stockholder to be timely must be so delivered not earlier than the close of
business on the 90th day prior to such annual meeting and not later than the
close of business on the later of the 60th day prior to such annual meeting or
the 10th day following the day on which public announcement of the date of
such meeting is first made by the Corporation. In no event shall the public
announcement of an adjournment of an annual meeting commence a new time period
for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (i) a description of any arrangements or
understandings that exist with respect to the election or reelection of
directors of the Corporation between such stockholder or the beneficial owner,
if any, on whose behalf such notice is given and any other person (or, if no
such arrangements or understandings exist, a statement to such effect),
together with, as to each person whom the stockholder proposes to nominate at
the meeting for election or reelection as a director, all information relating
to such person that is required to be disclosed in solicitations of proxies
for election of directors in an election contest, or is otherwise required, in
each case pursuant to Regulation 14A under the Securities Exchange Act of
1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder (including
such person's written consent to serving as a director if elected); (ii) as to
any other business that the stockholder proposes to bring before the meeting,
a brief description of the business desired to be brought before the meeting,
the reasons for conducting such business at the meeting and any material
interest in such business of such stockholder and the beneficial owner, if
any, on whose behalf the proposal is made; and (iii) as to the stockholder
giving the notice and the beneficial owner, if any, on whose behalf the
nomination or proposal is made (A) the name and address of such stockholder,
as they appear on the Corporation's books, and of such beneficial owner, and
(B) the class and number of shares of the Corporation which are owned
beneficially and of record by such stockholder and such beneficial owner.
(c) Notwithstanding anything in the second sentence of Paragraph (b) of
this Section 9 to the contrary, in the event that the number of directors to
be elected to the Board of Directors of the Corporation at an annual meeting
is increased, whether by increase in the size of the Board of Directors, or by
any vacancy in the Board of Directors to be filled at such annual meeting, and
there is no public announcement by the Corporation naming all of the nominees
for director or specifying the size of the increased Board of Directors made
by the Corporation at least 70 days prior to the first anniversary of the
preceding year's annual meeting, a stockholder's notice required by this
Section 9 shall also be considered timely, but only with respect to nominees
for such vacant positions and for any new positions created by such increase,
if it shall be delivered to the Secretary at the principal executive offices
of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation. Section 10. Only such business shall be conducted at a special
meeting of stockholders as shall have been brought before the meeting pursuant
to the Corporation's notice of meeting. Nominations of persons for election
to the Board of Directors may be made at a special meeting of stockholders at
which directors are to be elected pursuant to the Corporation's notice of
meeting (a) by or at the direction of the Board of Directors or (b) provided
that the Board of Directors has determined that directors shall be elected at
such meeting, by any stockholder of the Corporation who is a stockholder of
record at the time of giving of notice provided for in this Section 10, who
shall be entitled to vote at the meeting and who complies with the notice
procedures set forth in this Section 10. In the event the Corporation calls a
special meeting of stockholders for the purpose of electing one or more
directors to the Board of Directors, any such stockholder may nominate a
person or persons (as the case may be), for election to such position(s) as
specified in the Corporation's notice of meeting, if the stockholder's notice
required by Paragraph (b) of Section 9 of this Article I shall be delivered to
the Secretary at the principal executive offices of the Corporation not
earlier than the close of business on the 90th day prior to such special
meeting and not later than the close of business on the later of the 60th day
prior to such special meeting or the 10th day following the day on which
public announcement is first made of the date of the special meeting and of
the nominees proposed by the Board of Directors to be elected at such meeting.
In no event shall the public announcement of an adjournment of a special
meeting commence a new time period for the giving of a stockholder's notice as
described above.
Section 11. (a) Only such persons who are nominated in accordance with the
procedures set forth in Sections 9 and 10 of this Article I shall be eligible
to serve as directors and only such business shall be conducted at a meeting
of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in such Sections. The presiding officer of the
meeting shall have the power and duty to determine whether a nomination or any
business proposed to be brought before the meeting was made or proposed, as
the case may be, in accordance with the procedures set forth in these By-Laws,
and if any proposed nomination or business is not in compliance with these
By-Laws, to declare that such defective proposal shall be disregarded.
(b) For purposes of Sections 9 and 10 of this Article I, "public
announcement" shall mean disclosure in a press release reported by the Dow
Jones News Services, Associated Press, Reuters or comparable national news
service or in a document publicly filed by the Corporation with the Securities
and Exchange Commission pursuant to Section 13, 14 or 15(d) of the Exchange
Act.
(c) Notwithstanding the provisions of Sections 9, 10 and 11 of this
Article I, a stockholder shall also comply with all applicable requirements of
the Exchange Act and the rules and regulations thereunder with respect to the
matters set forth herein. Nothing in these By-Laws shall be deemed to affect
any rights (i) of stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) of the holders of any class or series of preferred or preference stock of
the Corporation to elect directors under specified circumstances.
Section 12. (a) In order that the Corporation may determine the stockholders
entitled to consent to corporate action in writing without a meeting, the
Board of Directors may fix a record date, which record date shall not precede
the date upon which the resolution fixing the record date is adopted by the
Board of Directors, and which date shall not be more than 10 days after the
date upon which the resolution fixing the record date is adopted by the Board
of Directors. Any stockholder of record seeking to have the stockholders
authorize or take corporate action by written consent shall, by written notice
to the Secretary, request the Board of Directors to fix a record date. The
Board of Directors shall promptly, but in all events within 10 days after the
date on which such a request is received, adopt a resolution fixing the record
date. If no record date has been fixed by the Board of Directors within 10
days of the date on which such a request is received, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting, when no prior action by the Board of Directors is required
by applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its principal place of business or to any officer
or agent of the Corporation having custody of the book in which proceedings of
meetings of stockholders are recorded. Delivery made to the Corporation's
registered office shall be by hand or by certified or registered mail, return
receipt requested. If no record date has been fixed by the Board of Directors
and prior action by the Board of Directors is required by applicable law, the
record date for determining stockholders entitled to consent to corporate
action in writing without a meeting shall be at the close of business on the
date on which the Board of Directors adopts the resolution taking such prior
action.
(b) In the event of the delivery, in the manner provided by this Section
12, to the Corporation of the requisite written consent or consents to take
corporate action and/or any related revocation or revocations, the Corporation
shall engage independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective
until such date as the independent inspectors certify to the Corporation that
the consents delivered to the Corporation in accordance with this Section 12
represent at least the minimum number of votes that would be necessary to take
the corporate action. Nothing contained in this Paragraph (b) of Section 12
shall in any way be construed to suggest or imply that the Board of Directors
or any stockholder shall not be entitled to contest the validity of any
consent or revocation thereof, whether before or after such certification by
the independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto), and the seeking of injunctive relief in such litigation.
ARTICLE II.
BOARD OF DIRECTORS
Section 1. The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. Except as otherwise fixed
pursuant to the provisions of the Restated Certificate of Incorporation
relating to the rights of the holders of any class or series of stock having a
preference over the Common Stock as to dividends or upon liquidation to elect
additional directors under specified circumstances, the number of directors
shall be as fixed in such manner as may be determined by the vote of not less
than a majority of the directors then in office, but shall not be less than
seven nor more than thirteen directors. The Board of Directors, excluding
however directors elected pursuant to the provisions of the Restated
Certificate of Incorporation relating to the rights of holders of any class or
series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional directors under specified circumstances,
shall be divided into three classes as provided in the Restated Certificate of
Incorporation. The directors shall be elected as provided in the Restated
Certificate of Incorporation at the annual meeting of stockholders, except as
provided in Section 2 of this Article II. Each director shall hold office for
the full term to which he shall have been elected and until his successor is
duly elected and shall qualify, or until his earlier death, resignation or
removal. A director need not be a resident of the State of Delaware or a
stockholder of the Corporation. Any person who is 72 years of age or more
(or, in the case of any person first elected or appointed as a director on or
after February 25, 1993, 70 years of age or more) shall not be eligible to
hold a directorship; provided, however, that any person who reaches the age of
72 (or, in the case of any person first elected or appointed as a director on
or after February 25, 1993, 70 years of age) while a director may serve the
remainder of his term of office but may not be reelected.
Section 2. Any vacancy in the Board of Directors, including vacancies
resulting from an increase in the number of directors, shall be filled by a
majority of the remaining members of the Board, though less than a quorum.
When newly created directorships are filled by the Board of Directors, there
shall be no classification of such additional directors until the next annual
meeting of stockholders. Subject to the foregoing, directors elected to fill
a vacancy shall hold office for a term expiring at the annual meeting at which
the term of the class to which they shall have been elected expires.
Section 3. Any director may resign at any time by written notice to the
Corporation. Any such resignation shall take effect at the date of receipt of
such notice or at any later time specified therein, and, unless otherwise
specified therein, the acceptance of such resignation shall not be necessary
to make it effective.
Section 4. Regular meetings of the Board of Directors shall be held at such
place or places within or without the State of Delaware, at such hour and on
such day as may be fixed by resolution of the Board of Directors, without
further notice of such meetings. The time or place of holding regular
meetings of the Board of Directors may be changed by the Chairman of the Board
or the Chief Executive Officer by giving written notice thereof as provided in
Section 6 of this Article II.
Section 5. Special meetings of the Board of Directors shall be held, whenever
called by the Chairman of the Board or the Chief Executive Officer, by a
majority of the Board of Directors or by resolution adopted by the Board of
Directors, at such place or places within or without the State of Delaware as
may be stated in the notice of the meeting.
Section 6. Written notice of the time and place of all special meetings of
the Board of Directors, and written notice of any change in the time or place
of holding the regular meetings of the Board of Directors, shall be given to
each director either personally or by mail, telephone, express delivery
service, facsimile, telex or similar means of communication at least one day
before the date of the meeting; provided, however, that notice of any meeting
need not be given to any director if waived by him in writing, or if he shall
be present at such meeting.
Section 7. A majority of the directors in office shall constitute a quorum of
the Board of Directors for the transaction of business; but a lesser number
may adjourn from day to day until a quorum is present. The directors present
at a duly organized meeting may continue to transact business until
adjournment, notwithstanding the withdrawal of enough directors to leave less
than a quorum, provided however, that such remaining directors constitute not
less than one-third of the total number of directors. Except as otherwise
provided by law or in these By-Laws, all questions shall be decided by the
vote of a majority of the directors present. Directors may participate in any
meeting of the directors, and members of any committee of directors may
participate in any meeting of such committee, by means of conference telephone
or similar communications equipment by means of which all persons
participating in such meeting can hear each other, and such participation
shall constitute presence in person at any such meeting.
Section 8. Any action which may be taken at a meeting of the directors or
members of any committee of directors may be taken without a meeting if a
consent in writing setting forth the action so taken shall be signed by all of
the directors or members of such committee of directors, as the case may be,
and shall be filed with the Secretary.
Section 9. Directors shall be entitled to such compensation for their
services as may be approved by the Board of Directors, including, if so
approved by resolution of the Board of Directors, a fixed sum and expenses of
attendance, if any, for attendance at each regular or special meeting of the
Board of Directors or any meeting of a committee of directors. No provision
of these By-Laws shall be construed to preclude any director from serving the
Corporation in any other capacity and receiving compensation therefor.
ARTICLE III.
COMMITTEES OF DIRECTORS
Section 1. The Board of Directors may, by resolution adopted by a majority of
the whole Board, designate one or more committees of the Board, including, as
they shall so determine, an Executive Committee, an Audit Committee and a
Compensation Committee. Any committee of the Board designated by the Board of
Directors shall consist of three or more of the directors of the Corporation.
Section 2. The Executive Committee, during intervals between meetings of the
Board of Directors and while the Board is not in session, shall have and
exercise all the powers and authority of the Board of Directors in the
management of the business and affairs of the Corporation, including (except
as otherwise limited by statute, the Restated Certificate of Incorporation or
these By-Laws) the power and authority to appoint officers and agents of the
Corporation, to approve guarantees, leases, contracts, notes, bonds and other
evidences of indebtedness, to declare dividends, to authorize the issuance of
stock, to adopt certificates of ownership and merger pursuant to the
provisions of the Delaware General Corporation Law, as the same exists or may
hereafter be amended ("DGCL"), and to approve commitments for expenditures
subject to such expenditure approval authority limits as the Board of
Directors may from time to time establish. In the absence of the appointment
of a Nominating Committee, the Executive Committee may also review possible
director candidates, including director recommendations properly presented by
stockholders, and recommend to the full Board individuals suited for election
as directors. The Executive Committee may recommend the establishment of
committees of the Board and review and recommend annually to the full Board
the slate of Board nominees for election by the Corporation's stockholders.
The Executive Committee may also review the qualifications of the
Corporation's commercial and investment bankers, review relations with the
Corporation's creditors, security holders and investment bankers and recommend
changes to the capital structure of the Corporation.
Section 3. The Audit Committee may make recommendations to the Board of
Directors concerning particular persons or firms to be employed by this
Corporation as its independent auditors and consult with the persons or firms
so chosen with regard to the plan of audit; review, in consultation with the
independent auditors, their audit report or proposed audit report and the
accompanying management letter, if any; consult with the independent auditors
periodically and out of the presence of management, if deemed appropriate,
with regard to the adequacy of internal reporting and controls, including
those concerning product hedging and trading activities; consult with internal
auditors, as appropriate, and review and approve the annual internal audit
program and internal audit reports; and review and recommend approval of
annual financial statements and other financial statements, as required, of
the Corporation. The Audit Committee may review and make recommendations to
the Board of Directors concerning the Corporation's conflict of interest
policy. The Audit Committee may also review the Corporation's compliance with
applicable environmental laws and regulations; review and approve internal
environmental assessment and compliance programs, as it shall deem
appropriate; and consult with such officers and employees of the Corporation,
and such independent persons or firms, as it shall deem appropriate, with
respect to environmental matters.
Section 4. The Compensation Committee may review the Corporation's
compensation policies and programs, review and adopt compensation and employee
benefit plans for the employees of the Corporation, administer the
Corporation's stock bonus plans, stock option plans, non-employee director
stock plans and other executive and director compensation arrangements,
approve amendments to and interpretations of all such plans for employees,
executive officers or directors, and have authority (which authority may be
delegated to the Chief Executive Officer) to appoint and remove, determine the
term of office of members of, and determine the size of any committee from
time to time administering employee benefit plans. The Compensation Committee
shall make recommendations to the full Board with respect to directors'
compensation and shall approve compensation and management succession
arrangements for the executive officers of the Corporation, provided however,
that compensation and management succession arrangements for the Chief
Executive Officer and the President shall be approved by the Board upon
recommendation of the Compensation Committee. The Compensation Committee may
also delegate to the Chief Executive Officer the authority to approve and
cause to be placed into effect amendments to employee benefit plans deemed
necessary or appropriate in order to comply with any applicable federal or
state statute or regulation or otherwise deemed advisable by the Chief
Executive Officer, provided however, that each such amendment or related
series of amendments so approved shall involve costs to the Corporation not
exceeding the expenditure approval authority of the Chief Executive Officer as
established from time to time by the Board, and provided further, that no such
amendment shall be approved by the Chief Executive Officer if such amendment
would (a) materially increase the benefits accruing to participants under such
plan, (b) materially modify the requirements for eligibility for participation
in such plan, (c) increase the securities issuable under such plan or (d)
require stockholder approval under any provision of the Restated Certificate
of Incorporation, these By-Laws, or any federal or state statute or regulation
or the rules of the New York Stock Exchange.
Section 5. Any other committee of the Board designated by the Board of
Directors shall have and may, except as otherwise limited by statute, the
Restated Certificate of Incorporation or these By-Laws, exercise such powers
and authority of the Board of Directors in the management of the business of
the Corporation as may be provided in the resolution adopted by the Board of
Directors designating such committee of the Board. Each committee of the
Board may authorize the seal of the Corporation to be affixed to all papers
which may require it. The Board of Directors may designate one or more
directors as alternate members of any committee of the Board who may replace
any absent or disqualified member at any meeting of such committee. In the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not such member or members constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Such
committee or committees shall have such name or names and such limitations of
authority as may be determined from time to time by resolution adopted by the
Board of Directors.
Section 6. Each committee of directors shall keep regular minutes of its
proceedings and report the same to the Board of Directors when required.
Section 7. Members of special or standing committees of the Board shall be
entitled to receive such compensation for serving on such committees as the
Board of Directors shall determine.
ARTICLE IV.
CHAIRMAN OF THE BOARD
Section 1. The Chairman of the Board of Directors, if there be one, shall be
elected from among the directors, shall have the power to preside at all
meetings of the Board of Directors, and shall have such other powers and shall
be subject to such other duties as the Board of Directors may from time to
time prescribe.
ARTICLE V.
OFFICERS
Section 1. The officers of the Corporation shall consist of a Chief Executive
Officer, a President, one or more Vice Presidents, any one or more of which
may be designated an Executive Vice President or a Senior Vice President, a
General Counsel, a Chief Financial Officer, a Secretary, a Treasurer and a
Controller. The Board of Directors may appoint such other officers and
agents, including Assistant Vice Presidents, Assistant Secretaries and
Assistant Treasurers, as it shall deem necessary, who shall hold their offices
for such terms and shall exercise such powers and perform such duties as shall
be determined by the Board. Any two or more offices may be held by the same
person.
Section 2. The officers of the Corporation shall be elected annually by the
Board of Directors at a regular meeting of the Board of Directors held
immediately prior to, or immediately following, the annual meeting of
stockholders, or as soon thereafter as conveniently possible. Each officer
shall hold office until his successor shall have been chosen and shall have
qualified or until his death or the effective date of his resignation or
removal.
Section 3. Any officer or agent elected or appointed by the Board of
Directors or the Executive Committee may be removed without cause by the Board
of Directors whenever, in its judgment, the best interests of the Corporation
shall be served thereby, but such removal shall be without prejudice to the
contractual rights, if any, of the person so removed. Any officer may resign
at any time by giving written notice to the Corporation. Any such resignation
shall take effect at the date of the receipt of such notice or at any later
time specified therein, and unless otherwise specified therein, the acceptance
of such resignation shall not be necessary to make it effective.
Section 4. Any vacancy occurring in any office of the Corporation by death,
resignation, removal or otherwise, may be filled by the Board of Directors for
the unexpired portion of the term.
Section 5. The salaries of all officers and agents of the Corporation shall
be fixed by the Board of Directors or pursuant to its direction; and no
officer shall be prevented from receiving such salary by reason of his also
being a director.
Section 6. The the Chief Executive Officer, the President and each Vice
President shall have authority to sign any deeds, bonds, mortgages,
guarantees, indemnities, contracts, checks, notes, drafts or other instruments
authorized to be executed by the Board of Directors or any duly authorized
committee thereof, or if so authorized in any approval authority policy or
procedure adopted by or at the direction of the Board, or if not inconsistent
with the Restated Certificate of Incorporation, these By-laws, any action of
the Board of Directors or any duly authorized committee thereof or any such
policy or procedure, and, together with the Secretary or any other officer of
the Corporation thereunto authorized by the Board or the Executive Committee,
may sign any certificates for shares of the Corporation which the Board or the
Executive Committee has authorized to be issued, except in cases where the
signing and execution of any such instrument or certificate has been expressly
delegated by these By-Laws or by the Board or the Executive Committee to some
other officer or agent of the Corporation or shall be required by law to be
otherwise executed.
Section 7. The Chief Executive Officer shall serve as general manager of the
business and affairs of the Corporation and shall report directly to the Board
of Directors, with all other officers, officials, employees and agents
reporting directly or indirectly to him. The Chief Executive Officer shall
preside at all meetings of the stockholders. In the absence of the Chairman
of the Board, or if there is no Chairman of the Board, the Chief Executive
Officer shall also preside at all meetings of the Board of Directors unless
the Board of Directors shall have chosen another presiding officer. The Chief
Executive Officer shall formulate and submit to the Board of Directors or the
Executive Committee matters of general policy for the Corporation; he shall
keep the Board of Directors and Executive Committee fully informed and shall
consult with them concerning the business of the Corporation. Subject to the
supervision, approval and review of his actions by the Board of Directors, the
Chief Executive Officer shall have authority to cause the employment or
appointment of and the discharge of assistant officers, employees and agents
of the Corporation, and to fix their compensation; and to suspend for cause,
pending final action by the Board of Directors or Executive Committee, any
officer subordinate to the Chief Executive Officer. The Chief Executive
Officer shall vote, or give a proxy to any other officer of the Corporation to
vote, all shares of stock of any other corporation (or any partnership or
other interest in any partnership or other enterprise) standing in the name of
the Corporation, and in general he shall perform all other duties normally
incident to such office and such other duties as may be prescribed from time
to time by the Board of Directors or the Executive Committee. The Chief
Executive Officer shall designate the person or persons who shall exercise his
powers and perform his duties in his absence or disability and the absence or
disability of the President.
Section 8. The President shall be the chief operating officer of the
Corporation and, subject to the control of the Board of Directors and Chief
Executive Officer, shall in general supervise and control the business
operations of the Corporation. In the absence of the Chairman of the Board
and the Chief Executive Officer, the President shall preside at all meetings
of the Board of Directors and, in the absence of the Chief Executive Officer,
he shall preside at all meetings of the stockholders of the Corporation,
unless in either case the Board of Directors shall have chosen another
presiding officer. He shall keep the Chief Executive Officer fully informed
and shall consult with him concerning the business of the Corporation. He
shall perform all other duties normally incident to such office and such other
duties as may be prescribed from time to time by the Board of Directors, the
Executive Committee or the Chief Executive Officer. In the absence or
disability of the Chief Executive Officer, the President shall exercise the
powers and perform the duties of the Chief Executive Officer, unless such
authority shall have been designated by the Board of Directors, Executive
Committee or Chief Executive Officer to another person.
Section 9. The Vice Presidents shall perform all duties normally incident to
such office and such other duties as may be prescribed from time to time by
the Board of Directors, the Executive Committee, the Chief Executive Officer
or the President.
Section 10. The General Counsel, as the chief legal officer of the
Corporation, shall have charge of all matters of legal importance to the
Corporation and shall keep the Board of Directors, the Executive Committee,
the Chief Executive Officer and the President advised of the character and
progress of all legal proceedings and claims by and against the Corporation,
or in which it is interested by reason of its ownership of or affiliation with
other corporations or entities; when requested by the Board of Directors, the
Executive Committee, the Chief Executive Officer or the President, render his
opinion upon any subjects of interest to the Corporation which may be referred
to him; monitor activities of the Corporation to assure that the Corporation
complies with the laws applicable to the Corporation and in general perform
all other duties normally incident to such office and such other duties as may
be prescribed from time to time by the Board of Directors, the Executive
Committee, the Chief Executive Officer or the President.
Section 11. The Chief Financial Officer shall be the principal financial
officer of the Corporation and, unless the Board of Directors shall so
designate another officer, shall also be the principal accounting officer of
the Corporation. The Chief Financial Officer shall in general supervise and
control the keeping and maintaining of proper and correct accounts of the
Corporation's assets, liabilities, receipts, disbursements, gains, losses,
capital, surplus, shares, properties and business transactions, as well as all
funds, securities, evidences of indebtedness and other valuable documents of
the Corporation. He shall keep the Chief Executive Officer fully informed and
shall consult with him concerning financial matters affecting the Corporation
and shall render such reports to the Board of Directors, the Executive
Committee, the Chief Executive Officer or the President as they may request.
He shall perform all other duties normally incident to such office and such
other duties as may be prescribed from time to time by the Board of Directors,
the Executive Committee, the Chief Executive Officer or the President.
Section 12. The Secretary shall attend, and record and have custody of, the
minutes of the meetings of the stockholders, the Board of Directors and
committees of directors; see that all notices are duly given in accordance
with the provisions of these By-Laws and as required by law; be custodian of
the corporate records and of the seal of the Corporation; sign with the
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President, certificates for shares of the Corporation, the issue of which
shall have been authorized by resolution of the Board of Directors or the
Executive Committee; and in general, perform all duties normally incident to
such office and such other duties as may be prescribed from time to time by
the Board of Directors, the Executive Committee, the Chief Executive Officer
or the President.
Section 13. The Treasurer shall have charge and custody of and be responsible
for all funds of the Corporation; and in general, perform all the duties
incident to such office and such other duties as may be prescribed from time
to time by the Board of Directors, the Executive Committee, the Chief
Executive Officer or the President.
Section 14. The Controller shall have charge and supervision of and be
responsible for the accounting function of the Corporation and, in general
perform all duties incident to such office and such other duties as may be
prescribed from time to time by the Board of Directors, the Executive Chief
Executive Officer or the President.
ARTICLE VI.
SEAL
The seal of the Corporation shall be in such form as the Board of Directors
shall prescribe.
ARTICLE VII.
CERTIFICATES OF STOCK
The shares of stock of the Corporation shall be represented by certificates of
stock, signed by the the Chief Executive Officer, the President or such Vice
President or other officer as may be designated by the Board of Directors or
the Executive Committee, and countersigned by the Secretary or an Assistant
Secretary; and if such certificates of stock are signed or countersigned by a
transfer agent other than the Corporation, or by a registrar other than the
Corporation, such signature of the Chief Executive Officer, President, Vice
President, or other officer, and such countersignature of the Secretary or an
Assistant Secretary, or any of them, may be executed in facsimile, engraved or
printed. In case any officer who has signed or whose facsimile signature has
been placed upon any share certificate shall have ceased to be such officer
because of death, resignation or otherwise before the certificate is issued,
it may be issued by the Corporation with the same effect as if the officer had
not ceased to be such at the date of its issuance. Said certificate of stock
shall be in such form as the Board of Directors may from time to time
prescribe.
ARTICLE VIII.
INDEMNIFICATION
Section 1. Each director or officer of the Corporation who was or is made a
party or is threatened to be made a party to or is involved in any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (hereinafter a "proceeding"), by reason of the
fact that he, or a person of whom he is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise,
including service with respect to employee benefit plans, whether the basis of
such proceeding is alleged action in an official capacity while serving as a
director, officer, employee or agent, shall be indemnified and held harmless
by the Corporation to the fullest extent authorized by the DGCL (but, in the
case of any amendment thereto, only to the extent that such amendment permits
the Corporation to provide broader indemnification rights than said law
permitted the Corporation to provide prior to such amendment), against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by such person in connection
therewith and such indemnification shall continue as to a person who has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of his heirs, executors and administrators. The right to
indemnification conferred in this Section shall be a contract right and shall
include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition; provided,
however, that, if the DGCL requires, the payment of such expenses incurred by
a director or officer in his capacity as a director or officer (but not in any
other capacity in which service was or is rendered by such person while a
director or officer, including, without limitation, service with respect to an
employee benefit plan) in advance of the final disposition of a proceeding
shall be made only upon delivery to the Corporation of an undertaking, by or
on behalf of such director or officer, to repay all amounts so advanced if it
shall ultimately be determined that such director or officer is not entitled
to be indemnified under the applicable provisions of the DGCL. The
Corporation may, by action of its Board of Directors or as required pursuant
to the Restated Certificate of Incorporation, provide indemnification to
employees and agents of the Corporation with the same scope and effect as the
foregoing indemnification of directors and officers.
Section 2. The indemnification and advancement of expenses provided herein
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any
agreement, vote of stockholders, vote of disinterested directors, insurance
arrangement or otherwise, both as to action in his official capacity and as to
action in another capacity or holding such office.
ARTICLE IX.
AMENDMENTS
These By-Laws may be altered, amended, added to or repealed by the
stockholders at any annual or special meeting, by the vote of stockholders
entitled to cast at least a majority of the votes which all stockholders are
entitled to cast, and, except as may be otherwise required by law, the power
to alter, amend, add to or repeal these By-Laws is also vested in the Board of
Directors, acting by a majority vote of the members of the Board of Directors
in office (subject always to the power of the stockholders to change such
action).
EXHIBIT 5.1
April 30, 1996
Board of Directors
Valero Energy Corporation
530 McCullough Avenue
San Antonio, TX 78215
Ladies & Gentlemen:
I am the Corporate Secretary and Managing Attorney of Valero Energy
Corporation, a Delaware corporation ("Valero"), and have acted as counsel for
Valero in connection with the proposed offering of up to 100,000 shares of
Common Stock, $1.00 par value per share, of Valero (the "Shares"), together
with up to 100,000 Preference Share Purchase Rights ("Rights") of Valero,
pursuant to the Valero Energy Corporation Non-Employee Director Stock Option
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 October 26, 1995, between Valero and Harris Trust &
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 (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 Preference 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/ Rand C. Schmidt
Rand C. Schmidt
Corporate Secretary and
Managing Attorney
RCS/dmh
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,
1996, included in Valero Energy Corporation's Form 10-K for the year ended
December 31, 1995, and to all references to our Firm included in this
registration statement.
/s/ Arthur Andersen LLP
San Antonio, Texas
April 30, 1996
