UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): May 24, 2011
VALERO ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Delaware | 1-13175 | 74-1828067 | ||
(State or other Jurisdiction of Incorporation) | (Commission File Number) | (IRS Employer Identification No.) |
One Valero Way
San Antonio, Texas |
78249 | |
(Address of Principal Executive Offices) | (Zip Code) |
Registrants telephone number, including area code: (210) 345-2000
(Former name or former address if changed since last report.) |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 8.01. Other Events.
The following provides a description of the capital stock of Valero Energy Corporation (Valero).
Description of Capital Stock
The following description is a summary of the material terms of our common stock, preferred stock, amended and
restated certificate of incorporation (as amended to date, the Certificate of Incorporation) and amended and restated
bylaws (as amended to date, the Bylaws). This summary is qualified by reference to our Certificate of Incorporation
and Bylaws, copies of which have been included as exhibits hereto and are incorporated herein by reference, and by the
provisions of applicable law.
Common Stock
Our authorized common stock consists of 1,200,000,000 shares, par value $0.01 per share, of which 570,250,193
shares were outstanding as of April 29, 2011. Each share of common stock is entitled to participate equally in
dividends as and when declared by our board of directors. The payment of dividends on our common stock may be limited
by obligations we may have to holders of any preferred stock.
Common stockholders are entitled to one vote for each share held on all matters submitted to them. Our common
stock does not have cumulative voting rights, meaning that holders of a majority of the shares of common stock voting
for the election of directors can elect all the directors if they choose to do so.
If we liquidate or dissolve our business, the holders of common stock will share ratably in the distribution of
assets available for distribution to stockholders after creditors are paid and preferred stockholders receive their
distributions. The shares of common stock have no preemptive rights and are not convertible, redeemable or assessable
or entitled to the benefits of any sinking fund.
All issued and outstanding shares of common stock are fully paid and nonassessable.
Our common stock is listed on the New York Stock Exchange and trades under the symbol VLO.
Preferred Stock
Our authorized preferred stock consists of 20,000,000 shares, par value $0.01 per share, issuable in series, of
which no shares were outstanding as of April 29, 2011. Our board of directors can, without action by stockholders,
issue one or more series of preferred stock. The board can determine for each series the number of shares, designation,
relative voting rights, dividend rates, liquidation and other rights, preferences and limitations. In some cases, the
issuance of preferred stock could delay or discourage a change in control of Valero.
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The issuance of preferred stock, while providing desired flexibility in connection with possible acquisitions and
other corporate purposes, could adversely affect the voting power of holders of our common stock. It could also affect
the likelihood that holders of our common stock will receive dividend payments and payments upon liquidation.
Anti-Takeover Provisions
The provisions of Delaware law and our Certificate of Incorporation and Bylaws summarized below may have an
anti-takeover effect and may delay, deter or prevent a tender offer or takeover attempt that a stockholder might
consider in his or her best interest, including those attempts that might result in a premium over the market price for
our common stock.
Fair Price Provision
Our Certificate of Incorporation contains a fair price provision. Mergers, consolidations and other business
combinations involving us and an interested stockholder require the approval of holders of at least 66 2/3% of our
outstanding voting stock not owned by the interested stockholder. Interested stockholders include any holder of 15% or
more of our outstanding voting stock. The 66 2/3% voting requirement does not apply, however, if the continuing
directors, as defined in the Certificate of Incorporation approve the business combination, or the business
combination meets other specified conditions.
Liability of Our Directors
As permitted by the Delaware General Corporation Law, we have included in our Certificate of Incorporation a
provision that limits our directors liability for monetary damages for breach of their fiduciary duty of care to us
and our stockholders. The provision does not affect the liability of a director:
This provision also does not affect a directors responsibilities under any other laws, such as the federal
securities laws or state or federal environmental laws.
Stockholder Proposals and Director Nominations
Our stockholders can submit stockholder proposals and nominate candidates for our board of directors if the
stockholders follow advance notice procedures described in the Bylaws.
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Generally, stockholders must submit a written notice between 60 and 90 days before the first anniversary of the
date of our previous years annual stockholders meeting. To nominate directors, the notice must include the name and
address of the stockholder, the class or series and number of shares beneficially owned by the stockholder, information
about the nominee required by the SEC and a description of any arrangements or understandings with respect to the
election of directors that exist between the stockholder and any other person. To make stockholder proposals, the
notice must include a description of the proposal, the reasons for bringing the proposal before the meeting, the name
and address of the stockholder, the class and number of shares owned by the stockholder and any material interest of
the stockholder in the proposal.
In each case, if we have changed the date of the annual meeting to more than 30 days before or 60 days after the
anniversary date of our previous years annual stockholders meeting, stockholders must submit the notice between 60
and 90 days prior to such annual meeting or no later than 10 days after the day we make public the date of the annual
meeting.
Director nominations and stockholder proposals that are late or that do not include all required information may
be rejected. This could prevent stockholders from bringing certain matters before an annual meeting, including making
nominations for directors.
Delaware Anti-takeover Statute
We are a Delaware corporation and are subject to Section 203 of the Delaware General Corporation Law. In general,
Section 203 prevents us from engaging in a business combination with an interested stockholder (generally, a person
owning 15% or more of our outstanding voting stock) for three years following the time that person becomes a 15%
stockholder unless one of the following is satisfied:
Under Section 203, these restrictions also do not apply to certain business combinations proposed by a 15%
stockholder following the disclosure of an extraordinary transaction with a person who was not a 15% stockholder during
the previous three years or who became a 15% stockholder with the approval of a majority of our directors. This
exception applies only if the extraordinary transaction is approved or not opposed by a majority of our directors who
were directors before any person became a 15% stockholder in the previous three years, or the successors of these
directors.
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Other Provisions
The Certificate of Incorporation also provides that:
Transfer Agent and Registrar
Computershare Investor Services, LLC, is our transfer agent and registrar.
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Item 9.01. Exhibits.
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Exhibit Number
4.1
4.2
4.3
4.4
4.5
4.6
4.7
4.8*
4.9
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the Company has duly caused this report to be
signed on its behalf by the undersigned hereunto duly authorized.
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VALERO ENERGY CORPORATION
By:
/s/ Jay D. Browning
Jay D. Browning
Senior Vice President-Corporate Law
and Secretary
Exhibit 4.8
FOURTH CERTIFICATE OF AMENDMENT
TO THE RESTATED CERTIFICATE OF INCORPORATION
OF
VALERO ENERGY CORPORATION
Valero Energy Corporation, a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware (DGCL), hereby adopts this Certificate of Amendment (this Certificate of Amendment) which amends its Restated Certificate of Incorporation, as amended by the Certificate of Designation filed July 31, 1997; the Certificate of Amendment filed July 31, 1997; the Certificate of Merger filed December 31, 2001; the Certificate of Designation filed June 30, 2003; the Certificate of Amendment filed September 17, 2004; the Certificate of Merger filed August 31, 2005, effective September 1, 2005; and the Certificate of Amendment filed December 2, 2005 (as amended, the Restated Certificate of Incorporation), as described below, and does hereby further certify that:
1. The name of the corporation is Valero Energy Corporation.
2. At a meeting of the board of directors of Valero Energy Corporation, resolutions were duly adopted setting forth a proposed amendment of the Restated Certificate of Incorporation of the corporation, as set forth below, declaring said amendment to be advisable and recommending the adoption thereof by the stockholders of the corporation at the next annual meeting of stockholders.
RESOLVED, that the Restated Certificate of Incorporation of Valero Energy Corporation shall be amended and restated by amending and restating paragraphs 2, 3, and 4 of Article V thereof into two paragraphs numbered (2) and (3) to read as follows:
(2) Number of Directors. The number of Directors which shall constitute the whole Board of Directors shall be as specified from time to time in the By - Laws of the corporation (but in any event not fewer than five (5)), except in the case of an increase in the number of Directors by reason of any default provisions with respect to any outstanding series of Preferred Stock. Each Director shall serve for a term ending on the first annual meeting following the annual meeting at which such director was elected. The foregoing notwithstanding, each Director shall serve until his or her successor shall have been qualified, or until he or she becomes disabled or is otherwise removed. For purposes of this Paragraph (2) of this Article V, reference to the first election of Directors shall signify the first election of Directors concurrent with or following the first date on which this Article V shall become effective in accordance with the laws of Delaware.
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(3) Election and Removal of Directors. At each annual meeting of stockholders, Directors chosen to succeed those whose terms then expire shall be elected for a full term of office expiring at the first succeeding annual meeting of stockholders after their election. Subject to the foregoing, Directors elected to fill a vacancy shall hold office for a term expiring at the first succeeding annual meeting of stockholders after their election. No decrease in the number of Directors constituting the Board of Directors shall shorten the term of any incumbent Director. Subject to the rights of the holders of any series of Preferred Stock or any other series or class of stock as set forth in this Restated Certificate of Incorporation to elect additional directors under specific circumstances, any director may be removed from office at any time, but only for cause and only by the affirmative vote of the holders of at least 60 percent of the voting power of the then outstanding voting stock, voting together as a single class.
3. Thereafter, the corporations annual meeting of stockholders was held in accordance with the DGCL, at which meeting the necessary number of shares as required by statute and the corporations Restated Certificate of Incorporation were voted in favor of the amendment.
4. The amendment was duly adopted in accordance with the provisions of Section 242 of the DGCL.
5. Pursuant to Section 103(d) of the DGCL, the amendment will become effective upon its filing with the Secretary of State of the State of Delaware
IN WITNESS WHEREOF, the corporation has caused this certificate to be executed on its behalf this 24th day of May, 2011.
VALERO ENERGY CORPORATION
by:
/s/ Jay D. Browning
Jay D. Browning
Senior Vice President-Corporate Law
and Secretary
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