-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, My4toyX4VhUHlZV0PIeQy/V8XX4+Gcz4qZT31hjRs7uAzbFVhl+yAZUNOJHjDjyX 7Akb18zZgpVm8LdV9pk9+Q== 0000903423-97-000171.txt : 19970924 0000903423-97-000171.hdr.sgml : 19970924 ACCESSION NUMBER: 0000903423-97-000171 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 19970923 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VALERO ENERGY CORP/TX CENTRAL INDEX KEY: 0001035002 STANDARD INDUSTRIAL CLASSIFICATION: PETROLEUM REFINING [2911] IRS NUMBER: 741828067 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: SEC FILE NUMBER: 005-51415 FILM NUMBER: 97684292 BUSINESS ADDRESS: STREET 1: 7990 WEST IH10 CITY: SAN ANTONIO STATE: TX ZIP: 78230 BUSINESS PHONE: 2102462000 MAIL ADDRESS: STREET 1: 7990 WEST IH10 CITY: SAN ANTONIO STATE: TX ZIP: 78230 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: SALOMON INC CENTRAL INDEX KEY: 0000200245 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY BROKERS, DEALERS & FLOTATION COMPANIES [6211] IRS NUMBER: 221660266 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: SEVEN WORLD TRADE CNTR STREET 2: 28TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10048 BUSINESS PHONE: 2127837000 MAIL ADDRESS: STREET 1: SEVEN WORLD TRADE CENTER STREET 2: 29TH FLOOR CITY: NEW YORK STATE: NY ZIP: 10048 FORMER COMPANY: FORMER CONFORMED NAME: PHIBRO CORP DATE OF NAME CHANGE: 19820526 FORMER COMPANY: FORMER CONFORMED NAME: ENGELHARD MINERALS & CHEMICALS CORP DATE OF NAME CHANGE: 19811104 SC 13D/A 1 ------------------------- OMB APPROVAL ------------------------- OMB Number: 3235-0145 Expires: October 31, 1997 Estimated average burden hours per form......14.90 ------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 (Amendment No. 2)* Valero Energy Corporation (formerly Valero Refining and Marketing Company) - ----------------------------------------------------------------- (Name of Issuer) Common Stock, par value $.01 per share - ----------------------------------------------------------------- (Title of Class of Securities) 91913Y100 ------------------------------------ (CUSIP Number) c/o Arnold S. Olshin, Salomon Inc Seven World Trade Center, New York, New York 10048 (212) 783-7000 - ----------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) September 22, 1997 ------------------------------------ (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box. [ ] Note: Six copies of this statement, including all exhibits, should be filed with the Commission. See Rule 13d-1(a) for other parties to whom copies are to be sent. *The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). SCHEDULE 13D - ----------------------- ------------------------ CUSIP No. 91913Y100 Page 2 of 5 Pages - ----------------------- ------------------------ - ------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Salomon Inc 22-1660266 - ------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ X ] - ------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF, 00 - ------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ X ] - ------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - ------------------------------------------------------------------------- 7 SOLE VOTING POWER 0 shares NUMBER OF SHARES ------------------------------------------------------- BENEFICIALLY 8 SHARED VOTING POWER OWNED BY EACH REPORTING ------------------------------------------------------- PERSON 9 SOLE DISPOSITIVE POWER WITH 0 shares ------------------------------------------------------- 10 SHARED DISPOSITIVE POWER - ------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0 shares - ------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.0% - ------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* CO, HC - ------------------------------------------------------------------------- *SEE INSTRUCTIONS BEFORE FILLING OUT! INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7 (INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION. Salomon Inc hereby amends its Statement on Schedule 13D relating to the Common Stock, par value $.01 per share, of Valero Energy Corporation (formerly Valero Refining and Marketing Company) (the "Issuer") dated August 11, 1997 (as amended by an Amendment No. 1, dated September 15, 1997, the "Schedule 13D"), as set forth below. All terms defined in the Schedule 13D have the same meaning in this Amendment No. 2. Item 4. Purpose of Transaction. The fourth sentence of the third paragraph of this item as set forth in the Schedule 13D is hereby deleted and the following is inserted at the end of this item: "In accordance with the discussions between the Issuer and Salomon Inc referred to in the foregoing paragraph, the Issuer and Salomon Inc have entered into a First Amendment and Waiver, dated as of September 22, 1997 (the "Waiver Agreement"). A copy of the Waiver Agreement is attached hereto as Exhibit 2 and is incorporated herein by reference. Under the Waiver Agreement, the Issuer has agreed, among other things, to waive (x) the lock-up provisions of the Stockholder Agreement so as to permit the sale by Salomon Inc of all, but not fewer than all, of Salomon Inc's shares of Common Stock (the "Salomon Shares") in a transaction or series of related transactions (i) consummated prior to September 30, 1997, (ii) resulting in gross cash proceeds to Salomon Inc of not less than $33.00 per share of Common Stock and (iii) involving a bona fide, broad public offering and distribution of such shares and (y) the Issuer's right of first offer with respect to such shares. Accordingly, Salomon Inc has sold all of the Salomon Shares to third parties in connection with a public offering (the "Offering"), in which SBI is acting as the agent for Salomon Inc. It is anticipated that the delivery of the Salomon Shares to the purchasers of such shares will be made on or about September 26, 1997. In connection with the Offering, SBI may, in each case in accordance with Rule 104 of Regulation M under the 1934 Act, prevailing market conditions and SBI's judgment with respect to the necessity and desirability thereof, (x) place or effect, as the case may be, stabilizing bids or purchases with respect to the Common Stock or (y) effect syndicate covering transactions to purchase shares of Common Stock in the open market to cover all or a portion of a short position, if any, resulting from the Offering. Other than as described above, neither Salomon Inc nor, to the best knowledge of Salomon Inc, SBI or any of the persons listed in Annex A hereto has any plans or proposals that relate to or would result in any transactions involving the Issuer or any of its subsidiaries or securities of the type or kind listed in Item 4 of Schedule 13D adopted by the SEC under the 1934 Act." Item 5. Interest in Securities of the Issuer. (a-b) The following is inserted at the end of this item as set forth in the Schedule 13D: Page 3 of 5 Pages "As a result of the disposition of the Salomon Shares pursuant to the Offering, as more fully described in Item 4, Salomon Inc beneficially owns no shares of Common Stock as of the date hereof. Accordingly, Salomon Inc beneficially owns 0.0% of the outstanding shares of Common Stock." Item 6. Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. This item as set forth in the Schedule 13D is deleted and the following is inserted in its place: "Other than the provisions of the Stockholder Agreement, the Waiver Agreement and the agreements, arrangements and relationships existing or contemplated in connection with the distribution by SBI (as the agent for Salomon Inc) of the Salomon Shares pursuant to the Offering, as more fully described in Item 4, neither Salomon Inc nor, to the best knowledge of Salomon Inc, SBI or any of the persons listed in Annex A hereto has any contracts, arrangements, understandings or relationships (legal or otherwise) with any person with respect to securities of the Issuer." Item 7. Material to Be Filed as Exhibits. The following is inserted after Exhibit 1 of this item as set forth in the Schedule 13D: "Exhibit 2. First Amendment and Waiver, dated as of September 22, 1997, between the Issuer and Salomon Inc" Page 4 of 5 Pages SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: September 23, 1997 SALOMON INC By /s/ Arnold S. Olshin ------------------------- Name: Arnold S. Olshin Title: Secretary Page 5 of 5 Pages EX-4 2 FIRST AMENDMENT AND WAIVER dated as of September 22, 1997, to the STOCKHOLDER AGREEMENT dated as of May 1, 1997 (the "Original Agreement"), between VALERO ENERGY CORPORATION, formerly known as Valero Refining and Marketing Company, a Delaware corporation (the "Company"), and SALOMON INC, a Delaware corporation ("Stockholder"). WHEREAS the Company and Stockholder are parties to the Original Agreement, which provides, among other things, for certain restrictions on transfer by Stockholder of the Spin-Off Shares (capitalized terms used and not defined in this Amendment and Waiver have the meanings assigned such terms in the Original Agreement); and WHEREAS the Company has agreed, on the terms and subject to the conditions set forth in this Amendment and Waiver, to waive certain of such restrictions. NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: SECTION 1. Amendment and Waiver. (a) Notwithstanding Section 3.02 of the Original Agreement, Stockholder may sell all, but not less than all, the Spin-Off Shares in a transaction or series of related transactions (a "Permitted Transaction") that: (i) is consummated prior to September 30, 1997; (ii) results in cash proceeds to Stockholder (before selling commissions or discounts and other expenses) of not less than $33.00 per Spin-Off Share; and 2 (iii) involves a bona fide, broad public offering and distribution of the Spin-Off Shares. (b) The Company hereby waives its rights under Section 3.04 with respect to any Permitted Transaction. SECTION 2. Permitted Transaction Procedures. (a) Officer's Certificate. On the settlement date for a Permitted Transaction (the "Closing Date"), the Company shall furnish to Stockholder a certificate of the Company, signed by the Executive Vice President and Chief Financial Officer of the Company, in form and substance satisfactory to Stockholder. (b) Opinion. On the Closing Date, the Company shall furnish to Stockholder the opinion of Gregory C. King, General Counsel of the Company, in form and substance satisfactory to Stockholder. (c) Indemnification. (i) By the Company. The Company agrees, in connection with a Permitted Transaction, to indemnify Stockholder, its officers, directors, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) Stockholder or such other indemnified Person and the officers, directors, employees and agents of such control Persons or other indemnified Persons against all losses, claims, damages, liabilities and expenses, including, without limitation, reasonable attorneys' fees and expenses (collectively, "Losses"), as incurred, caused by, resulting from or relating to (i) any untrue or alleged untrue statement of material fact contained in the Form S-1 (including the Prospectus), the Form 10-Q or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading or (ii) any violation by the 3 Company of any Federal or state law, rule or regulation applicable to the Company and relating to any action required of, or inaction required by, the Company with respect to the Form S-1 (including the Prospectus), the Form 10-Q or any amendment thereto or supplement thereof; provided, however, that the Company's liability under this indemnity shall not exceed the amount of net proceeds received by Stockholder from the sale of Spin-Off Shares in a Permitted Transaction. (ii) By Stockholder. In connection with a Permitted Transaction, Stockholder shall indemnify the Company, its directors, officers, employees and agents and each Person who controls (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) the Company or such other indemnified Person and the officers, directors, employees and agents of such control Persons or other indemnified Persons against all Losses, as incurred, caused by, resulting from or relating to any untrue or alleged untrue statement of material fact contained in any offering memorandum or other offering materials used in connection with a Permitted Transaction (other than any attachment thereto consisting of the Form S-1 or the Form 10-Q) or any amendment thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, but only to the extent that such untrue statement or omission or alleged untrue statement or omission is caused by, results from or relates to, or is alleged to be omitted from, the information in such offering memorandum or such other offering materials prepared or furnished by Stockholder; provided, however, that Stockholder shall not be liable for any claims hereunder in excess of the amount of net proceeds received by Stockholder from the sale of Spin-Off Shares in a Permitted Transaction. 4 (iii) Notice. Notice shall be in accordance with Section 11(g) of the Purchase Agreement. (iv) Defense of Actions. Defense of actions shall be in accordance with Section 11(g) of the Purchase Agreement. (v) Survival. The indemnification provided for herein shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified Person and will survive the transfer of the Spin-Off Shares. (vi) Contribution. If the indemnification provided for in this Section 2(c) is unavailable to an indemnified party or is insufficient to hold such indemnified party harmless for any Losses in respect of which this Section 2(c) would otherwise apply by its terms, then the indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such Losses, in such proportion as is appropriate to reflect the relative fault of the indemnifying party, on the one hand, and such indemnified party, on the other hand, in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations. The relative fault of such indemnifying party, on the one hand, and the indemnified party, on the other hand, shall be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, has been taken by, or relates to information supplied by, each indemnifying party or indemnified party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent any such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include any legal or other fees or expenses 5 incurred by such party, to the extent such party would have been indemnified for such expenses if the indemnification provided for in Section 2(c)(i) or 2(c)(ii) was available to such party. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 2(c)(vi) were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in this Section 2(c)(vi). No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not found guilty of such fraudulent misrepresentation. SECTION 3. Miscellaneous. (a) Except as expressly set forth in this Amendment and Waiver, all the provisions of the Original Agreement shall remain in full force and effect. (b) This Amendment and Waiver and all the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective heirs, executors, successors and permitted assigns, but, except as expressly contemplated herein, neither this Amendment and Waiver nor any of the rights, interests or obligations hereunder shall be assigned, directly or indirectly, by the Company or Stockholder without the prior written consent of the other. (c) This Amendment and Waiver may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 6 (d) THIS AMENDMENT AND WAIVER SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF. IN WITNESS WHEREOF, the undersigned hereby agree to be bound by the terms and provisions of this Amendment and Waiver as of the date first above written. VALERO ENERGY CORPORATION, By:__________________________ Name: Title: SALOMON INC, By:__________________________ Name: Title: -----END PRIVACY-ENHANCED MESSAGE-----