The validity of the issuance of the Common Stock offered hereby will be passed upon for Valero by Richard J. Walsh, its Senior Vice President,
General Counsel and Secretary. As of July 14, 2021, Mr. Walsh beneficially owned approximately 63,193 shares of Valeros Common Stock (excluding 15,884.6428 shares indirectly held through the Plan).
Item 6.
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Indemnification of Directors and Officers.
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Valeros Amended and Restated Certificate of Incorporation, as amended (the Restated Certificate of Incorporation), contains a
provision that eliminates the personal liability of a director to Valero and its stockholders for monetary damages for breach of fiduciary duty as a director to the extent currently allowed under the Delaware General Corporation Law. If a director
were to breach such duty in performing duties as a director, neither Valero nor its stockholders could recover monetary damages from the director, and the only course of action available to Valeros 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 Valeros 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 duties. Additionally, equitable remedies may not be effective in many situations.
If a stockholders only remedy is to enjoin the completion of the Board of Directors action, this remedy would be ineffective if the stockholder does not become aware of a transaction or event until after it has been completed. In such a
situation, it is possible that the stockholders and Valero would have no effective remedy against the directors. Under Valeros Restated Certificate of Incorporation, liability for monetary damages remains for (i) any breach of the duty of
loyalty to Valero or its stockholders, (ii) acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) payment of an improper dividend or improper repurchase or redemption of
Valeros stock under Section 174 of the Delaware General Corporation Law, or (iv) any transaction from which the director derived an improper personal benefit.
Under Article V of the Restated Certificate of Incorporation and Article VIII of Valeros Amended and Restated By-laws as currently in effect (the Restated By-laws) and an indemnification agreement with Valeros officers and directors (the Indemnification
Agreement), each person who is or was a director or officer of Valero or a subsidiary of Valero, or who serves or served any other enterprise or organization at the request of Valero or a subsidiary of Valero (each, an Indemnitee),
shall be indemnified by Valero to the full extent permitted by the Delaware General Corporation Law.
Under such law, to the extent that
an Indemnitee is successful on the merits in defense of a suit or proceeding brought against the Indemnitee by reason of the fact that he or she is or was a director or officer of Valero, or serves or served any other enterprise or organization at
the request of Valero, the Indemnitee shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred in connection with such action.
Under such law, if unsuccessful in defense of a third-party civil suit or a criminal suit, or if such suit is settled, the Indemnitee shall be
indemnified against both (a) expenses, including attorneys fees, and (b) judgments, fines and amounts paid in settlement if he or she acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best
interests of Valero, and, with respect to any criminal action, had no reasonable cause to believe his conduct was unlawful.
If
unsuccessful in defense of a suit brought by or in the right of Valero, or if such a suit is settled, the Indemnitee shall be indemnified under such law only against expenses (including attorneys fees) actually and reasonably incurred in the
defense or settlement of such suit if he or she acted in good faith and in a manner reasonably believed to be in, or not opposed to, the best interests of Valero, except that if the Indemnitee is adjudged to be liable in such a suit for negligence
or misconduct in the performance of duties to Valero, the Indemnitee cannot be made whole for expenses unless the court determines that he or she is fairly and reasonably entitled to indemnity for such expenses.