As filed with the Securities and Exchange Commission on November 30, 2015
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CST Brands, Inc.
(Exact name of registrant as specified in its charter)
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| Delaware | | 46-1365950 |
(State or other jurisdiction of incorporation or organization) | | (I.R.S. Employer Identification No.) |
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One Valero Way Building D, Suite 200 San Antonio, Texas | | 78249 |
| (Address of principal executive offices) | | (Zip Code) |
CST BRANDS, INC. EMPLOYEE STOCK PURCHASE PLAN
(Full title of the plan)
Gérard J. Sonnier
Senior Vice President, General Counsel and
Corporate Secretary
CST Brands, Inc.
One Valero Way
Building D, Suite 200
San Antonio, Texas 78249
(Name and Address of Agent for Service)
(210) 692-5000
(Telephone Number, Including Area Code, of Agent for Service)
Copies to:
Gislar R. Donnenberg
Paul Hastings LLP
600 Travis Street, Suite 5800
Houston, TX 77002
Telephone: (713) 860-7300
Telecopy: (713) 353-3100
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
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| Large accelerated filer | | x | | Accelerated filer | | ¨ |
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| Non-accelerated filer | | ¨ (Do not check if a smaller reporting company) | | Smaller reporting company | | ¨ |
CALCULATION OF REGISTRATION FEE
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Title of Securities to be Registered | | Amount to be Registered(1) | | Proposed Maximum Offering Price per Share(2) | | Proposed Maximum Aggregate Offering Price(2) | | Amount of Registration Fee(2) |
| Common Stock, $0.01 per share | | 6,000,000 | | $35.95 | | $215,700,000 | | $21,721 |
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| (1) | Pursuant to Rule 416(a) of the Securities Act of 1933, as amended (the “Securities Act”), this Registration Statement shall also cover any additional shares of the common stock of CST Brands, Inc. (the “Company” or “Registrant”) that become issuable under the above-referenced employee benefit plan by reason of any stock dividend, stock split, recapitalization or similar transaction. This amount also covers 3,000,000 shares of common stock reserved for issuance pursuant to three automatic annual increases of 1,000,000 shares each year under the CST Brands, Inc. Employee Stock Purchase Plan. |
| (2) | Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) and Rule 457(h)(1) under the Securities Act. The proposed maximum offering price per share is estimated to be $35.95, based on the average of the high sales price ($36.20) and low sales price ($35.69) of the common stock of the Company as reported on the New York Stock Exchange on November 24, 2015. |
EXPLANATORY NOTE
On September 10, 2015, the Board of Directors of CST Brands, Inc. (the “Registrant”) approved the terms of CST Brands, Inc. Employee Stock Purchase Plan (the “Plan”) to be effective on January 1, 2016, subject to approval by the holders of a majority of the outstanding shares of common stock present and entitled to vote at the 2016 stockholders’ annual meeting. The Registrant intends to submit a resolution seeking approval of the Plan to its stockholders at the Registrant’s 2016 stockholders’ annual meeting and to include such resolution in the Registrant’s definitive proxy statement for such meeting. This Registration Statement on Form S-8 (the “Registration Statement”) is being filed because, as permitted under the Plan, the Registrant intends to permit employees to participate in the Plan effective on January 1, 2016; provided that any participation rights (which are options to purchase the Registrant’s stock in accordance with the Plan) granted under the Plan shall be contingent on receipt of stockholder approval and if stockholder approval is not obtained, any and all employee contributions shall be promptly refunded and no shares of common stock may be issued under the Plan. The Registration Statement is being filed for the purpose of registering 6,000,000 shares of the Registrant’s common stock, par value $0.01 per share (the “Common Stock”), to be issued pursuant to the Plan. The initial maximum aggregate number of shares of the Common Stock available for grant and issuance under the Plan is 3,000,000, subject to an automatic annual increase in the amount of 1,000,000 where the remaining shares available are insufficient to settle the amount of employee contributions in any offering period, in any calendar year.
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
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| * | The document(s) containing the information required by Part I of Form S-8 will be sent or given to participants as specified by Rule 428(b)(1) of the Securities Act of 1933, as amended (the “Securities Act”). Such documents need not be filed with the Securities and Exchange Commission (the “Commission”), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 of the Securities Act. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act. |
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
Registrant hereby incorporates by reference into this Registration Statement the following documents previously filed by the Registrant with the Commission:
(a) the Registrant’s Annual Report on Form 10-K for the fiscal year ended December 31, 2014, filed with the Commission on February 27, 2015, as amended by Amendment No. 1 on June 8, 2015 which contains the Registrant’s audited financial statements for the latest fiscal year for which such statements have been filed;
(b) the Registrant’s Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2015, for the quarterly period ended June 30, 2015, and for the quarterly period ended September 30, 2015, filed with the Commission on May 8, 2015, August 7, 2015 and November 6, 2015 which contain unaudited interim financial statements;
(c) the Registrant’s Current Report on Form 8-K, filed with the Commission on March 9, 2015; June 9, 2015; June 15, 2015; July 1, 2015; September 16, 2015, September 21, 2015, and November 25, 2015 (excluding any reports or portions thereof that are furnished under Item 2.02 or Item 7.01 and any exhibits included with such Items); and
(d) the description of the Common Stock contained in the Registrant’s Information Statement, dated April 19, 2013, filed as Exhibit 99.1 to the Registrant’s Registration Statement on Form 10 initially filed with the Commission on November 16, 2012, as amended by Amendment No. 1 on January 9, 2013, as amended by Amendment No. 2 on February 8, 2013, as amended by Amendment No. 3 on March 1, 2013 and as amended by Amendment No. 4 on April 4, 2013, and including any amendment or report filed for the purpose of updating such description.
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the “1934 Act”), subsequent to the date of this Registration Statement shall be deemed to be incorporated herein by reference and to be a part hereof from the date of the filing of such documents until such time as there shall have been filed a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities remaining unsold at the time of such amendment.
Notwithstanding the foregoing, information that the Registrant elects to furnish, but not file, or have furnished, but not filed, with the Commission in accordance with Commission rules and regulations is not incorporated into this Registration Statement and does not constitute a part hereof.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained in this Registration Statement, or in any other subsequently filed document which is also incorporated or deemed to be incorporated by reference into this Registration Statement, modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Delaware General Corporation Law (the “DGCL”) authorizes corporations to limit or eliminate the personal liability of directors to corporations and their stockholders for monetary damages for breaches of directors’ fiduciary duties as directors, and Registrant’s Amended and Restated Certificate of Incorporation includes such an exculpation provision.
The Registrant’s Amended and Restated Certificate of Incorporation provides that no director will be liable to the Registrant or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation on liability is not permitted under the DGCL, as now in effect or as amended. Currently, Section 102(b)(7) of the DGCL requires that liability be imposed for the following: any breach of the director’s duty of loyalty to the corporation or its stockholders; any act or omission not in good faith or which involves intentional misconduct or a knowing violation of law; unlawful payments of dividends or unlawful stock repurchases or redemptions as provided in Section 174 of the DGCL; and any transaction from which the director derived an improper personal benefit.
Additionally, Section 145 of the DGCL provides that a corporation may indemnify directors and officers as well as other employees and individuals against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, in which such person is made a party by reason of the fact that the person is or was a director, officer, employee or agent of the corporation (other than an action by or in the right of the corporation—a “derivative action”), if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. A similar standard is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such action, and the statute requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation. The statute provides that it is not exclusive of other indemnification that may be granted by a corporation’s bylaws, disinterested director vote, stockholder vote, agreement or otherwise.
The Registrant’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws provide that, to the fullest extent authorized or permitted by the DGCL, as now in effect or as amended, Registrant will indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that such person, or a person of whom he or she is the legal representative, is or was the Registrant’s director or officer, or by reason of the fact that the Registrant’s director or officer is or was serving, at the Registrant’s request, 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 maintained or sponsored by us. The Registrant will indemnify such persons against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with such action if such person acted in good faith and in a manner reasonably believed to be in the Registrant’s best interests and, with respect to any criminal proceeding, had no reason to believe their conduct was unlawful. A similar standard will be applicable in the case of derivative actions, except that indemnification will only extend to expenses (including attorneys’ fees) incurred in connection with the defense or settlement of such actions, and court approval will be required before there can be any indemnification where the person seeking indemnification has been found liable to us. Any amendment of this provision will not reduce the Registrant’s indemnification obligations relating to actions taken before an amendment.
The Registrant has obtained insurance policies that insure the Registrant’s directors and officers and those of its subsidiaries against certain liabilities they may incur in their capacity as directors and officers. The insurance provides coverage, subject to its terms and conditions, if the Registrant is unable to (e.g., due to bankruptcy) or unwilling to indemnify the directors and officers for a covered wrongful act.
The Registrant has approved a form of Indemnification Agreement to be entered into with each of its directors that is intended to assure the directors that they will be indemnified to the fullest extent permitted by Delaware law.
The above discussion of the DGCL and the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws of the Registrant is not intended to be exhaustive and is qualified in its entirety by such statute, the Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
See the exhibit index following the signature page in this Registration Statement, which exhibit index is incorporated herein by reference.
Item 9. Undertakings.
(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;
(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. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(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) above do not apply if the registration statement is on Form S-8 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the 1934 Act that are incorporated by reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act, 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, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in this 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.
(c) Insofar as indemnification for liabilities arising under the Securities Act 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 Commission such indemnification is against public policy as expressed in the Securities 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 of whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing this Registration Statement 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, State of Texas, on November 30, 2015.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities and on the date indicated. Each person whose signature appears below hereby constitutes and appoints Kimberly S. Lubel and Clayton E. Killinger, and each of them, his or her true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution for him or her in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with exhibits thereto and other documents in connection therewith with the Securities and Exchange Commission, granting unto such attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary in connection with such matters and hereby ratifying and confirming all that such attorney-in-fact and agent or his substitutes may do or cause to be done by virtue hereof.
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| Signature | | Name and Title | | Date |
| /s/ Kimberly S. Lubel | | Chief Executive Officer, President and Chairman of the Board (Principal Executive Officer) | | November 30, 2015 |
| Kimberly S. Lubel | | | | |
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| /s/ Clayton E. Killinger | | Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer) | | November 30, 2015 |
| Clayton E. Killinger |
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| /s/ Alan Schoenbaum | | Lead Director | | November 30, 2015 |
| Alan Schoenbaum | | | | |
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| /s/ Donna M. Boles | | Director | | November 30, 2015 |
| Donna M. Boles | | | | |
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| /s/ Roger G. Burton | | Director | | November 30, 2015 |
| Roger G. Burton | | | | |
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| /s/ Denise Incandela | | Director | | November 30, 2015 |
| Denise Incandela | | | | |
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| /s/ Joseph V. Topper, Jr | | Director | | November 30, 2015 |
| Joseph V. Topper, Jr | | | | |
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| /s/ Ruben M. Escobedo | | Director | | November 30, 2015 |
| Ruben M. Escobedo | | | | |
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| /s/ William G. Moll | | Director | | November 30, 2015 |
| William G. Moll | | | | |
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| /s/ Michael H. Wargotz | | Director | | November 30, 2015 |
| Michael H. Wargotz | | | | |
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| /s/ Stephen A. Smith | | Director | | November 30, 2015 |
| Stephen A. Smith | | | | |
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| /s/ Joseph E. Reece | | Director | | November 30, 2015 |
| Joseph E. Reece | | | | |
INDEX TO EXHIBITS
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| Exhibit | | Description of Exhibit |
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| 4.1* | | Amended and Restated Certificate of Incorporation (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 1, 2013). |
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| 4.2* | | Amended and Restated Bylaws of the Company (incorporated by reference to Exhibit 10.2 to the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission on May 1, 2013). |
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| 4.3** | | CST Brands, Inc. Employee Stock Purchase Plan. |
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| 5.1** | | Opinion of Paul Hastings LLP. |
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| 23.1** | | Consent of Paul Hastings LLP (included in Exhibit 5.1). |
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| 23.2** | | Consent of KPMG LLP. |
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| 24.1** | | Power of Attorney (set forth in the signature page contained in Part II of this Registration Statement). |
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| * | Incorporated by reference. |
| ** | Filed herewith. |
