Common use of Form and Amount Clause in Contracts

Form and Amount. Upon Executive's involuntary termination, other than for Cause, the Company shall: (a) subject to Section 5.5(iii), pay or provide Executive (1) his annual salary and benefits until the date of termination, (2) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three multiplied by the sum of (x) and (y), where (x) is Executive's highest annual base salary in effect during the three years prior to his date of termination, and (y) is the highest annual incentive compensation earned by Executive during the three years prior to his termination; provided, however, that all amounts received by Executive pursuant to the Ultramar Diamond Shamrock Corporation Intermediate Incentive and Performance-Based Restricted Stock Plan shall not be considered "annual incentive compensation" for purposes of this Section 5.5(i)(a)(2), (3) three additional years of age and service credit under all Company-sponsored employee benefit plans, including all retirement income plans and welfare benefit plans, policies or programs or arrangements in which Executive participates, including any savings, pension, supplemental executive retirement or other retirement income or welfare benefit, short and long-term disability, and any other deferred compensation, group and/or executive life, health, retiree health, medical/hospital, or other insurance (whether funded by actual insurance or self-insured by the Company), expense reimbursement or other employee benefit plans, policies, programs or arrangements or any equivalent successor plans, policies, programs or arrangements that may not now exist or may be adopted hereafter by the Company (but only to the extent that eligibility, vesting, or the timing or amount of the benefit are dependent upon age and service); provided, however, that in the case of a qualified defined benefit pension plan (hereafter, the "Qualified Plan"), (i) if such aforementioned involuntary termination occurs prior to, or contemporaneous with, the occurrence of an event entitling Executive to a lump sum payment under the provisions of either the Ultramar Corporation Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "Ultramar SERP") or the Diamond Shamrock, Inc. Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "DS SERP") pertaining to "Change in Control" (as defined in either the Ultramar SERP or the DS SERP, as the case may be), disregarding for this purpose, any "Change in Control" occurring prior to December 4, 1996 (collectively, a "SERP Lump Sum Payment"), in lieu of granting any such actual additional years of age and service credit under the Qualified Plan, an amount equal to the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired and (ii) if such aforementioned involuntary termination occurs following the occurrence of an event entitling Executive to a SERP Lump Sum Payment, in lieu of granting any such additional years of age and service credit under the Qualified Plan, an amount equal to the excess of (A) the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company over (B) the amount by which the SERP Lump Sum Payment would, under the terms of the Ultramar SERP or DS SERP (as the case may be), have been reduced had the aforementioned involuntary termination instead occurred contemporaneous with the occurrence of the event entitling Executive to the SERP Lump Sum Payment, will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired, with (i) in the event that Executive's aforementioned involuntary termination occurs on or after a "Change in Control" of the Company, as defined in Section 6.2 (or prior to, but in anticipation of, such a "Change in Control"), such present value being determined, in both cases, using the interest rate and mortality table set forth in Section 4.1(m)(i) and 4.1(n)(i), respectively, of the Ultramar SERP and (ii) in the event that Employee's aforementioned involuntary termination occurs prior to such a "Change in Control" of the Company (other than such a termination in anticipation of such a "Change in Control"), such present value being determined, in each such case, using in the interest rate and mortality table set forth in Section 4.1(m)(ii) and 4.1(n)(ii), respectively, of the Ultramar SERP; further, provided, however, that, in determining the amount of the benefit which Executive is entitled to receive, determined with respect to the DS SERP, the three additional years of age and service credit which the Company would otherwise pay, or provide, Executive under the DS SERP shall not, pursuant to this clause (3), be taken into account under the DS SERP, to the extent that Executive was otherwise previously so credited with three additional years of age and service credit under the terms of the DS SERP pertaining to "Change in Control;" and further, provided, in crediting the three additional years of age and service for purposes of calculating current and unused vacation such additional years shall be applied in determining the amount of annual vacation to which Executive is entitled, but shall not be deemed to cause Executive to have earned three additional years worth of unused vacation, (4) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three times the maximum amount the Company could have contributed on behalf of Executive to all of the Company-sponsored qualified and nonqualified defined contribution retirement plans in which Executive participated for any of the three years ending on the date of Executive's termination of employment, assuming that Executive made the maximum voluntary contributions thereto, (5) for a period of three years after the date of Executive's termination of employment, the continuation of the employee welfare benefits set forth in Section 4.2 (other than short-term or long-term disability benefits), except as offset by benefits paid by other sources as set forth in Section 8.2, or as provided in Section 5.5(ii) (provided, however, that in the event that any such continued coverage is not permitted under the terms of any applicable welfare plan or policy, the Company shall provide Executive with the after-tax economic equivalent of any coverage foregone, such economic equivalent to be deemed to be no less than the total cost to Executive of obtaining such coverage on an individual basis and to be paid quarterly in advance without discount);

Form and Amount. Upon Executive's involuntary termination, other than for Cause, the Company shall: (a) subject to Section 5.5(iii), pay or provide Executive (1) his annual salary and benefits until the date of termination, (2) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three multiplied by the sum of (x) and (y), where (x) is Executive's highest annual base salary in effect during the three years prior to his date of termination, and (y) is the highest annual incentive compensation earned by Executive during the three years prior to his termination; provided, however, that all amounts received by Executive pursuant to the Ultramar Diamond Shamrock Corporation Intermediate Incentive and Performance-Based Restricted Stock Plan shall not be considered "annual incentive compensation" for purposes of this Section 5.5(i)(a)(25.5(i)(2), (3) three additional years of age and service credit under all Company-sponsored employee benefit plans, including all retirement income plans and welfare benefit plans, policies or programs or arrangements in which Executive participates, including any savings, pension, supplemental executive retirement or other retirement income or welfare benefit, short and or long-term disability, and any other deferred compensation, group and/or executive life, health, retiree health, medical/hospital, or other insurance (whether funded by actual insurance or self-insured by the Company), expense reimbursement or other employee benefit plans, policies, programs or arrangements or any equivalent successor plans, policies, programs or arrangements that may not now exist or may be adopted hereafter by the Company (but only to the extent that eligibility, vesting, or the timing or amount of the benefit are dependent upon age and service); provided, however, that in the case of a qualified defined benefit pension plan (hereafter, the "Qualified Plan"), (i) if such aforementioned involuntary termination occurs prior to, or contemporaneous with, the occurrence of an event entitling Executive to a lump sum payment under the provisions of either the Ultramar Corporation Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "Ultramar SERP") or the Diamond Shamrock, Inc. Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "DS SERP") pertaining to "Change in Control" (as defined in either the Ultramar SERP or the DS SERP, as the case may be), disregarding for this purpose, any "Change in Control" occurring prior to December 4, 1996 (collectively, a "SERP Lump Sum Payment"), in lieu of granting any such actual additional years of age and service credit under the Qualified Plan, an amount equal to the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired and (ii) if such aforementioned involuntary termination occurs following the occurrence of an event entitling Executive to a SERP Lump Sum Payment, in lieu of granting any such additional years of age and service credit under the Qualified Plan, an amount equal to the excess of (A) the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company over (B) the amount by which the SERP Lump Sum Payment would, under the terms of the Ultramar SERP or DS SERP (as the case may be), have been reduced had the aforementioned involuntary termination instead occurred contemporaneous with the occurrence of the event entitling Executive to the SERP Lump Sum Payment, will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired, with (i) in the event that Executive's aforementioned involuntary termination occurs on or after a "Change in Control" of the Company, as defined in Section 6.2 (or prior to, but in anticipation of, such a "Change in Control"), such present value being determined, in both caseseach such case, using the interest rate and mortality table set forth in Section 4.1(m)(i) and 4.1(n)(i), respectively, of the Ultramar SERP and (ii) in the event that EmployeeExecutive's aforementioned involuntary termination occurs prior to such a "Change in Control" of the Company (other than such a termination in anticipation of such a "Change in Control"), such present value being determined, in each such case, using in the interest rate and mortality table set forth in Section 4.1(m)(ii) and 4.1(n)(ii), respectively, of the Ultramar SERP; further, provided, however, that, in determining the amount of the benefit which Executive is entitled to receive, determined with respect to the DS SERP, the three additional years of age and service credit which the Company would otherwise pay, or provide, Executive under the DS SERP shall not, pursuant to this clause (3), be taken into account under the DS SERP, to the extent that Executive was otherwise previously so credited with three additional years of age and service credit under the terms of the DS SERP pertaining to "Change in Control;" and further, provided, in crediting the three additional years of age and service for purposes of calculating current and unused vacation such additional years shall be applied in determining the amount of annual vacation to which Executive is entitled, but shall not be deemed to cause Executive to have earned three additional years worth of unused vacation, (4) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three times the maximum amount the Company could have contributed on behalf of Executive to all of the Company-sponsored qualified and nonqualified defined contribution retirement plans in which Executive participated for any of the three years ending on the date of the Executive's termination of employment, assuming that the Executive made the maximum voluntary contributions thereto, (5) for a period of three years after the date of Executive's termination of employment, the continuation of the employee welfare benefits set forth in Section 4.2 (other than short-term or long-term disability benefits), except as offset by benefits paid by other sources as set forth in Section 8.2, or as provided in Section 5.5(ii) (provided, however, that in the event that any such continued coverage is not permitted under the terms of any applicable welfare plan or policy, the Company shall provide Executive with the after-tax economic equivalent of any coverage foregone, such economic equivalent to be deemed to be no less than the total cost to Executive of obtaining such coverage on an individual basis and to be paid quarterly in advance without discount);

Form and Amount. Upon Executive's ’s involuntary termination, other than for Cause, the Company shall: (a) subject to Section 5.5(iii), pay or provide Executive (1) his annual salary and benefits until the date of termination, (2) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three multiplied by the sum of (x) and (y), where (x) is Executive's ’s highest annual base salary in effect during the three years prior to his date of termination, and (y) is the highest annual incentive compensation earned by Executive during the three years prior to his termination; provided, however, that all amounts received by Executive pursuant to the Ultramar Diamond Shamrock Corporation Intermediate Incentive and Performance-Based Restricted Stock Plan shall not be considered "“annual incentive compensation" ” for purposes of this Section 5.5(i)(a)(2),, Xxxxxx First Amendment to Employment Agreement Page 3 of 7 (3) three additional years of age and service credit under all Company-sponsored employee benefit plans, including all retirement income plans and welfare benefit plans, policies or programs or arrangements in which Executive participates, including any savings, pension, supplemental executive retirement or other retirement income or welfare benefit, short and or long-term disability, and any other deferred compensation, group and/or executive life, health, retiree health, medical/hospital, or other insurance (whether funded by actual insurance or self-insured by the Company), expense reimbursement or other employee benefit plans, policies, programs or arrangements or any equivalent successor plans, policies, programs or arrangements that may not now exist or may be adopted hereafter by the Company (but only to the extent that eligibility, vesting, or the timing or amount of the benefit are dependent upon age and service); provided, however, that in the case of a qualified defined benefit pension plan (hereafter, the "“Qualified Plan"”), (i) if such aforementioned involuntary termination occurs prior to, or contemporaneous with, the occurrence of an event entitling Executive to a lump sum payment under the provisions of either the Ultramar Corporation Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "“Ultramar SERP"”) or the Diamond Shamrock, Inc. Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "“DS SERP"”) pertaining to "“Change in Control" ” (as defined in either the Ultramar SERP or the DS SERP, as the case may be), disregarding for this purpose, any "“Change in Control" ” occurring prior to December 4, 1996 (collectively, a "“SERP Lump Sum Payment"”), in lieu of granting any such actual additional years of age and service credit under the Qualified Plan, an amount equal to the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired and (ii) if such aforementioned involuntary termination occurs following the occurrence of an event entitling Executive to a SERP Lump Sum Payment, in lieu of granting any such additional years of age and service credit under the Qualified Plan, an amount equal to the excess of (A) the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company over (B) the amount by which the SERP Lump Sum Payment would, under the terms of the Ultramar SERP or DS SERP (as the case may be), have been reduced had the aforementioned involuntary termination instead occurred contemporaneous with the occurrence of the event entitling Executive to the SERP Lump Sum Payment, will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired, with (i) in the event that Executive's ’s aforementioned involuntary termination occurs on or after a "“Change in Control" ” of the Company, as defined in Section 6.2 (or prior to, but in anticipation of, such a "“Change in Control"”), such present value being determined, in both caseseach such case, using the interest rate and mortality table set forth in Section 4.1(m)(i) and 4.1(n)(i), respectively, of the Ultramar SERP and (ii) in the event that Employee's Executive’s aforementioned involuntary termination occurs prior to such a "“Change in Control" ” of the Company (other than such a termination in anticipation of such a "“Change in Control"”), such present value being determined, in each such case, using in the interest rate and mortality table set forth in Section 4.1(m)(ii) and 4.1(n)(ii), respectively, of the Ultramar SERP; further, provided, however, that, in determining the amount of the benefit which Executive is entitled to receive, determined with respect to the DS SERP, the three additional years of age and service credit which the Company would otherwise pay, or provide, Executive under the DS SERP shall not, pursuant to this clause (3), be taken into account under the DS SERP, to the extent that Executive was otherwise previously so credited with three additional years of age and service credit under the terms of the DS SERP pertaining to "Change in Control;" and further, provided, in crediting the three additional years of age and service for purposes of calculating current and unused vacation such additional years shall be applied in determining the amount of annual vacation to which Executive is entitled, but shall not be deemed to cause Executive to have earned three additional years worth of unused vacation, (4) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three times the maximum amount the Company could have contributed on behalf of Executive to all of the Company-sponsored qualified and nonqualified defined contribution retirement plans in which Executive participated for any of the three years ending on the date of Executive's ’s termination of employment, assuming that Executive made the maximum voluntary contributions thereto, (5) for a period of three years after the date of Executive's ’s termination of employment, the continuation of the employee welfare benefits set forth in Section 4.2 (other than short-term or long-term disability benefits), except as offset by benefits paid by other sources as set forth in Section 8.2, or as provided in Section 5.5(ii) (provided, however, that in the event that any such continued coverage is not permitted under the terms of any applicable welfare plan or policy, the Company shall provide Executive with the after-tax economic equivalent of any coverage foregone, such economic equivalent to be deemed to be no less than the total cost to Executive of obtaining such coverage on an individual basis and to be paid quarterly in advance without discount);

Form and Amount. Upon Executive's involuntary termination, other than for Cause, the Company shall: (a) subject to Section 5.5(iii), pay or provide Executive (1) his annual salary and benefits until the date of termination, (2) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three multiplied by the sum of (x) and (y), where (x) is Executive's highest annual base salary in effect during the three years prior to his date of termination, and (y) is the highest annual incentive compensation earned by Executive during the three years prior to his termination; provided, however, that all amounts received by Executive pursuant to the Ultramar Diamond Shamrock Corporation Intermediate Incentive and Performance-Based Restricted Stock Plan shall not be considered "annual incentive compensation" for purposes of this Section 5.5(i)(a)(2), (3) three additional years of age and service credit under all Company-sponsored employee benefit plans, including all retirement income plans and welfare benefit plans, policies or programs or arrangements in which Executive participates, including any savings, pension, supplemental executive retirement or other retirement income or welfare benefit, short and or long-term disability, and any other deferred compensation, group and/or executive life, health, retiree health, medical/hospital, or other insurance (whether funded by actual insurance or self-insured by the Company), expense reimbursement or other employee benefit plans, policies, programs or arrangements or any equivalent successor plans, policies, programs or arrangements that may not now exist or may be adopted hereafter by the Company (but only to the extent that eligibility, vesting, or the timing or amount of the benefit are dependent upon age and service); provided, however, that in the case of a qualified defined benefit pension plan (hereafter, the "Qualified Plan"), (i) if such aforementioned involuntary termination occurs prior to, or contemporaneous with, the occurrence of an event entitling Executive to a lump sum payment under the provisions of either the Ultramar Corporation Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "Ultramar SERP") or the Diamond Shamrock, Inc. Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "DS SERP") pertaining to "Change in Control" (as defined in either the Ultramar SERP or the DS SERP, as the case may be), disregarding for this purpose, any "Change in Control" occurring prior to December 4, 1996 (collectively, a "SERP Lump Sum Payment"), in lieu of granting any such actual additional years of age and service credit under the Qualified Plan, an amount equal to the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan such plan as of his date of termination with the Company will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired and (ii) if such aforementioned involuntary termination occurs following the occurrence of an event entitling Executive to a SERP Lump Sum Payment, in lieu of granting any such additional years of age and service credit under the Qualified Plan, an amount equal to the excess of (A) the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company over (B) the amount by which the SERP Lump Sum Payment would, under the terms of the Ultramar SERP or DS SERP (as the case may be), have been reduced had the aforementioned involuntary termination instead occurred contemporaneous with the occurrence of the event entitling Executive to the SERP Lump Sum Payment, will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired, with (i) in the event that Executive's aforementioned involuntary termination occurs on or after a "Change in Control" of the Company, as defined in Section 6.2 (or prior to, but in anticipation of, such a "Change in Control"), ," such present value being determined, in both cases, determined using the interest rate and mortality table set forth in Section 4.1(m)(i) and 4.1(n)(i), respectively, of the Ultramar SERP Corporation Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "Ultramar SERP") and (ii) in the event that EmployeeExecutive's aforementioned involuntary termination occurs prior to such a "Change in Control" of the Company (other than such a termination in anticipation of such a "Change in Control"), such present value being determined, in each such case, determined using in the interest rate and mortality table set forth in Section 4.1(m)(ii) and 4.1(n)(ii), respectively, of the Ultramar SERP; further, provided, however, that, in determining the amount of the benefit which Executive is entitled to receive, determined with respect to the DS SERP, the three additional years of age and service credit which the Company would otherwise pay, or provide, Executive under the DS SERP shall not, pursuant to this clause (3), be taken into account under the DS SERP, to the extent that Executive was otherwise previously so credited with three additional years of age and service credit under the terms of the DS SERP pertaining to "Change in Control;" and further, provided, in crediting the three additional years of age and service for purposes of calculating current and unused vacation such additional years shall be applied in determining the amount of annual vacation to which Executive is entitled, but shall not be deemed to cause Executive to have earned three additional years worth of unused vacation, (4) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three times the maximum amount the Company could have contributed on behalf of Executive to all of the Company-sponsored qualified and nonqualified defined contribution retirement plans in which Executive participated for any of the three years ending on the date of Executive's termination of employment, assuming that Executive made the maximum voluntary contributions thereto, (5) for a period of three years after the date of Executive's termination of employment, the continuation of the employee welfare benefits set forth in Section 4.2 (other than short-term or long-term disability benefits), except as offset by benefits paid by other sources as set forth in Section 8.2, or as provided in Section 5.5(ii) (provided, however, that in the event that any such continued coverage is not permitted under the terms of any applicable welfare plan or policy, the Company shall provide Executive with the after-tax economic equivalent of any coverage foregone, such economic equivalent to be deemed to be no less than the total cost to Executive of obtaining such coverage on an individual basis and to be paid quarterly in advance without discount);

Form and Amount. Upon Executive's ’s involuntary termination, other than for Cause, the Company shall: (a) subject to Section 5.5(iii), pay or provide Executive (1) his annual salary and benefits until the date of termination, (2) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three multiplied by the sum of (x) and (y), where (x) is Executive's ’s highest annual base salary in effect during the three years prior to his date of termination, and (y) is the highest annual incentive compensation earned by Executive during the three years prior to his termination; provided, however, that all amounts received by Executive pursuant to the Ultramar Diamond Shamrock Corporation Intermediate Incentive and Performance-Based Restricted Stock Plan shall not be considered "“annual incentive compensation" ” for purposes of this Section 5.5(i)(a)(2),, Fretthold First Amendment to Employment Agreement Page 4 of 8 (3) three additional years of age and service credit under all Company-sponsored employee benefit plans, including all retirement income plans and welfare benefit plans, policies or programs or arrangements in which Executive participates, including any savings, pension, supplemental executive retirement or other retirement income or welfare benefit, short and or long-term disability, and any other deferred compensation, group and/or executive life, health, retiree health, medical/hospital, or other insurance (whether funded by actual insurance or self-insured by the Company), expense reimbursement or other employee benefit plans, policies, programs or arrangements or any equivalent successor plans, policies, programs or arrangements that may not now exist or may be adopted hereafter by the Company (but only to the extent that eligibility, vesting, or the timing or amount of the benefit are dependent upon age and service); provided, however, that in the case of a qualified defined benefit pension plan (hereafter, the "“Qualified Plan"”), (i) if such aforementioned involuntary termination occurs prior to, or contemporaneous with, the occurrence of an event entitling Executive to a lump sum payment under the provisions of either the Ultramar Corporation Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "“Ultramar SERP"”) or the Diamond Shamrock, Inc. Supplemental Executive Retirement Plan (or any equivalent successor plan, policy, program or arrangement) (collectively, the "“DS SERP"”) pertaining to "“Change in Control" ” (as defined in either the Ultramar SERP or the DS SERP, as the case may be), disregarding for this purpose, any "“Change in Control" ” occurring prior to December 4, 1996 (collectively, a "“SERP Lump Sum Payment"”), in lieu of granting any such actual additional years of age and service credit under the Qualified Plan, an amount equal to the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired and (ii) if such aforementioned involuntary termination occurs following the occurrence of an event entitling Executive to a SERP Lump Sum Payment, in lieu of granting any such additional years of age and service credit under the Qualified Plan, an amount equal to the excess of (A) the present value of the additional benefit Executive would have accrued if he had been credited for all purposes with the three additional years of age and service under the Qualified Plan as of his date of termination with the Company over (B) the amount by which the SERP Lump Sum Payment would, under the terms of the Ultramar SERP or DS SERP (as the case may be), have been reduced had the aforementioned involuntary termination instead occurred contemporaneous with the occurrence of the event entitling Executive to the SERP Lump Sum Payment, will be paid in a lump sum in cash within five business days after any revocation period in the release described in Section 5.5(iii) has expired, with (i) in the event that Executive's ’s aforementioned involuntary termination occurs on or after a "“Change in Control" ” of the Company, as defined in Section 6.2 (or prior to, but in anticipation of, such a "“Change in Control"”), such present value being determined, in both cases, using the interest rate and mortality table set forth in Section 4.1(m)(i4.1(m) (i) and 4.1(n)(i), respectively, of the Ultramar SERP and (ii) in the event that Employee's ’s aforementioned involuntary termination occurs prior to such a "“Change in Control" ” of the Company (other than such a termination in anticipation of such a "“Change in Control"”), such present value being determined, in each such case, using in the interest rate and mortality table set forth in Section 4.1(m)(ii) and 4.1(n)(ii), respectively, of the Ultramar SERP; further, provided, however, that, in determining the amount of the benefit which Executive is entitled to receive, determined with respect to the DS SERP, the three additional years of age and service credit which the Company would otherwise pay, or provide, Executive under the DS SERP shall not, pursuant to this clause (3), be taken into account under the DS SERP, to the extent that Executive was otherwise previously so credited with three additional years of age and service credit under the terms of the DS SERP pertaining to "“Change in Control;" ” and further, provided, in crediting the three additional years of age and service for purposes of calculating current and unused vacation such additional years shall be applied in determining the amount of annual vacation to which Executive is entitled, but shall not be deemed to cause Executive to have earned three additional years worth of unused vacation,, Fretthold First Amendment to Employment Agreement Page 5 of 8 (4) within five business days after any revocation period in the release described in Section 5.5(iii) has expired, a lump sum cash payment equal to three times the maximum amount the Company could have contributed on behalf of Executive to all of the Company-sponsored qualified and nonqualified defined contribution retirement plans in which Executive participated for any of the three years ending on the date of Executive's ’s termination of employment, assuming that Executive made the maximum voluntary contributions thereto, (5) for a period of three years after the date of Executive's ’s termination of employment, the continuation of the employee welfare benefits set forth in Section 4.2 (other than short-term or long-term disability benefits), except as offset by benefits paid by other sources as set forth in Section 8.2, or as provided in Section 5.5(ii) (provided, however, that in the event that any such continued coverage is not permitted under the terms of any applicable welfare plan or policy, the Company shall provide Executive with the after-tax economic equivalent of any coverage foregone, such economic equivalent to be deemed to be no less than the total cost to Executive of obtaining such coverage on an individual basis and to be paid quarterly in advance without discount);