EXHIBIT 10.58
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
H. Xxxx Xxxxx (the "Executive") and Ultramar Diamond Shamrock Corporation, a
Delaware corporation (the "Company") hereby enter into this First Amendment to
the Employment Agreement between the Executive and the Company, dated as of
November 25, 1996 and effective as of December 3, 1996 (the "Employment
Agreement").
WHEREAS, the Executive serves as Chief Financial Officer of the Company; and
WHEREAS, the Executive and the Company entered into the Employment Agreement as
of the date stated above; and
WHEREAS, Section 12.8 of the Employment Agreement provides that it may be
amended only by an instrument in writing approved by the Company and signed by
the Executive and the Company; and
WHEREAS, to encourage the Executive to relocate from Connecticut to Texas, the
Executive and the Company desire to amend the Employment Agreement as described
below, and the Company has obtained all necessary approvals of such amendment.
NOW, THEREFORE, in consideration of the promises and mutual covenants contained
herein and in the Employment Agreement, it is agreed that, effective as of
December 3, 1996 (being the "Effective Date," as defined in the Employment
Agreement), a new paragraph is added to the end of Section 5.5 (I) of the
Employment Agreement, to read as follows:
"In addition, if the Executive is involuntarily terminated by the Company
without Cause (including for this purpose the termination by the Executive
of his employment with Good Reason other than pursuant to clause (g) or (h)
of Section 5.4 (I)), or there occurs a change in control entitling the
Executive to an immediate payout of his entire benefit under the Ultramar
Corporation Supplemental Executive Retirement Plan (the "Ultramar SERP"),
the Company will pay to the Executive, within thirty days after such event,
the excess, if any, of:
(a) the lump sum payment to which the Executive would be entitled upon the
occurrence of such event under the Diamond Shamrock R&M Supplemental
Executive Retirement Plan (as in effect on the Effective Date, but taking
into account any subsequent amendments thereto which do not decrease the
amount of benefits or the right to receive benefits) (the "Diamond Shamrock
SERP") if the Executive had participated therein immediately prior to and
at all times following the Effective Date, but after substituting "fifty
percent (50%)" for "sixty percent (60%)" in Section 6 (a) (I) of the
Diamond Shamrock SERP; over
(b) the lump sum payment actually made to the Executive under the Ultramar
SERP;
provided that if, at the time a lump sum payment becomes due to the
Executive under the Ultramar SERP under the circumstances described in this
paragraph, a lump sum payment would not otherwise be due the Executive
under the Diamond Shamrock SERP if he participated therein. In that event
an actuarial firm which generally performs services for the Company shall
translate the accrued Diamond Shamrock SERP benefit at such time (as if the
Executive participated therein) into an actuarially equivalent lump sum
benefit, using actuarial assumptions then applicable to the Executive's
benefit under the Ultramar SERP."
IN WITNESS WHEREOF, the parties have executed this First Amendment on the date
indicated below, but effective as of the date described above.
AGREED:
/s/ H. XXXX XXXXX
H. Xxxx Xxxxx
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By: /S/ XXXXX X. XXXXXXXXXXX
Xxxxx X. Xxxxxxxxxxx
Chief Executive Officer
16
