Exhibit "A"
GENERAL RELEASE OF ALL CLAIMS
This General Release of all Claims (this "Agreement") is entered into by and
between _________________ ("Executive") and Ultramar Diamond Shamrock
Corporation (including its subsidiaries) (collectively the "Company") effective
as of ______________.
In consideration of the promises set forth in the employment agreement between
Executive and the Company, dated _________________, as amended as of the
effective date hereof (the "Employment Agreement), as well as any promises set
forth in this Agreement, Executive and the Company agree as follows:
(1) Employment Agreement Entitlements
The Company will provide Executive the post-termination payments and
benefits to which he is entitled under the Employment Agreement.
(2) Return of Property
All Company files, access keys, desk keys, ID badges and credit cards,
and such other property of the Company as the Company may reasonably
request, in Executive's possession must be returned no later than the
date of Executive's termination from the Company (the "Termination
Date").
(3) General Release and Waiver of Claims
Except as provided in the last sentence of this paragraph (3),
Executive hereby unconditionally and forever releases, discharges and
waives any and all claims of any nature whatsoever, whether legal,
equitable or otherwise, which Executive may have against the Company
arising at any time on or before the Termination Date, other than with
respect to the obligations of the Company to the Executive under the
Employment Agreement and all Company-sponsored employee benefit or
compensation arrangement, including all qualified and nonqualified
retirement, stock option or other equity-based compensation, deferred
compensation, bonus, incentive, or welfare benefit or other employee
benefit plan, policy, program or arrangement, in which the Executive
participated or was eligible to participate prior to the Termination
Date (collectively referred to as the "Benefit Plans"). This release of
claims extends to any and all claims of any nature whatsoever, other
than with respect to the obligations of the Company to the Executive
under the Employment Agreement and the Benefit Plans, whether known,
unknown or capable or incapable of being known as of the Termination
Date of thereafter. This Agreement is a release of all claims of any
nature whatsoever by the Executive against the Company, other than with
respect to the obligations of the Company to the Executive under the
Employment Agreement and the Benefit Plans, and includes, other than as
herein provided, any and all claims, demands, causes of action,
liabilities whether known or unknown including those caused by, arising
from or related to Executive's employment relationship with the Company
including, but without limitation, any and all alleged discrimination
or acts of discrimination which occurred or may have occurred on or
before the Termination Date based upon race, color, sex, creed,
national origin, age, disability or any other violation of any equal
employment opportunity law, ordinance, rule, regulation or order,
including, but not limited to, Title VII of the Civil Rights Act of
1964, as amended; the Civil Rights Act of 1991; the Age Discrimination
in Employment Act, as amended (as further described in Section 7
below); the Americans with Disabilities Act; or any other federal,
state or local laws, or regulations regarding employment discrimination
or termination of employment. This also includes claims for wrongful
discharge, fraud, or misrepresentation under any statute, rule,
regulation, or under the common law.
The Executive agrees and understands and knowingly agrees to this
release because it is his intent in executing this Agreement to forever
discharge the Company from any and all present, future, foreseen or
unforeseen causes of action except for the obligations of the Company
set forth in the Employment Agreement and the Benefit Plans.
Notwithstanding the foregoing, Executive does not release, discharge or
waive any rights to indemnification that he may have under the By-Laws
of the Company, the laws of the State of Delaware, any indemnification
agreement between the Executive and the Company or any insurance
coverage maintained by or an behalf of the Company.
(4) Release and Waiver of Claims Under the Age Discrimination in
Employment Act
Executive acknowledges that the Company encouraged him to consult with
an attorney of his choosing, and through this Agreement encourages him
to consult with his attorney respecting possible claims under the Age
Discrimination in Employment Act of 1967, as amended ("ADEA"), and that
Executive acknowledges that he understands that the ADEA is a federal
statute that prohibits discrimination, on the basis of age, in
employment, benefits, and benefit plans. Executive wishes to waive any
and all claims under the ADEA that he may have, as of the Termination
Date, against the Company, its shareholders, employees, or successors
and hereby waives such claims. Executive further understands that by
signing this Agreement he is in fact waiving, releasing and forever
giving up any claim under the ADEA that may have existed on or prior to
the Termination Date. Executive acknowledges that the Company has
informed him that he has at his option, twenty-one (21) days in which
to sign the waiver of this claim under ADEA, and he does hereby
knowingly and voluntarily waive said twenty-one (21) day period.
Executive also understands that he has seven (7) days following the
Termination Date within which to revoke the release contained in this
paragraph by providing a written notice of his revocation of the
release and waiver contained in this paragraph to the Company.
Executive further understands that this right to revoke the release
contained in this paragraph relates only to this paragraph and does not
act as a revocation of any other term of this Agreement.
(5) Proceedings
Executive has not filed, and agrees not to initiate or cause to be
initiated on his behalf, any complaint, charge, claim or proceeding
against the Company before any local, state or federal agency, court or
other body relating to his employment or the termination of his
employment (each individually, a "Proceeding"), and agrees not to
voluntarily participate in any Proceeding. Executive waives any right
he may have to benefit in any manner from any relief (whether monetary
or otherwise) arising out of any Proceeding.
(6) Remedies
If Executive initiates or voluntarily participates in any Proceeding,
or if he materially fails to abide by any of the material terms of this
Agreement or his material post-termination obligations contained in the
Employment Agreement, or if he revokes the ADEA release contained in
Paragraph 4 at this Agreement within the seven-day period provided
under Paragraph 4, the Company may, in addition to any other remedies
it may have, reclaim any amounts paid to him under the termination
provisions of the Employment Agreement or terminate any benefits or
payments that are subsequently due under the Employment Agreement,
without waiving the release granted herein. Executive acknowledges and
agrees that the remedy at law available to the Company for breach of
any of his post-termination obligations under the Employment Agreement
or his obligations under Paragraphs 3, 4, and 5 of this Agreement would
be inadequate and that damages flowing from such a breach may not
readily be susceptible to being measured in monetary terms.
Accordingly, Executive acknowledges, consents and agrees that, in
addition to any other rights or remedies which the Company may have at
law, in equity or under this Agreement, upon adequate proof of his
violation of any such provision of this Agreement, the Company shall be
entitled to immediate injunctive relief and may obtain a temporary
order restraining any threatened or further breach, without the
necessity of proof of actual damage.
Executive understands that by entering into this Agreement he will be
limiting the availability of certain remedies that he may have against
the Company and limiting also his ability to pursue certain claims
against the Company.
(7) Severability Clause
If any provision or part of this Agreement is found to be invalid or
unenforceable, only that particular provision or part so found, and not
the entire agreement, will be inoperative.
(8) Non-Admission
Nothing contained in this Agreement will be deemed or construed as an
admission of wrongdoing or liability on the part of the Company.
(9) Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware, applicable to agreements made and to
be performed in that state; and the parties agree to the jurisdiction
of the U.S. District Court for the District of Delaware, and agree to
appear in any action in such courts by service of process by certified
mail, return receipt requested, at the following addresses:
If to Company:
ULTRAMAR DIAMOND SHAMROCK CORPORATION
P.O. Box 696000,
San Antonio, Texas, 78269-6000
Attention: General Counsel.
and
If to Executive:
===========================
===========================
THE EXECUTIVE ACKNOWLEDGES THAT HE HAS READ THIS AGREEMENT AND THAT HE FULLY
KNOWS, UNDERSTANDS, AND APPRECIATES ITS CONTENTS, AND THAT HE HEREBY EXECUTES
THE SAME AND MAKES THIS AGREEMENT AND THE RELEASE AND AGREEMENTS PROVIDED FOR
HEREIN VOLUNTARILY AND OF HIS OWN FREE WILL.
IN WITNESS WHEREOF, the parties have executed this AGREEMENT as of the date
first set forth above.
By:
--------------------------------
[Executive]
ULTRAMAR DIAMOND SHAMROCK CORPORATION
By:______________________________
Name Printed:_____________________
Title:_____________________________