ULTRAMAR DIAMOND SHAMROCK CORPORATION
NONQUALIFIED 401(k) PLAN
AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1997
1. Purpose of Plan.
It is the purpose of this Plan to enable each employee who is in a
select group of management and who is considered a highly
compensated employee (as defined by the Internal Revenue Service) to
defer part of Compensation payable for future services to be
performed by such employee as an Executive of the Corporation. For
1997, an employee who earns at least Eighty Thousand and one/100
Dollars ($80,000.01) in 1996 in compensation is considered a
highly compensated employee. The dollar amount may be adjusted
each year by the Internal Revenue Service for cost of living
increases in accordance with Internal Revenue Code Sections 414(q)
and 415(d)). However, employees who were employed by Ultramar
prior to the merger of Ultramar and Diamond Shamrock, Inc. shall not
be eligible to participate in this Plan until January 1, 1998.
2. Definitions.
The following definitions are used throughout the Plan:
(a) "Account" means the account, described in Section 7 below, to
which is credited Compensation deferred in accordance with this
Plan.
(b) "Administrator" means the person designated by the Board of
Directors or by the committee described by Section 2(d) hereof
with power and authority to construe, interpret and administer
this Plan pursuant to Section 12 below.
(c) "Benefit Review Committee" means the committee appointed by the
President, Chairman of the Board and Chief Executive Officer of
the Corporation pursuant to Section 12(c) hereof with power and
authority to construe the Plan and determine all questions of
eligibility and interpretation under the Plan pursuant to
Section 12(c) below, except with respect to non-employee
Directors.
(d) "Beneficiary" means the person or persons designated from time
to time by a Participant to receive payments under this Plan
after the Participant's death, using the Notice of Beneficiary
Designation, a form of which is attached as Exhibit C, or some
other method of designation which provides Beneficiary
designation information similar to that in such Notice for
Beneficiary Designation.
(e) "Board" or "Board of Directors" means the Board of Directors of
the Corporation or any committee of such Board of Directors to
the extent that such committee has been delegated authority to
act on behalf of the Board of Directors with respect to this
Plan.
(f) "Cause" means failure to return from a leave of absence,
criminal activity, or willful misconduct or gross negligence in
the performance of duties or in the observation of written
Corporation personnel policies applicable to the Executive.
(g) "Change in Control" will be deemed to have occurred when (1) a
report is filed on Schedule 13D or Schedule 14D-1 (or any
successor schedule, form or report), each as promulgated
pursuant to the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), disclosing that any person (as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as the term
"beneficial owner" is defined under Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act) of
securities representing more than 25% of the combined voting
power of the then-outstanding voting securities of the
Corporation and such acquisition has not been authorized,
approved or recommended by majority vote of the Board of
Directors prior to the date of the filing of such report, or
(2) such other event has occurred which the Board of Directors
may, in its sole discretion, by majority vote determine to
constitute a change in control.
(h) "Code" means the Internal Revenue Code of 1986, as amended.
(i) "Common Stock" means whole shares of common stock of the
Corporation.
(j) "Compensation" means payments that may be made by the
Corporation to a Director Participant for services on the
Corporation's Board of Directors or on any committee of the
Board, including retainer fees to be paid in cash and meeting
fees, and payments that may be made by the Corporation to an
Executive Participant for services rendered to the Corporation,
including base salary and annual performance incentives.
(k) "Corporation" means Ultramar Diamond Shamrock Corporation, a
Delaware corporation, or, where the context requires, any
affiliate or subsidiary of Ultramar Diamond Shamrock
Corporation. Notwithstanding the foregoing, prior to December
3, 1996, the term Corporation shall mean Diamond Shamrock,
Inc., or, where the context requires any affiliate or
subsidiary of Diamond Shamrock, Inc.
(l) "Director" means a member or honorary member of the Board of
Directors of the Corporation.
(m) "Director Participant" means any Director who is an employee
compensated for his services on the Board of Directors, or on
any committee of the Board, and who participates in this Plan.
Notwithstanding the foregoing, no Director Participant who is
not an employee of the Corporation can make an Elective
Deferral under the terms of this Plan after December 3, 1996.
(n) "Effective Date" of this restatement means January 1, 1997.
The original plan was effective January 1, 1996.
(o) "ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
(p) "Executive" means any employee of the Corporation who is in a
select group of management and who is a highly compensated
employee ( as defined by the Internal Revenue Service). For
1997, an employee who earns at least Eighty Thousand and
one/100 Dollars ($80,000.01) in 1996 in compensation is
considered a highly compensated employee. The dollar amount
may be adjusted each year by the Internal Revenue Service for
cost of living increases in accordance with Internal Revenue
Code sections 414(q) and 415(d)).
(q) "Executive Participant" means any Executive who participates in
this Plan.
(r) "401(k) Plan" means the Diamond Shamrock, Inc. 401(k)
Retirement Savings Plan.
(s) "Notice of Beneficiary Election" means the notice provided for
in Section 12 below.
(t) "Notice of Election" means the notice provided for in Section 5
below.
(u) "Participant" means any Director Participant or Executive
Participant as the case may be.
(v) "Plan" means the Ultramar Diamond Shamrock Corporation
Nonqualified 401(k) Plan, as amended. The original plan was
referred to as the Diamond Shamrock, Inc. Nonqualified 401(k)
Plan.
(x) "Year of Service" means, with respect to a Director
Participant, a 12-consecutive-month period during which a
Director Participant served as a separately compensated member
of the Board of Directors. With respect to an Executive
Participant, service and year of service shall be determined in
the same manner as they are determined in the 401(k) Plan.
3. Eligibility.
(a) Any Director of the Corporation who is also an employee of the
Corporation shall be eligible to participate in this Plan;
provided, however, that any employee Director who initially is
compensated after January 1, in any calendar year, shall become
eligible to participate in this Plan beginning January 1 of the
following calendar year.
(b) Any Executive of the Corporation shall be eligible to
participate in this Plan; provided, however, that any person
who initially becomes an Executive after January 1 in any
calendar year shall become eligible to participate in this Plan
beginning January 1 of the following calendar year.
(c) Effective after December 3, 1996, a Director of the Corporation
who is not an employee of the Corporation shall not be eligible
to make Elective Deferrals under the terms of the Plan;
however, the account of such a Director Participant shall
continue to be maintained under the terms of the Plan.
4. Account Credits.
Accounts will be credited with Elective Deferrals and Matching
Contributions.
(a) Elective Deferrals. "Elective Deferrals" are amounts credited
to the Accounts of Participants who have agreed to defer
receipt of their base salary and/or bonus. Executive
Participants may defer from 1% to 20% of base salary and from
1% to 100% of annual incentive bonus. The percentage of base
salary and annual incentive bonus deferred must be the same up
to 6%.
(b) Matching Contributions. "Matching Contributions" are additional
amounts credited to the accounts of Participants who have made
Elective Deferrals. The Corporation will credit the
Participant's Account with an amount equal to 50% of the
Participant's Elective Deferral which is not in excess of 6% of
Compensation.
5. Manner of Election.
(a) Any Executive wishing to participate in this Plan
must file with the Administrator a written notice on
the Notice of Election, a form of which is attached as
Exhibit A, electing to defer payment of such person's
Compensation as may be permitted under this Plan. An
election shall be effective with respect to
Compensation earned during the first calendar year
that commences after the date of filing of the Notice
of Election and, except to the extent such election is
subsequently modified or terminated as provided below,
subsequent calendar years.
(b) An election may be modified by filing with the Administrator a
new Notice of Election on or before the December 31 immediately
preceding the calendar year for which such modification is to
be effective. No modification shall be effective with respect
to Compensation earned prior to the date the modification is
received by the Administrator or the effective date of the new
Notice of Election, whichever is later.
(c) An election may be terminated by the filing with the
Administrator of a Notice of Termination, a form of which is
attached as Exhibit B, on or before the December 31 immediately
preceding the first calendar year for which such termination is
to be effective. No termination shall be effective with
respect to Compensation earned prior to the date the Notice of
Termination is received by the Administrator or the effective
date of the Notice of Termination, whichever is later. An
election shall terminate on the date a person ceases to be an
Executive effective for Compensation earned on or after such
date. An election shall also terminate on the date an
Executive terminates employment with the Corporation or a
Director ceases to be a Director, as the case may be, effective
for Compensation earned on or after such date.
(d) A person for whom an election is terminated may thereafter file
a new Notice of Election for future calendar years for which
such person is eligible to participate in this Plan.
6. Deemed Investment of Contributions.
The Corporation may allow each Participant to elect one or more
deemed investment funds established by the Corporation in which
Elective Deferrals will be deemed to be invested. Matching
Contributions will be deemed to be invested, on a pro rata basis, in
the same deemed investment funds in which Elective Deferrals are
deemed to be invested.
7. Participant Accounts and Reports to Participants.
(a) The amount of any Elective Deferral and Matching Contribution
shall be credited to an Account maintained by the Corporation
on its books in the name of the Participant.
(b) The balance of the Account will be increased or decreased to
reflect income, expenses, gains, and losses deemed attributable
to the Account.
(c) The Administrator shall cause the Corporation to keep an
accurate record of the amounts credited to the Account of each
Participant, and as of the end of each calendar quarter shall
deliver to each Participant a written statement of such
Participant's Account.
8. Vesting.
Participants are 100% vested in Elective Deferrals and Matching
Contributions.
9. Participants are Unsecured Creditors.
(a) All rights, title and interest in the balance credited to the
Account of a Participant shall remain at all times solely as
the Corporation's unsecured contractual obligation under this
Plan. Neither a Participant nor any other person, including,
without limitation, any Beneficiary shall have any right, title
or interest of any kind, by reason of this Plan, in any
investment deemed to be made on behalf of a Participant or in
any specific assets of the Corporation, the Plan, or any trust
other than the Corporation's unsecured and unfunded obligation
to make the payment described in this Plan.
(b) Notwithstanding the provisions of Section 9(a) hereof, the
Corporation may transfer to the trustee of one or more trusts
established for the benefit of one or more Participants' assets
from which all or a portion of the benefits provided under the
Plan will be satisfied, provided that such assets held in trust
shall at all times be subject to the claims of general
unsecured creditors of the Corporation and no Participant shall
at any time have a prior claim to such assets.
10. Annual Distributions.
(a) In each year commencing after 1997, a distribution shall be
made to all Participants who made Elective Deferrals in the
prior year. Such distribution shall be equal to the maximum
amount of elective deferrals that the Participant could have
deferred to the 401(k) Plan in the prior year and the maximum
amount of matching contributions that could have been credited
to the Participant's account in the 401(k) Plan in the prior
year. Such distribution shall be made to the Participant no
later than March 31 of that year.
(b) The balance of a Participant's Account shall be appropriately
reduced to reflect distributions made hereunder.
11. Payment.
(a) Except in the case of the retirement, disability or death of a
Participant, a distribution of such Participant's Account
balance shall commence as of the earlier of:
(i) to the extent practicable, in the sole discretion of the
Administrator, the last day a Director Participant is a
Director or an Executive Participant is an employee of the
Corporation, but not later than the last day of the month
following the date a Director Participant ceases to be a
Director or an Executive Participant ceases to be an
employee of the Corporation; or
(ii) any date specified by such Participant on the Notice of
Election for distribution of such Participant's Account
(which specified date is not after the January 1 following
the calendar year in which such Participant reaches age
70).
In the case of a distribution by reason of (i) above, such
distribution shall be in the form of a lump sum, regardless of the
election of the Participant on the Notice of Election. A non-
employee Director Participant who continues service with the
Corporation after December 3, 1996 shall not be considered to cease
to be a Director because of the merger of Diamond Shamrock, Inc. and
Ultramar Corporation.
(b) In the event of a Participant's retirement or disability, a
distribution of such Participant's Account balance shall
commence as of the later of:
(i) to the extent practicable, in the sole discretion of the
Administrator, the last day a Director Participant is a
Director or an Executive Participant is an employee of
the Corporation, but not later than the last day of the
month following the date a Director Participant ceases
to be a Director or an Executive Participant ceases to
be an employee of the Corporation; or
(ii) any date specified by such Participant on the Notice of
Election for distribution of such Participant's Account
(which specified date is not after the January 1
following the calendar year in which such Participant
reaches age 70).
In the case of distribution by reason of this Section 11(b), such
distribution shall be in the form elected by the Participant on
the Notice of Election. A non-employee Director Participant who
continues service with the Corporation after December 3, 1996
shall not be considered to cease to be a Director because of the
merger of Diamond Shamrock, Inc. and Ultramar Corporation.
(c) In the event of a Participant's employment or services as a
Director are terminated following a Change in Control, the
Participant's Account shall be distributed in a lump sum to
the Participant withing sixty (60) days of such termination.
(d) In the event of a Participant's death, the balance of the
Account shall be distributed in a lump sum to the Beneficiary
designated pursuant to Section 12 below. The lump sum
payment shall be paid as of the last day of the month
following the Participant's date of death.
(e) Distributions from the Plan will be made in the form of cash.
Distributions will be made to the Participant or, in the
event of such Participant's death, to the designated
Beneficiary, in accordance with the Participant's election
and Section 12 below.
(f) On each date for an installment distribution, there shall be
distributed to the Participant an amount equal to the sum of
the balance then credited to such Participant's Account
multiplied by a fraction, the numerator of which is one and
the denominator of which is the number of remaining
installments.
(g) Notwithstanding the provisions of Sections 11(a), (b), (c),
(d) and (e) hereof, the person or group designated in clause
(i), (ii) or (iii), below, as appropriate, in its absolute
discretion exercised in good faith, may accelerate the rate
of distribution but only in the case of unanticipated severe
financial hardship caused by circumstances over which the
Participant has no control, and only to the extent necessary
to alleviate such financial hardship.
(i) In the case of a Director Participant, an ad hoc
committee of the Board consisting of those members of
the Compensation Committee of the Board who are not
Participants in the Plan. If all the members of the
Compensation Committee participate in the Plan, such
decision shall be made by the Board; however, no member
of the Board shall participate in any such decision
affecting uniquely such member as a Participant.
(ii) In the case of an Executive Participant, the
Administrator.
(iii) Notwithstanding clause (i) or (ii), above, if one or
more trusts have been established pursuant to Section 9
(b) hereof, to the extent assets in such trust or trusts
are available therefor, the trustee of the trust.
(h) The balance of a Participant's Account shall be appropriately
reduced in accordance with this Section 11 to reflect
distributions made hereunder.
(i) Any election with respect to the distribution of Compensation
deferred for a given period pursuant to this Plan shall be
irrevocable.
(j) The balance of a Participant's Account may be reduced by the
amount of any indebtedness of such Participant to the
Corporation at the time of distribution. Failure to reduce any
payment to a Participant will not constitute waiver of the
Corporation's claim for such indebtedness.
(k) Notwithstanding the foregoing provisions of this Section 11,
the Corporation shall make provision for the withholding of any
Federal taxes that may be required to be withheld by the
Corporation in connection with the payments due hereunder.
12. Beneficiary Designation.
A Participant may designate in writing any person or persons to whom
payments are to be made if the Participant dies before receiving
payment of all amounts due under this Plan and the proportion or
proportions in which distributions are to be made to each such
person, using the Notice of Beneficiary Designation, a form of which
is attached as Exhibit C, or some other method of designation which
provides Beneficiary designation information similar to that in such
Notice of Beneficiary Designation. A Participant may designate a
Beneficiary other than a spouse only if the spouse consents in
writing as witnessed by a notary public. A Beneficiary designation
will be effective only after the Notice of Beneficiary Designation
or other designation is filed with and accepted by the Administrator
while the Participant is alive and, to the extent indicated by the
Participant in the Notice of Beneficiary Designation or other
designation, will cancel all beneficiary designations signed and
filed earlier by such Participant. Any such designation may be
terminated or modified from time to time by the Participant. If
and to the extent that a Participant fails to designate a
Beneficiary or if all of the Beneficiaries of the Participant die
before the death of the Participant or before complete payment of
all amounts credited to the Participant's Account under this Plan,
the remaining unpaid amount shall be paid in one lump sum to the
estate of the last to die of the Participant or the Participant's
Beneficiaries.
13. Administration of the Plan.
(a) Except as provided in Section 11(f), full power and authority
to construe, interpret and administer this Plan shall be vested
in the Administrator, who may from time to time adopt any rules
or regulations the Administrator determines are necessary or
appropriate. If there is no Administrator, the power and
authority of the Administrator shall rest with Board; however,
no member of the Board shall participate in any decision
affecting uniquely such member as a Participant. Decisions of
the Administrator, the ad hoc committee described in Section
11(f) and the Board made in good faith, shall be final,
conclusive and binding upon all parties.
(b) In the absence of bad faith or gross neglect of duty, neither
the Administrator nor any member of the Benefit Review
Committee, Compensation Committee, or Board of Directors shall
have any liability to the Corporation or to any other person,
firm or corporation arising out of or connected with the
administration of this Plan for any decision made respecting
this Plan or its administration.
(c) The President, Chairman of the Board and Chief Executive
Officer of the Corporation shall appoint a Benefit Review
Committee consisting of not less than three nor more than five
persons, having the administrative responsibilities and
discretionary authority described in this Section 13. The
Benefit Review committee has full power and authority to
construe the Plan and determine all questions of eligibility
and interpretation under the Plan, except with respect to non-
employee Directors, in which case the Compensation Committee of
the Board of Directors has full power and authority to construe
the Plan and determine all questions of eligibility and
interpretation under the Plan. The determination of the
Compensation Committee shall be final and binding, and not
subject to Subsection (d), below.
(d) The Plan and any claims of all Participants, with the sole
exception of non-employee Directors, arising from the Plan or
in any way related to the Plan, are subject to and governed by
the Ultramar Diamond Shamrock Corporation Dialogue Dispute
Resolution Program ("Dialogue"). If a claim has been appealed
from the Administrator to the benefit review committee and the
claimant desires to appeal the decision of the Benefit Review
Committee, such appeal must be conducted solely within the
limitations and procedures of Dialogue.
14. Amendment or Discontinuance of Plan.
At the sole discretion of the Board this Plan may be discontinued or
changed at any time. Upon such discontinuance, the vested amounts
credited to the Account of any Participant shall be distributed in
satisfaction of the obligations of the Corporation under this Plan,
in the manner selected at the option of the Board or at the option
of the Administrator if so directed by the Board, as follows:
(a) The Account balance may be distributed in a lump sum as of the
date of discontinuance in a manner consistent with Section 11
hereof. The lump sum payment shall be made on the last day of
the month following the date of discontinuance; or
(b) The Account balance may be distributed in accordance with the
Notice of Election; or
(c) Commencing on the last day of the month following the date of
discontinuance, the Account balance may be distributed in no
more than ten annual installments, calculated in the same
manner as payments under Section 11(e).
Notwithstanding the foregoing provisions of this Section 14, the
Board may make any change in this Plan that, under all the
circumstances, is beneficial and equitable to the Participants and
is consistent with the spirit and purposes of this Plan or is
required to protect the tax-deferred status of the Plan. However,
no member of the Board who is a Participant in the Plan shall
participate in any such decision affecting uniquely such member as a
Participant.
The Plan is intended to provide benefits for "management or highly
compensated" employees within the meaning of Sections 201, 301 and
401 of ERISA, and therefore to be exempt from the provisions of
Parts 2, 3 and 4 of Title I of ERISA. Accordingly, the Plan shall
terminate and no further benefit shall accrue hereunder in the event
it is determined by a court of competent jurisdiction or by an
opinion of counsel to the Corporation that such balance of the Plan
constitutes an employee pension benefit plan within the meaning of
Section 3(2) of ERISA, which is not so exempt. In addition, in the
absolute discretion of the Board, the vested benefit of each
Participant accrued under such balance of the Plan on the date of
termination shall be paid immediately to such Participant in a lump
sum. Alternatively, the Plan shall refund Elective Deferrals and
earnings in a lump sum if legislative changes require refunds to
protect the tax-deferred status of the Plan.
15. Miscellaneous.
(a) Except insofar as permitted by applicable law, no sale,
transfer, alienation, assignment, pledge, collateralization or
attachment of any benefits under the Plan shall be valid or
recognized by the Corporation. The Participant, his spouse and
his designated Beneficiary shall not have any power to
hypothecate, mortgage, commute, modify or otherwise encumber in
advance of any of the benefits payable hereunder, nor shall any
of said benefits be subject to seizure for the payment of any
debts, judgements, alimony, maintenance owed by the Participant
or his or her Beneficiary, or be transferable by operation of
law in the event of bankruptcy, insolvency, or otherwise.
Notwithstanding the foregoing, the Corporation may, if the
Committee so determines in its sole discretion, follow the
terms of any court order issued in connection with any domestic
relations proceeding including but not limited to marital
dissolution or child support.
(b) The Plan shall be binding upon the Corporation, its assigns,
and any successor company which shall succeed to substantially
all of its assets and business through merger, acquisition or
consolidation, and upon a Participant, his Beneficiary,
assigns, heirs, executors and administrators.
(c) The terms and conditions of the Plan shall not be deemed to
constitute a contract or employment between the Corporation and
a Participant. Nothing in this Plan shall of itself be deemed
to give a Participant the right to be retained in the service
of the Corporation or to interfere with any right of the
Corporation to discipline or discharge the Participant at any
time.
(d) A Participant shall cooperate by furnishing any and all
information reasonably requested by the Corporation, the Board
or the Administrator, and take such other actions as may be
requested in order to facilitate the administration of the Plan
and the payment of benefits hereunder.
(e) In case any provision of this Plan shall be found illegal or
invalid for any reason, said illegality or invalidity shall not
affect the remaining parts hereof, but the Plan shall be
construed and enforced as if such illegal and invalid provision
had never been included herein.
(f) Any Notice which shall be or may be given under the Plan shall
be in writing and shall be mailed by United States mail,
postage prepaid. If Notice is to be given to the Corporation
(or the Board or the Administrator), such Notice shall be
addressed to the Corporation at P.O. Box 696000, San Antonio,
Texas 78269-6000, Attention: Vice President, Human Resources;
if Notice to a Participant, addressed to the last known address
on the Corporation's personnel records. Any Notice or filing
required or permitted to be given to a Participant under this
Plan shall be sufficient if in writing and hand-delivered, or
sent by mail, to the last known address of the Participant.
Any party may, from time to time, change the address to which
notices shall be mailed by giving written Notice of such new
address.
(g) The interest in the benefits hereunder of a spouse of a
Participant who has predeceased the Participant shall
automatically pass to the Participant and shall not be
transferable by such spouse in any manner, including but not
limited to such spouse's will, nor shall such interest pass
under the laws of intestate succession.
(h) The benefits provided for a Participant and Participant's
Beneficiary under the Plan are in addition to any other
benefits available to such Participant under any other plan or
program for employees of the Corporation. The Plan shall
supplement and shall not supersede, modify or amend any other
such plan or program except as may otherwise be expressly
provided herein.
(i) The payment of benefits under the Plan to a Participant or
Beneficiary shall fully and completely discharge the
Corporation and the Board from all further obligations under
this Plan with respect to the portion of the benefits so paid.
(j) If any action at law or in equity is necessary by a Participant
or Beneficiary to enforce the terms of the Plan, the
Participant or Beneficiary shall be entitled to recover
reasonable attorney's fees, costs and necessary disbursements
in addition to any other relief to which that party may be
entitled.
(k) (i) Unless the context clearly indicates otherwise, (A)
masculine pronouns shall include the feminine and
singular words shall include the plural and vice versa;
(B) any reference to a section of the Code or ERISA, any
regulation promulgated under the Code or ERISA or any
plan (except this Plan) shall refer also to any
successor provision to such section, and (C) any
reference to a plan shall refer also to such plan as
amended from time to time.
(ii) Titles and headings of the articles and sections of the
Plan are included for ease of reference only and are not
to be used for the purpose of construing any portion or
provision of the Plan document.
(l) This instrument and any Notice may be executed in one or more
counterparts, each of which is legally binding and enforceable.
(m) Except to the extent other instruments are incorporated herein
by reference or there are amendments made to this Plan in
the manner specified by Article 13 hereof, this instrument
constitutes the entire Plan.
16. Governing the Law.
To the extent not preempted by Federal law, the provisions of this
Plan shall be interpreted and construed in accordance with the laws
of the State of Texas.
17. Effective Date.
The effective date for this Plan shall be January 1, 1997.
Ultramar Diamond Shamrock Corporation
By: /s/ Timothy J. Fretthold
Executive Vice President
Name
(Print)
Exhibit A
Notice of Election for
Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan
1. Pursuant to the provisions of the Plan, I elect to have compensation
payable to me for services to Ultramar Diamond Shamrock Corporation
deferred in the manner specified below. I understand that this
election shall be irrevocable as to compensation earned by me
following the filing and effectiveness of this election, except to
the extent I file a subsequent Notice of Election or Notice of
Termination with the Administrator applicable to compensation earned
by me in a calendar year subsequent to such filing.
I also understand that no modification or termination shall be
effective with respect to compensation deferred prior to the
calendar year following the date any subsequent Notice of Election
or Notice of Termination is received by the Administrator.
2. Percentage of compensation deferred (Retirement Account).
% of Compensation-Base Salary and Annual Incentive Bonus (minimum
amount is 1% and maximum amount is 20%).
The percentage of Base Salary and Annual Incentive Bonus deferred
must be the same up to 6%. If you defer at least 6% of your total
compensation and wish to defer a greater percentage of Annual
Incentive Bonus than of Base Salary, please note this percentage
below:
% of Annual Incentive Bonus (total amount, including percent
deferred above; maximum amount is 100%).
3. Percentage of compensation deferred (Fixed Account).
% of Compensation-Base Salary and Annual Incentive Bonus (minimum
amount is 1% and maximum amount for Retirement and Fixed Accounts
combined is 20%).
% of Annual Incentive Bonus (total amount, including percent
deferred above; maximum amount is 100%).
4. Annual Distributions
(a) Defer to the 401(k) Plan the distribution from the
Nonqualified Plan equal to the maximum amount of elective
deferrals and matching contributions that could have been
credited to the 401(k) Plan in the prior year. I understand that
this distribution will not be included in my gross income in the
prior year.
(b) Distribute to me in cash the distribution from the
Nonqualified Plan equal to the maximum amount of elective
deferrals and matching contributions that could have been
credited to the 401(k) Plan in the prior year. I understand that
this amount will be included in my gross income in the prior
year.
5. Deemed Investment Funds
% Ultramar Diamond Shamrock % Fidelity Advisor Income
Corporation Common Stock and Growth Fund
Fund
% CIGNA Guaranteed Long Term % Fidelity Advisor
Fund (1) Strategic Opportunities
Fund
% Fidelity Advisor Growth %Warburg Pincus Advisor
Opportunities Account Emerging Growth Fund
% Vanguard S&P 500 Index % Warburg Pincus Advisor
Fund (2) International Equity Fund
% INVESCO Industrial Income Fund % Twentieth Century Ultra
Fund
(1) Any funds in this account which may be transferred to the Ultramar
Diamond Shamrock Corporation 401(k) Retirement Savings Plan will
initially be deposited in the CIGNA Fixed Income Account.
(2) Any funds in this account which may be transferred to the Ultramar
Diamond Shamrock Corporation 401(k) Retirement Savings Plan will
initially be deposited in the CIGNA Stock Market Index Account.
6. Date of commencement of Retirement Account payments.
Except in the case of retirement, disability or death of a
Participant, distribution will be made, pursuant to Section 11(a)
of the Plan, on the earlier of:
(a) the date an Executive Participant ceases to be an employee of
the Corporation, or
(b) the commencement date specified below (select one):
retirement.
the January 1 following the calendar year in which I
retire.
the January 1 following the calendar year in which I reach
age 70.
the following date (which shall in no event be after the
January 1 following the calendar year in which I reach age
70) .
In the event of a Participant's retirement or disability,
distribution will commence, pursuant to Section 11(b) of the Plan,
on the later of (a) the date an Executive Participant ceases to be
an employee of the Corporation or (b) the date selected above.
7. Method of Retirement Account payment (select one) (see Note 2 at end
of Notice).
Lump sum, or
Annual installments over a period of years (not over ten).
8. Date of commencement of Fixed Account lump sum payment.
Except in the case of retirement, disability or death of a Participant,
distribution will be made, pursuant to Section 11(a) of the Plan, on the
earlier of:
(a) the date an Executive Participant ceases to be an employee of
the Corporation, or
(b) the following date (which shall in no event be after the
January 1 following the calendar year in which I reach age 70)
.
In the event of a Participant's retirement or disability, distribution
will commence, pursuant to Section 11(b) of the Plan, on the later of
(a) the date an Executive Participant ceases to be an employee of the
Corporation or (b) the date selected above.
Notes to Notice of Election
1. Participants should be aware that a deferral may reduce the benefit
payable under the Ultramar Diamond Shamrock Corporation Career
Average Retirement Income Plan (the "CARIP") and the Ultramar
Diamond Shamrock Corporation Employee Stock Ownership Plan I (the
"ESOP I") and the Ultramar Diamond Shamrock Corporation Employee
Stock Ownership Plan II (the "ESOP II"). Any amount deferred to a
date following termination of employment will not be taken into
account for purposes of computing the CARIP, ESOP I, and the ESOP II
qualified pension benefits. As a result, the CARIP, ESOP I, and
ESOP II qualified pension benefits will be less than if the deferral
had been paid prior to the Participant's termination of employment.
Such "lost" benefits will be paid pursuant to the Ultramar Diamond
Shamrock Corporation Excess Benefits Plan. Amounts paid pursuant to
the Excess Benefits Plan are not adjusted for the loss of any tax
benefits which would have been realized had such benefits been paid
under a qualified plan.
2. All distributions under the Plan represent taxable income to the
Participant and may not be rolled over to an Individual Retirement
Account.
3. Participants who no longer qualify as highly compensated employees
as defined in the 401(k) Plan will no longer be eligible to make
Elective Deferrals to this Plan.
Date Signature
Date Notice of Election received by the Administrator:
Date Signature
Name
(Print)
EXHIBIT B
Notice of Termination
for
Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan
Pursuant to the provisions of the Plan, I hereby terminate my
participation in the Plan effective as of January 1, 19 .
Date Signature
Date Notice of Termination received by the Administrator:
Date Signature
Administrator
Name
(Print)
Exhibit C
Notice of Beneficiary Designation
for
Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan (the
"Plan")
Any amounts credited to my account under the Plan unpaid at my death
shall be paid to the following beneficiary or beneficiaries, in the
proportions designated:
%
Name Proportion Relationship
Address
Name Proportion Relationship
Address
This designation supersedes any previous beneficiary designation made by
me with respect to the amounts credited to my account under the Plan. I
hereby reserve the right to terminate or modify any designation made by
this Instrument, at any time or from time to time.
Participant's
Date Signature
Witness'
Date Signature
A Participant may designate a Beneficiary other than a spouse only if
the spouse consents in writing as witnessed by a notary public.
Spousal Waiver
I understand that my signature below acknowledges my full consent to the
above beneficiary designation which limits my claim to any benefits from
the Ultramar Diamond Shamrock Corporation Nonqualified 401(k) Plan in
the event of the death of my spouse, and my signature is notarized
below.
Spouse's
Date Signature
Notarization of Spouse's Signature
The State of
County of
Subscribed and Sworn to me this day of , 19 .
Seal Signature
Notary Public
My commission expires
Date Notice of Designation received by the Administrator:
Date Signature
Administrator
Note: Other methods of beneficiary designation which provide
beneficiary designation information similar to that in this
Instrument may be used instead of this Instrument.