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EXHIBIT 10.1.2
TWENTY-FIRST AMENDMENT TO
NATIONAL CONVENIENCE STORES INCORPORATED
PROFIT SHARING PLAN AND TRUST
AS AMENDED AND RESTATED
W I T N E S S E T H
National Convenience Stores Incorporated ("Company") and Cullen Center
Bank and Trust ("Trustee") entered into the Profit Sharing Plan and Trust
Agreements, effective July 1, 1968, creating the National Convenience Stores
Incorporated Profit Sharing Plan and Separate Trust Agreement. The Plan and
Trust have been amended twenty (20) times with the Fourth Amendment
consolidating the Profit Sharing Plan and Trust Agreement, with the effective
date of the First and Second Amendments being July 1, 1968, the effective date
of the Third and Fourth and Fifth Amendments being July 1, 1976, the effective
date of the Sixth Amendment being July 1, 1977, the effective date of the
Seventh Amendment being July 1, 1978, the effective date of the Eighth and
Ninth Amendments being July 1, 1981, the effective date of the Tenth Amendment
being July 1, 1982, the effective date of the Eleventh Amendment, substituting
Texas Commerce Bank as Trustee, being January 1, 1985, the effective date of
the Twelfth Amendment being January 1, 1985, the effective date of Thirteenth
Amendment being January 1, 1985, the effective date of the Fourteenth Amendment
being July 1, 1985, the effective date of the Fifteenth Amendment being July 1,
1986, the effective date of the Sixteenth Amendment being July 1, 1987, the
effective date of the Seventeenth Amendment being generally July 1, 1987, and
the effective date of the Eighteenth Amendment being September 30, 1991, the
effective date of the Nineteenth Amendment being July 1, 1993, and the general
effective date of the Twentieth Amendment and Restatement (the "Plan and
Trust") being July 1, 1989. Article XVI, Section 16.1 of the Plan and Trust
permits the Company to amend the Plan and Trust. Effective as if the
amendments made below were originally included in the Twentieth Amendment and
Restatement, the Plan and Trust is hereby amended as follows:
1. Section 1.3 is amended by adding at the end thereof
the following new paragraph:
For the purpose of determining the Actual
Contribution Percentage of a Highly Compensated Eligible
Employee who is either a 5% owner or one of the ten (10)
Highly Compensated Eligible Employees paid the greatest amount
of compensation (as defined under Code Section 415) during the
Plan Year, and is thereby subject to the family aggregation
rules of Code Section
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414(q)(6), the Actual Contribution Percentage for the
family group (which is treated as one Highly Compensated
Eligible Employee) is the Actual Contribution Percentage
determined by combining the contributions and compensation of
all eligible Family Members. Except to the extent taken into
account in the preceding sentence, the contributions and
compensation of all Family Members are disregarded in
determining the Actual Contribution Percentages for the groups
of Highly Compensated Eligible Employees and Non-Highly
Eligible Compensated Employees.
2. Section 1.15 is amended by deleting the second to
last sentence therein and adding the following paragraph at the end
thereof:
In addition to other applicable limitations set forth
in the Plan, and notwithstanding any other provision of the
Plan to the contrary, for Plan Years beginning on or after
January 1, 1994, the annual compensation of each employee
taken into account under the Plan shall not exceed the OBRA
'93 annual compensation limit. The OBRA '93 annual
compensation limit is $150,000, as adjusted by the
Commissioner for increases in the cost of living in accordance
with Section 401(a)(17)(B) of the Internal Revenue Code. The
cost-of-living adjustment in effect for a calendar year
applies to any period, not exceeding 12 months, over which
compensation is determined (determination period) beginning in
such calendar year. If a determination period consists of
fewer than 12 months, the OBRA '93 annual compensation limit
will be multiplied by a fraction, the numerator of which is
the number of months in the determination period, and the
denominator of which is 12.
For Plan Years beginning on or after January 1, 1994,
any reference in this Plan to the limitations under Section
401(a)(17) of the Code shall mean the OBRA '93 annual
compensation limit set forth in this provision.
If compensation for any prior determination period is
taken into account in determining an employee's benefits
accruing in the current Plan Year, the compensation for that
prior determination period is subject to the OBRA '93 annual
compensation limit in effect for that prior determination
period. For this purpose, for determination periods beginning
before the first day of the first Plan Year beginning on or
after January 1, 1994, the OBRA '93 annual compensation limit
is $150,000.
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3. Section 1.47 is amended by inserting after the term "
'Trustee' means" the following:
Merrill Lynch Trust Company of Texas.
4. Section 3.5 is amended by inserting at the end
thereof the following paragraph:
The amount of Excess Contribution to be
recharacterized under Section 3.5(2) above or distributed
under 3.5(1) above with respect to a Highly Compensated
Eligible Employee for a Plan Year, shall be reduced by any
Excess Deferral Contribution previously distributed to such
Employee under Section 3.7 below for the taxable year ending
with or within the Plan Year.
5. Section 3.6 is amended -
a) by adding after the end of the first sentence therein
the following new paragraph, with the second sentence therein
to thereafter begin as a new paragraph:
For this purpose, an eligible employee is any
employee who is directly or indirectly eligible to
receive an allocation of matching contributions or to
make employee contributions and includes: an
employee who would be a plan participant but for the
failure to make required contributions; an employee
whose right to make employee con-tributions or to
receive matching contributions has been suspended
because of an election (other than certain one-time
elections) not to participate; and an employee who
cannot make an employee contribution or receive a
matching contribution because section 415(c)(1) or
section 415(e) prevents the employee from receiving
additional annual additions. In the case of an
eligible employee who makes no employee contributions
and who receives no matching contributions, the
contribution ratio that is to be included in
determining the Actual Contribution Percentage is
zero. For a plan year, contributions will be taken
into account as follows: An employee contribution is
to be taken into account if it is paid to the trust
during the plan year or paid to an agent of the plan
and transmitted to the trust within a reasonable
period after the end of the plan year. An excess
contribution to a cash or deferred arrangement that
is recharacterized (but only if such
recharacterization is properly provided for under
Section 3.3(2) above) is to be taken into account in
the plan year in which the contribution would have
been received in cash by the employee had the
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employee not elected to defer the amounts. A
matching contribution taken into account for a plan
year only if it is (1) made on account of the
employee's elective or employee contributions for the
plan year, (2) allocated to the employee's account as
of a date within that year, and (3) paid to the trust
by the end of the 12th month following the close of
that year. Qualified matching contributions which
are used to meet the requirements of Code Section
401(k)(3)(A) are not to be taken into account for
purposes of the ACP test of Code Section 401(m). For
purposes of determining whether a plan satisfies the
actual contribution percentage test of Code Section
401(m), all employee and matching contributions that
are made under two or more plans that are aggregated
for purposes of Code Section 401(a)(4) and 410(b)
(other than section 410(b)(2)(A)(ii)) are to be
treated as made under a single plan and that if two
or more plans are permissively aggregated for
purposes of Code Section 401(m), the aggregated plans
must also satisfy Code Section 401(a)(4) and 410(b)
as though they were a single plan.
b) by adding at the end thereof the following paragraph:
The distribution (or forfeiture, if
applicable) of excess aggregate contributions will
include the income allocable thereto. The income
allocable to the excess aggregate contributions
includes income for the plan year for which the
excess aggregate contributions were made and may
include income for the period between the end of the
plan year and the date of distribution (or
forfeiture). The manner in which income allocable to
excess aggregate contributions is to be calculated
shall be made in accordance with Treas. Reg. Section
1.401(m)-1(e)(3)(ii).
and,
c) by deleting the last paragraph therein and
substituting therefor the following paragraph:
Restriction on Multiple Use of Alternative
Limit. In addition to the limits prescribed by this
Section 3.3 and Section 3.8 of this Article III, in
the event the limits in those sections have been both
satisfied under the 1.25 or (a) portion limit or
otherwise in a manner that would violate Section
401(m)(9)(A) of the Code, the provisions of Section
1.401(m)-2 of the Treasury Regulations shall be
applied and complied with in order to satisfy this
requirement. This may result in corrective
distributions to certain Highly Compensated Eligible
Employees. Any corrections or other adjustments made
to satisfy this requirement shall be determined by
the Committee in accordance with the Treasury
Regulations. The corrective distribution shall be
first made by reducing the Actual Deferral
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Percentage and with respect to all Highly Compensated
Eligible Employees.
6. Section 7.10 shall be amended by adding at the end
thereof the following paragraph:
Notwithstanding the preceding provisions of Section
7.10(b), in the event of the complete termination of the Plan,
amounts of Accounts and benefits under this Plan due to be
distributed to missing Participants or Beneficiaries shall be
preserved and protected outside the Plan by purchase of an
annuity or other acceptable method including the establishment
of an individual retirement account or other bank or financial
institution interest bearing or fixed income account in the
name of or for the benefit of such missing Participant or
Beneficiary.
7. Section 9.8 is amended by adding at the end thereof
the following paragraph:
If a distribution is one to which Sections 401(a)(11)
and 417 of the Code do not apply, such distribution may
commence less than 30 days after the notice required under
Section 1.411(a)-11(c) of Treasury Regulations is given,
provided that:
(1) the Committee clearly informs the
Participant that the Participant has a right to a
period of at least 30 days after receiving the notice
to consider the decision of whether or not to elect a
distribution (and, if applicable, a particular
distribution option), and
(2) the Participant, after receiving the
notice, affirmatively elects a distribution.
8. The Plan and Trust as amended hereby shall be
continued.
IN WITNESS WHEREOF, the Company has caused this Twenty-First Amendment
to be executed in its name and on its behalf by the proper officers thereunto
duly authorized this 9th day of August 1994.
NATIONAL CONVENIENCE STORES
INCORPORATED
ATTEST:
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By _________________________________
_____________________________ V. H. Van Horn, President
A. J. Gallerano, Secretary
The foregoing Twenty-First Amendment of the National Convenience
Stores Incorporated Profit Sharing Plan and Trust is hereby accepted and agreed
to by:
Merrill Lynch Trust Company of Texas
______________________, 1994 By:_________________________________
, Vice President
and Trust Officer
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