<PAGE> 1
As filed with the Securities and Exchange Commission on September 30, 1998
REGISTRATION NO. 333-
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================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
-------------------------
PRIME BANCSHARES, INC.
(Exact name of registrant as specified in its charter)
TEXAS 76-0088973
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
12200 NORTHWEST FREEWAY
HOUSTON, TEXAS 77092
(713) 209-6000
(Address of Principal Executive Offices)
PRIME BANK EMPLOYEES' 401(k) PROFIT SHARING PLAN
(Full Title of Plan)
STUART D. SAUNDERS
GENERAL COUNSEL
PRIME BANCSHARES, INC.
12200 NORTHWEST FREEWAY
HOUSTON, TEXAS 77092
(Name and address of agent for service)
713-209-6000
(Telephone number, including area code, of agent for service)
Copy to:
MARGARET B. SYMONDS
BRACEWELL & PATTERSON, L.L.P.
SOUTH TOWER, PENNZOIL PLACE
711 LOUISIANA STREET, SUITE 2900
HOUSTON, TEXAS 77002-2781
(713) 223-2900
---------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
PROPOSED
MAXIMUM PROPOSED AMOUNT OF
TITLE OF AMOUNT TO OFFERING MAXIMUM AGGREGATE REGISTRATION
SECURITIES TO BE REGISTERED BE REGISTERED(1) PRICE PER SHARE (2) OFFERING PRICE(2) FEE
- ------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $.25 per share 200,000 shares $16.44 $3,288,000 $969.96
========================================================================================================================
</TABLE>
(1) Pursuant to Rule 457(h)(1), the registration fee is calculated with
respect to shares to be purchased pursuant to the Prime Bank Employees'
401(k) Profit Sharing Plan (the "Plan"). In addition, pursuant to
Rule 416(c) of the Securities Act of 1933, as amended (the "Act"),
this Registration Statement also registers an indeterminate amount of
interests to be offered or sold pursuant to the Plan which is
described herein.
(2) The proposed maximum offering price per share and the proposed maximum
aggregate offering price are (a) calculated, pursuant to Rule
457(h)(1), by multiplying the number of shares to be registered by the
average of the high and low prices of a share of Common Stock, as
reported on The Nasdaq Stock Market, Inc., on September 23, 1998, which
was $16.44, and (b) provided herein for the sole purpose of
determining the registration fee. Pursuant to Rule 457(h)(2), no
separate fee is required with respect to the plan interests.
<PAGE> 2
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information.*
Item 2. Registrant Information and Employee Plan Annual Information.*
* The information required by Items 1 and 2 of Part I of Form S-8 is
omitted from this Registration Statement in accordance with the Note to
Part 1 of Form S-8 and Rule 428 promulgated under the Act.
I-1
<PAGE> 3
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
Prime Bancshares, Inc., a Texas corporation, (the "Company") and the
Prime Bank Employees' 401(k) Profit Sharing Plan (the "Plan"), hereby
incorporate by reference into this registration statement (the "Registration
Statement"):
(i) the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1997, as filed with
the Securities and Exchange Commission (the
"Commission") on March 9, 1998;
(ii) the Company's Quarterly Report on Form 10-Q for the
quarter ended March 31, 1998, as filed with the
Commission on May 8, 1998;
(iii) the Company's Quarterly Report on Form 10-Q for the
quarter ended June 30, 1998, as filed with the
Commission on August 14, 1998; and
(iv) the description of the Company's Common Stock, par
value $.25 per share, contained in the Company's Form
8-A, dated September 19, 1997, including any
amendment or report filed for the purpose of updating
such description.
All documents filed by the Company or the Plan with the Commission
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), subsequent to the filing date of this
Registration Statement and prior to the filing of a post-effective amendment to
this Registration Statement which indicates that all securities offered have
been sold or which deregisters all securities then remaining unsold, shall be
deemed to be incorporated by reference in this Registration Statement and to be
a part hereof from the date of filing of such documents.
The Company will provide, without charge, to each participant in the
Plan, on written or oral request of such person, a copy of any or all of the
documents (without exhibits, unless such exhibits are specifically incorporated
by reference), incorporated by reference pursuant to this Item 3. All such
requests should be directed to Prime Bancshares, Inc., 12200 Northwest Freeway,
Houston, Texas 77092, Attention: Stuart D. Saunders, General Counsel. The phone
number at that address is (713) 209-6000.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Amended and Restated Articles of Incorporation (the
"Articles of Incorporation") and Amended and Restated Bylaws ("Bylaws") require
the Company to indemnify officers and directors of the Registrant to the fullest
extent permitted by Article 2.02-1 of the Texas Business Corporation Act
("TBCA") of the State of Texas.
II-1
<PAGE> 4
Generally, Article 2.02-1 of the TBCA permits a corporation to indemnify a
person who was, is, or is threatened to be a named defendant or respondent in a
proceeding because the person was or is a director or officer if it is
determined that such person (i) conducted himself in good faith, (ii) reasonably
believed (a) in the case of conduct in his official capacity as a director or
officer of the corporation, that his conduct was in the corporation's best
interests, or (b) in the case of other situations, that his conduct was at least
not opposed to the corporation's best interests, and (iii) in the case of any
criminal proceeding, had no reasonable cause to believe that his conduct was
unlawful. In addition, the TBCA requires a corporation to indemnify a director
or officer for any action that such director or officer is wholly successful in
defending on the merits.
The Company's Articles of Incorporation provide that a director of the
Company will not be liable to the corporation for monetary damages for an act or
omission in the director's capacity as a director, except to the extent not
permitted by law. Texas law does not permit exculpation of liability in the case
of (i) a breach of the director's duty of loyalty to the corporation or its
shareholders, (ii) an act or omission not in good faith that involves
intentional misconduct or a knowing violation of the law, (iii) a transaction
from which a director received an improper benefit, whether or not the benefit
resulted from an action taken within the scope of the director's office, (iv) an
act or omission for which the liability of the director is expressly provided by
statute, or (v) an act related to an unlawful stock repurchase or dividend.
The Company may provide liability insurance for each director and
officer for certain losses arising from claims or changes made against them
while acting in their capabilities as directors or officers of the Company,
whether or not the Company would have the power to indemnify such person against
such liability, as permitted by law.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Amended and Restated Articles of Incorporation of the Company (incorporated
by reference from Exhibit 3.1 to the Company's Registration Statement on
Form S-1; Registration No. 333-33001).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference from
Exhibit 3.2 to the Company's Registration Statement on Form S-1;
Registration No. 333-33001).
4.3* Prime Bank Employees' 401(k) Profit Sharing Plan.
23* Consent of Grant Thornton LLP.
24* Power of Attorney (included on page II-4).
- -----
*Filed herewith.
ITEM 9. UNDERTAKINGS.
A. The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or
sales are being made, a post-effective amendment to this
registration statement:
II-2
<PAGE> 5
(i) To include any prospectus required by section
10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in this Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar
value of securities offered would not exceed that which was
registered) and any deviation from the low or high and of the
estimated maximum offering range may be reflected in the form
of a prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price
represent no more than a 20 percent change in the maximum
aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration
statement.
(iii) To include any material information with
respect to the plan of distribution not previously disclosed
in the registration statement or any material change to such
information in this Registration Statement;
Provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) of this
section do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic
reports filed by the registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act, that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 6
SIGNATURES
THE REGISTRANT. Pursuant to the requirements of the Securities Act of
1933, as amended, the Registrant certifies that it has reasonable grounds to
believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement or Amendment to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Houston, State of
Texas on the 24th day of September, 1998.
PRIME BANCSHARES, INC.
(Registrant)
By: /s/ E.J. GUZZO
-----------------------------------
President
POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and
appoints Fredric M. Saunders and E.J. Guzzo, with full power to each of them to
act without the other, the undersigned's true and lawful attorney-in-fact and
agent, with full power of substitution and resubstitution, for the undersigned
and in the undersigned's name, place and stead, in any and all capacities (until
revoked in writing), to sign this Registration Statement and any and all
amendments (including post-effective amendments) thereto, to file the same,
together with all exhibits thereto and documents in connection therewith, with
the Securities and Exchange Commission, to sign any and all applications,
registration statements, notices and other documents necessary or advisable to
comply with the applicable state securities authorities, granting unto said
attorney-in-fact and agent, or his or their substitute or substitutes, full
power and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises in order to effectuate the same
as fully to all intents and purposes as the undersigned might or could do if
personally present, thereby ratifying and confirming all that said
attorneys-in-fact and agents, or his or their substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement or Amendment has been signed by the following persons in
the capacities indicated on the 24th day of September, 1998.
<TABLE>
<CAPTION>
Signature Title
--------- -----
<S> <C>
/s/ FREDRIC M. SAUNDERS Chairman of the Board
- ------------------------ (Principal Executive Officer)
Fredric M. Saunders
/s/ E.J. GUZZO . President and Director
- ------------------------
E.J. Guzzo
/s/ L. ANDERSON CREEL Treasurer
- ------------------------ (Principal Financial Officer/ Principal Accounting Officer)
L. Anderson Creel
/s/ DAVID PASTERNAK Director
- ------------------------
David Pasternak
/s/ STUART D. SAUNDERS Director
- ------------------------
Stuart D. Saunders
/s/ JAMES B. WESLEY Director
- ------------------------
James B. Wesley
/s/ JERRY S. DOMINY Director
- ------------------------
Jerry S. Dominy
</TABLE>
II-4
<PAGE> 7
SIGNATURES
THE PLAN. Pursuant to the requirements of the Securities Act of 1933,
the Plan Administrator has duly caused this Registration Statement or Amendment
to be signed on its behalf by the undersigned, thereunto duly authorized in the
City of Houston, State of Texas on the 24th day of September, 1998.
PRIME BANK EMPLOYEES' 401(k) PROFIT
SHARING PLAN
PRIME BANK, as
Plan Administrator
By: /s/ E. J. GUZZO
-------------------------------
Name: E. J. Guzzo
-------------------------------
Title: President
------------------------------
II-5
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DESCRIPTION
-------------- -----------
<S> <C>
4.1 Amended and Restated Articles of Incorporation of the Company (incorporated
by reference from Exhibit 3.1 to the Company's Registration Statement on
Form S-1 Registration No. 333-33001).
4.2 Amended and Restated Bylaws of the Company (incorporated by reference from
Exhibit 3.2 to the Company's Registration Statement on Form S-1,
Registration No. 333-33001).
4.3* Prime Bank Employees' 401(k) Profit Sharing Plan.
23* Consent of Grant Thornton LLP.
24* Power of Attorney (included on page II-4).
</TABLE>
- -------------
*Filed herewith.
<PAGE> 1
EXHIBIT 4.3
FLEXIBLE NONSTANDARDIZED 401(k) ADOPTION AGREEMENT (#007)
<TABLE>
<S> <C>
I. EMPLOYER INFORMATION.
--------------------
A. Name: Prime Bank
---------------------------------------------------------------------------------------------------
B. Address: 3601 Eastex Freeway
------------------------------------------------------------------------------------------------
Houston, Texas 77226
------------------------------------------------------------------------------------------------
C. Taxable Year: 12/31
-------------------------------------------------------------------------------------------
D. EIN: 74-1295535
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II. PLAN INFORMATION.
----------------
A. Plan Name: Prime Bank Employees' 401(k) Profit Sharing Plan .
--------------------------------------------------------------------------------------
B. Plan Year: the period which ends on 12/31 .
-------------------------------------------------------------
C. Construction: Except as provided in Section 1.2, the Plan and the Trust Agreement will be subject
to the laws of the State of Texas .
---------------------------------------------------------------------------
D. Plan Adoption. The Plan is hereby adopted as [Check one. See Section 14.1.]
---
1. [ ] a new profit sharing plan (with cash or deferred arrangement).
2. [X] an amendment and restatement of the Channelview Bank Employees'
401(k) Profit Sharing Plan.
("Pre-Existing Plan") which was originally effective January 1, 1989.
E. Effective Date of this Adoption Agreement: January 1, 1997.
III. ELIGIBILITY AND PARTICIPATION.
A. Eligible Employees. All Employees of the Employer and all Employees of
the Participating Affiliates who satisfy the Participation Requirement
generally will be eligible to participate in the Plan except certain
nonresident aliens and: [Check one. See Section 2.19.]
1. [ ] STANDARD: no other exclusions.
2. [X] the following additional categories of
Employees: [The Plan must satisfy the nondiscrimination,
minimum coverage and minimum participation rules on a
continuing basis. See Section 2.19(b).] Security Guards
</TABLE>
<PAGE> 2
However, notwithstanding any contrary language, participation
in this Plan by Employees who are covered by a collective
bargaining agreement and the extent of such participation, if
any, will be determined by collective bargaining.
B. Participation Requirement. In order to participate in this
Plan, an Eligible Employee must [Check one. See Section
2.46, Section 4 and Part V.B.1. Enter "N/A" if there will be
no minimum age or no waiting period, as applicable.]
1. [ ] STANDARD: reach minimum age of 21 and
complete waiting period of 1 Year of Service.
2. [ ] no minimum age or waiting period.
3. [X] reach minimum age of 20 1/2 [not to exceed
21] and complete waiting period of 1/2
Year of Service [not to exceed 1].
4. [ ] reach minimum age of _______ [not to exceed
21] and complete waiting period of _______
Year of Service [not to exceed 1]; however,
each Employee who is an Eligible Employee on
the Effective Date will be deemed to satisfy
the Participation Requirement on the
Effective Date regardless of such Employee's
actual age or service.
C. Entry Date: [Check one. See Section 2.26 and Section 4.]
1. [X] STANDARD: the first day of each Plan Year
and the first day of the seventh month of
each Plan Year.
2. [ ] the date on which the Participant satisfies
the Participation Requirement.
3. [ ] other:______________________________________
___________ [Specify date(s). If a single
Entry Date is entered, the minimum age in
Part III.B cannot exceed 20-1/2 and the
maximum waiting period in Part III.B cannot
exceed 1/2 year.]
IV. VESTING.
A. Death, Disability or Retirement. [See Section 8.1(b).]
1. [X] STANDARD: A Participant's Employer Account
and Matching Account will be 100% vested if,
while an Employee, that Participant dies,
becomes Disabled, or reaches Normal
Retirement Age or, if applicable, Early
Retirement Age.
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<PAGE> 3
2. [ ] A Participant's Employer Account and Matching
Account will be 100% vested if, while an
Employee, that Participant reaches Normal
Retirement Age or if the Participant
satisfies the following condition: [Check
one or more only if desired.]
a. [ ] dies while an Employee
b. [ ] becomes Disabled while an Employee
c. [ ] reaches Early Retirement Age while
an Employee.
B. General Vesting Schedule. [See Section 8.1 and Section
14.3(c). Generally, the vesting schedule under this Plan must
be at least as favorable at the completion of each year as the
vesting schedule under the Pre-Existing Plan. The Top-Heavy
Vesting Schedule selected in Part XI.A will apply for all Plan
Years in which the Plan is a Top-Heavy Plan. See Section
12.4.]
1. Matching Account. [Check one. "Full and Immediate
Vesting" must be selected if the 2-year requirement
for Matching Contributions is selected in Part
VII.A.2.b.5.]
a. [X] STANDARD: Full and Immediate
Vesting. 100% at all times.
b. [ ] Cliff Vesting. 100% after
completion of ___ Years of Service
[not to exceed 5].
c. [ ] Graded Vesting.
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 1 ____%
1 ____%
2 ____%
3 ____% [at least 20%]
4 ____% [at least 40%]
5 ____% [at least 60%]
6 ____% [at least 80%]
7 or more 100%
</TABLE>
d. [ ] Top-Heavy. The Top-Heavy Vesting
Schedule in Part XI.A will apply for
all Plan Years.
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<PAGE> 4
2. Employer Account. [Check one. "Full and Immediate
Vesting" must be selected if the 2-year requirement
for Employer Contributions is selected in Part
VII.D.2.b.5.]
a. [ ] STANDARD: Full and Immediate
Vesting. 100% at all times.
b. [ ] Cliff Vesting. 100% after
completion of ___ Years of Service
[not to exceed 5].
c. [X] Graded Vesting.
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 1 0%
1 0%
2 20%
3 40% [at least 20%]
4 60% [at least 40%]
5 80% [at least 60%]
6 100% [at least 80%]
7 or more 100%
</TABLE>
d. [ ] Top-Heavy. The Top-Heavy Vesting
Schedule in Part XI.A will apply for
all Plan Years.
C. Normal Retirement Age: [Check one. See Section 2.43 and
Part XIII.B.]
1. [X] STANDARD: age 65
2. [ ] age ____ [not to exceed 65]
3. [ ] the later of age ____ [not to exceed 65] or
the ____ [not to exceed 5th] anniversary of
the date on which the Participant commenced
participation in the Plan.
D. Early Retirement Age: [The designation of an Early Retirement
Age may accelerate vesting and distribution. Early Retirement
Age cannot exceed Normal Retirement Age. Check one. See
Section 2.13 and Section 9.1.]
1. [ ] STANDARD: No Early Retirement Age.
2. [ ] age ____
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<PAGE> 5
3. [X] the later of age 55 or the completion of
10 Years of Service (vesting purposes).
V. SERVICE FOR PARTICIPATION AND VESTING.
A. Method for Crediting Service. [Check one. See Section 3.]
1. [X] STANDARD: "Hour of Service" method. [See
Section 3.1.]
a. Crediting Hours. Hours will be credited
during each Computation Period [Check one.
See Section 3.1(c).]
(1) [X] STANDARD: by maintaining
records of the actual hours
worked. [See Section
3.1(c)(2)(i).]
(2) [ ] by using the following
equivalency [Check one. See
Section 3.1(c)(2)(ii).]
[ ] 10 Hours of Service for each
day.
[ ] 45 Hours of Service for each
week.
[ ] 95 Hours of Service for each
semi-monthly payroll period.
[ ] 190 Hours of Service for
each month.
b. Vesting Computation Period. The Computation
Period for vesting purposes will be [Check
one. See Section 3.1(b)(2).]
(1) [X] STANDARD: the Plan Year
(2) [ ] the 12 month period
beginning on the
Participant's hire date and
each anniversary of that hire
date.
c. Participation Computation Period. The
initial Computation Period for participation
purposes will be the 12 month period
beginning the Participant's hire date. Each
subsequent Computation Period after the
initial 12 months of employment will be
[Check one. See Section 3.1(b)(3).]
(1) [X] STANDARD: Plan Years beginning
after the Participant hire date.
-5-
<PAGE> 6
(2) [ ] subsequent 12 month periods
beginning on the
anniversaries of the
Participant's hire date.
d. Year of Service for Vesting. For vesting
purposes, an Employee will be credited with a
Year of Service if, during a Computation
Period the Employee completes at least [Check
one. See Section 3.1(d).]
(1) [X] STANDARD: 1,000 Hours of
Service.
(2) [ ] _____ [not more than 1,000]
Hours of Service.
e. Year of Service for Participation. For
participation purposes, an Employee will be
credited with a Year of Service [Check one.
See Section 3.1(b)(3) and Section 3.1(d).]
(1) [ ] STANDARD: at the end of the
Computation Period in which
the Employee completes at
least 1,000 Hours of Service.
(2) [ ] on the date on which the
Employee completes at least
___ [not more than 1,000]
Hours of Service.
(3) [X] at the end of the
Computation Period on which
the Employee completes at
least 1 [not more than
1,000 Hours of Service.]
Notwithstanding the foregoing, if a partial
Year of Service is selected in Part III.B, no
minimum number of Hours of Service will be
required.
2. [ ] "Elapsed Time" method. [See Section 3.2.]
For purposes of determining whether a
Participant is entitled to an allocation of
contributions or forfeitures, the Participant
will be deemed to have completed more than
500 Hours of Service in a Plan Year if the
Participant completes the following period of
employment in the Plan Year: [Check one.
See Section 2.2(d) and Part VII.]
a. [ ] STANDARD: more than 91 consecutive
calendar days.
b. [ ] more than 3 consecutive months.
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<PAGE> 7
B. Special Rules.
1. Vesting Service Exclusions. [See Section 3.8.] In
addition to any service that is disregarded under the
Break in Service rules described below and in Section
3.7(c), the following service will be excluded for
vesting purposes:
a. [X] STANDARD: No other exclusions.
b. [ ] Years of Service before age 18.
c. [ ] Years of Service before the Employer
or an Affiliate maintained this Plan
or a predecessor plan.
d. [ ] Years of Service during a period for
which the Employee made no mandatory
contributions under a Pre-Existing
Plan.
2. Predecessor Employer Service (Vesting and
Participation). Generally, unless the Employer
maintains the plan of a predecessor employer (for
example, an acquired company), service for a
predecessor employer will not be credited as service
under this Plan. [Check and attach appropriate
addendum only if desired. See Section 3.4.]
[X] Service credit will be given under this Plan
for certain predecessor employers for
participation and/or vesting purposes to the
extent provided in Addendum V.B.2.
3. Break in Service Rules. [See Section 3.7 and
Section 8.2.] Generally, all service completed
before a Break in Service will be credited upon
reemployment. Certain service may be excluded under
the following rules:
a. [X] STANDARD: No exclusions. [See
Section 3.7(a).]
b. [ ] "One Year Hold Out Rule." [See
Section 3.7(b)(1).] This rule,
generally, requires rehired
Employees to complete a Year of
Service before prior vesting and
participation service is restored.
c. [ ] "Rule of Parity". [See Section
3.7(b)(3).] This rule, generally
disregards vesting and participation
service completed before 5
uninterrupted Breaks in Service.
d. [ ] "Alternative Maternity/Paternity
Rule." [Not applicable if "Elapsed
Time" is selected. See Section
3.7(b)(4).] This rule, generally,
increases the number of Breaks in
Service from 5
-7-
<PAGE> 8
to 6 for all Employees in lieu of
crediting service for
maternity/paternity leave.
e. [ ] Alternative to "Buy Back Rule".
[See Section 8.2(b).] This rule,
generally, does not require former
participants (less than 100% vested)
to pay back previous distributions
upon reemployment (vesting only). A
rehired Participant's vested
interest in restored amounts will be
determined under: [Check one. See
Section 8.2(a), Section 8.2(b) and
Section 8.2(c).]
(1) [ ] STANDARD: Formula A
(2) [ ] Formula B
VI. EMPLOYEE CONTRIBUTIONS.
A. Elective Deferrals. Elective Deferrals [See Section 5.3(f).
Check one.]
1. [X] STANDARD: will be allowed. [Complete formula
below; enter "N/A" if not applicable.]
a. Minimum Amount. Not less than 1% of a
Participant's Compensation or $ N/A.
b. Maximum Amount. For Plan Years ending on and
before _________, not more than N/A% of a
Participant's Compensation or $ N/A, and for
each Plan Year thereafter not more than N/A%
of a Participant's Compensation or $ N/A.
2. [ ] will not be allowed.
B. Employee Contributions. Employee Contributions [See Section
5.3(g). Check one.]
1. [X] STANDARD: will not be allowed.
2. [ ] will be allowed. [Complete formula below;
enter "N/A" if not applicable.]
a. Minimum Amount. Not less than _____% of a
Participant's Compensation or $_____.
b. Maximum Amount. For Plan Years ending on and
before ________, not more than _____% of a
Participant's Compensation or $_____,
-8-
<PAGE> 9
and for each Plan Year thereafter, not more than
_____% of a Participant's Compensation or $_____.
C. Election Rules. [Check one. See Section 5.3(h).]
1. [ ] STANDARD: If a Participant does not elect to
begin Elective Deferrals or Employee
Contributions on the Participant's Entry
Date, the Participant may elect to begin such
contributions as of any following pay date.
A Participant's election can be revised
(prospectively only) as of any pay date. A
Participant who terminates contributions may
elect to resume contributions prospectively
as of any pay date.
2. [X] Alternatives to Standard: A Participant's
elections may be made as follows: (Must
include at least one day in each calendar
year.)
a. [X] Commencement. [See Section
5.3(h)(2).] effective only as of any
1/1 4/1, 7/1, 10/1 following the
Participant's Entry Date.
b. [X] Revision. [See Section 5.3(h)(3).]
effective only as of any following
1/1, 4/1, 7/1, 10/1.
c. [X] Resumption. [See Section
5.3(h)(5).] effective only as of any
following 1/1, 4/1, 7/1, 10/1.
D. Rollover Contributions. Rollover contributions [Check one. See
Section 5.5.]
1. [X] STANDARD: will be allowed and may be made by
[Check one.]
a. [X] STANDARD: any Eligible Employee.
b. [ ] any Eligible Employee who is a
Participant.
2. [ ] will not be allowed.
E. Limitations on Elective Deferrals.
1. Claims. Claims for a refund of Excess Elective
Deferrals must be made no later than [See Section
7.3(f). Check one.]
a. [X] STANDARD: March 1.
b. [ ] ____________ [no earlier than March
1 and no later than April 15.]
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<PAGE> 10
2. Deemed Claims. Corrections of Excess Elective
Deferrals will be made [See Section 7.3(f)(2).
Check one.]
a. [X] STANDARD: from this Plan.
b. [ ] from the following plan(s):
________________.
3. "Gap Period" Income. The income or loss allocable to
the "gap period" [Check one. See Section 7.3(e),
Section 7.4(d)(2) and Section 7.5(d)(2).]
a. [X] STANDARD: shall not be distributed.
b. [ ] shall be distributed.
4. Highly Compensated Employees. The following special
rules in the temporary Code Section 414(q)
regulations and in Code Section 414(q)(12) will
apply: [Check one. See Section 7.4(a)(5)(v).]
a. [X] STANDARD: no special rules.
b. [ ] The special rules set forth in
Addendum V.E.3.
5. Recharacterization. Recharacterization of Excess
Contributions as Employee Contributions [See Section
7.4(e). Check one.]
a. [X] STANDARD: will not be allowed.
b. [ ] [Do not check this option 2 if
Employee Contributions are not
allowed in Part VI.B.] will be
allowed.
VII. EMPLOYER CONTRIBUTIONS.
A. Matching Contributions. [See Section 5.3(b) and Part VII.F.]
1. Formula. [Check one.]
a. [ ] STANDARD: No Matching Contributions
will be made.
b. [X] Matching Contributions will be made
on account of: [Check one or both.]
[X] Elective Deferrals
[ ] Employee Contributions
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<PAGE> 11
under the following formula: [Check and
complete one. Enter "N/A" if not
applicable. The formula specified and
completed must not provide a higher rate
of Matching Contributions for
Participants who make a higher amount of
contributions.]
[ ] _____% of the Participant's
contributions which do not
exceed $_____ or _____% of
the Participant's
Compensation plus _____% of
the Participant's
contributions which exceed
$_____ or _____%, but
contributions in excess of
$_____ or _____% of the
Participant's Compensation
will not be matched.
[ ] such percentage of the
Participant's contributions
as determined by the Employer
in its discretion for each
Plan Year.
[X] in an amount equal to 25% of
the first 6% deferred.
2. Eligible Participant. The Matching Contribution for
any Allocation Date will be made only for each
Participant who makes Elective Deferrals or Employee
Contributions, as applicable, during the period ending
on the Allocation Date and who satisfies all of the
following requirements: [Check one.]
a. [X] STANDARD: no additional
requirements.
b. [ ] Alternative: [Check one or more.]
(1) [ ] the Participant is employed
(or on an authorized leave of
absence) on the Allocation
Date.
(2) [ ] the Participant is credited
with at least 1,000 Hours of
Service in the Plan Year
ending on such Allocation
Date [Do not check if
"Elapsed Time" is selected or
Allocation Date is not
Standard Option.]
(3) [ ] the Participant is a
Nonhighly Compensated
Employee.
(4) [ ] the Participant is not
employed as of the last day
of the Plan Year but is
credited with more than 500
Hours of Service in the Plan
Year. [Do not check if
Allocation Date is not
Standard Option. Special
Hour of Service equivalencies
apply if "Elapsed Time" is
selected. See Part V.A.2.]
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<PAGE> 12
(5) [ ] the Participant is credited
with at least 2 Years of
Service (for participation
purposes) on such Allocation
Date.
(6) [ ] notwithstanding anything to
the contrary in clause (1),
(2) or (4) of this Part
VII.A.2.b., a Participant who
died, retired or became
disabled during the period
ending on the Allocation Date
will be eligible [Check
one.]
[ ] without regard to the
number of Hours of
Service.
[ ] only if he completes
the Hours of Service
specified in clause (2)
or (4), as applicable.
[Do not check if
Allocation Date is not
Standard Option.]
3. Allocation Date. Matching Contributions will be made
and allocated as of [Check one.]
a. [ ] STANDARD: the last day of each Plan
Year.
b. [X] each pay period.
4. Forfeitures. Forfeitures attributable to Matching
Accounts [Check one. See Section 6.3(c)(2)(ii).]
a. [X] STANDARD: will be applied to reduce
Matching Contributions as of the
Allocation Date: [Check one. See
Section 8.2(e).]
(1) [X] STANDARD: which immediately
follows the date the
Forfeiture occurs.
(2) [ ] which immediately follows
the last day of the Plan Year
in which the Forfeiture
occurs.
b. [ ] will be reallocated to Active
Participants as of the last day of
each Plan Year. [Complete Part
VII.D.2. to specify who is an Active
Participant for this purpose.]
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<PAGE> 13
c. [ ] will be allocated in accordance with
the formula set forth in Addendum
VII.A.4.c. [The addendum should
describe Allocation Date, eligible
Participants and allocation
formula.]
B. Qualified Matching Contributions. [See Section 5.3(c) and
Part VII.F.]
1. Formula. [Check one.]
a. [ ] STANDARD: No Qualified Matching
Contributions will be made.
b. [X] Qualified Matching Contributions
will be made on account of: [Check
one or both.]
[X] Elective Deferrals
[ ] Employee Contributions
under the following formula: [Check
and complete one. Enter "N/A" if
not applicable. The formula
specified and completed must not
provide a higher rate of Qualified
Matching Contributions for
Participants who make a higher
amount of contributions.]
[ ] _____% of the Participant's
contributions which do not
exceed $_____ or _____% of
the Participant's
Compensation plus _____% of
the Participant's
contributions which exceed
$_____ or _____%, but
contributions in excess of
$_____ or _____% of the
Participant's Compensation
will not be matched.
[X] such percentage of the
Participant's contributions
as determined by the Employer
in its discretion for each
Plan Year.
[ ] in an amount equal to
_________________________.
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<PAGE> 14
2. Eligible Participant. The Qualified Matching
Contribution for any Allocation Date will be made
only for each Participant who makes Elective
Deferrals or Employee Contributions, as applicable,
during the period ending on the Allocation Date and
who satisfies all of the following requirements:
[Check one.]
a. [ ] STANDARD: no additional
requirements.
b. [X] Alternative: [Check one or more.]
(1) [ ] the Participant is employed
(or on an authorized leave of
absence) on the Allocation
Date.
(2) [ ] the Participant is credited
with at least 1,000 hours of
Service in the Plan Year
ending on such Allocation
Date. [Do not check if
"Elapsed Time" is selected or
Allocation Date is not
Standard Option.]
(3) [X] the Participant is a
Nonhighly Compensated
Employee.
(4) [ ] the Participant is not
employed as of the last day
of the Plan Year but is
credited with more than 500
Hours of Service in the Plan
Year. [Do not check if
Allocation Date is not
Standard Option. Special
Hour of Service equivalencies
apply if "Elapsed Time" is
selected. See Part V.A.2.]
(5) [ ] the Participant is credited
with at least 2 Years of
Service (for participation
purposes) on such Allocation
Date.
(6) [ ] notwithstanding anything to
the contrary in clause (1),
(2) or (4) of this Part
VII.B.2.b, a Participant who
died, retired or became
disabled during the period
ending on the Allocation Date
will be eligible [Check one.]
[ ] without regard to the
number of Hours of
Service.
[ ] only if he completes
the Hours of Service
specified in clause (2)
or (4), as applicable.
[Do not check if
Allocation Date is not
Standard Option.]
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<PAGE> 15
3. Allocation Date. Qualified Matching Contributions
will be made and allocated as of [Check one.]
a. [ ] STANDARD: the last day of each Plan
Year.
b. [X] each pay period.
C. Qualified Nonelective Contributions. [See Section 5.3(d) and
Part VII.F.]
1. Formula. In addition to the Qualified Nonelective
Contributions which may be made for Nonhighly
Compensated Employees to satisfy the ADP or ACP
limits, [Check one.]
a. [X] STANDARD: no additional Qualified
Nonelective Contributions will be
made.
b. [ ] additional Qualified Nonelective
Contributions will be made in an
amount equal to______________________
_____________________________________
_____________________________________
2. Eligible Participant. The Additional Qualified
Nonelective Contribution described in this Part VII.C
for any Allocation Date will be made only for each
Participant who is an Eligible Employee at any time
during the period ending on the Allocation Date and
who satisfies all of the following requirements:
[Check one.]
a. [ ] STANDARD: no additional
requirements.
b. [ ] Alternative: [Check one or more.]
(1) [ ] the Participant is employed
(or on an authorized leave of
absence) on the Allocation
Date.
(2) [ ] the Participant is credited
with at least 1,000 Hours of
Service in the Plan Year
ending on such Allocation
Date. [Do not check if
"Elapsed Time" is selected or
Allocation Date is not
Standard Option.]
(3) [ ] the Participant is a
Nonhighly Compensated
Employee.
(4) [ ] the Participant is not
employed as of the last day
of the Plan Year but is
credited with more than 500
Hours of Service in the Plan
Year. [Do not check if
Allocation Date is not
Standard Option. Special
Hour
-15-
<PAGE> 16
of Service equivalencies
apply if "Elapsed Time" is
selected. See Part V.A.2.]
(5) [ ] the Participant is credited
with at least 2 Years of
Service (for participation
purposes) on such Allocation
Date.
(6) [ ] notwithstanding anything to
the contrary in clause (1),
(2) or (4) of this Part
VII.C.2.b., a Participant who
died, retired or became
disabled during the period
ending on the Allocation Date
will be eligible [Check
one.]
[ ] regard to the number of
Hours of Service.
[ ] only if he completes
the Hours of Service
specified in clause (2)
or (4), as applicable.
[Do not check if
Allocation Date is not
Standard Option.]
3. Allocation Date. The Qualified Nonelective
Contributions described in this Part VII.C will be
made and allocated as of [Check one.]
a. [ ] STANDARD: the last day of each Plan
Year.
b. [ ] each________________________________.
D. Discretionary Employer Contributions.
1. Allocation Formula. The discretionary Employer
Contributions will be allocated among Active
Participants as follows: [Check one. See Section
5.3(e), Section 6.3(a), Section 6.3(c)(4) and Part
VII.F. Do not select an integrated formula for Plan
Years beginning on and after the Final Compliance
Date if the Employer also maintains another
integrated plan for such Plan Year.]
a. [X] STANDARD: Nonintegrated. [See
Section 6.3(a)(1) and Section
6.3(c)(4)(i)(A).]
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<PAGE> 17
b. Integrated. [See Section 6.3(a)(2), Section
6.3(c)(4)(i)(B) and Section 12.3(h).]
(1) Integration Percentage. [Check one.
If the Integration Level is less
than the Taxable Wage Base, the
Maximum Disparity Rate must be
reduced. See Section 2.39.]
[ ] STANDARD: the Maximum
Disparity Rate.
[ ] ____% [not to exceed the
Maximum Disparity Rate.]
(2) Integration Level. [Check one. See
Section 2.35.]
[ ] STANDARD: the Taxable Wage
Base.
[ ] $______ or ___% of the
Taxable Wage Base [not to
exceed the Taxable Wage
Base.]
2. Active Participant. The discretionary Employer
Contributions and Forfeitures, if applicable, will
only be allocated to: [Check one. See Section 2.2,
Section 5.3(e) and Part VII.E.]
a. [X] STANDARD: each Participant who is
an Eligible Employee at any time
during the Plan Year and (1) who is
employed (or on an authorized leave
of absence) on the last day of the
Plan Year and (if the "Hours of
Service" method is selected) who is
credited with more than 1,000 Hours
of Service during the Plan Year or
(2) who terminated employment during
the Plan Year due to death,
disability or retirement.
b. [ ] Alternatives to standard: [Check
one or more.]
(1) [ ] The last day employment
requirement will not apply.
(2) [ ] The 1,000 hours requirement
will not apply.
(3) [ ] The exceptions for death,
disability and retirement
will not apply.
(4) [ ] Each Participant who is not
employed on the last day of
the Plan Year but is credited
with more than 500 Hours of
Service during the Plan Year
will be an Active
Participant. [Special
equivalencies apply if
"Elapsed Time" is selected.
See Part V.A.2.]
-17-
<PAGE> 18
(5) [ ] The Participant must also be
credited with at least 2
Years of Service on the last
day of the Plan Year.
3. Forfeitures. Forfeitures attributable to Employer
Accounts [Check one. See Section 5.3(i) and
Section 6.3(c)(4)(ii).]
a. [X] STANDARD: will be reallocated to
Active Participants as of the last
day of each Plan Year in the same
manner as Employer Contributions.
b. [ ] will be applied to reduce Matching
Contributions, Qualified Matching
Contributions and/or Qualified
Nonelective Contributions.
c. [ ] will be allocated in accordance with
the formula set forth in Addendum
VII.D.3.c. [The addendum should
describe Allocation Date, eligible
Participants and allocation
formula.]
E. Net Profits.
1. General. [Check one. See Section 5.3(a).]
a. [ ] STANDARD: All Employer
contributions other than Elective
Deferrals will be made out of Net
Profits.
b. [X] Alternatives to Standard: In
addition to Elective Deferrals, the
following contributions will be made
without regard to Net Profits:
[Check one or more.]
(1) [X] Matching Contributions
(2) [X] Qualified Matching
Contributions
(3) [ ] Qualified Nonelective
Contributions
(4) [X] Discretionary Employer
Contributions
2. Definition. For this purpose, Net Profits will be as
defined [Check one. See Section 2.41.]
a. [X] STANDARD: in Section 2.41(a).
b. [ ] in the attached Addendum VII.E.2.
F. Minimum Allocations. Each Active Participant (determined
without regard to the Participant's completed Hours of Service)
who is not a Key Employee, generally, will
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<PAGE> 19
receive the minimum top-heavy allocation if the Plan
is top-heavy. [See Section 6.3(e) and Section 12.]
Requiring a Participant to complete a minimum number
of hours or to be employed on the last day of a
period may result in a failure to satisfy the
nondiscrimination rules, minimum coverage rules and
minimum participation rules. [See Section 2.2 and
Section 2.19.]
VIII. COMPENSATION. Compensation for any Plan Year generally means total
compensation (not to exceed $200,000 indexed for inflation after 1989)
actually paid to a Participant during such Plan Year (unless another
determination period is selected). [See Section 2.10.]
A. Basic Definition: Total compensation means: [Check one. See
Section 2.10(a).]
1. [ ] STANDARD: wages, tips and other compensation
reportable on Form W-2. [See Section
2.10(a)(1).]
2. [ ] wages subject to federal income tax
withholding. [See Section 2.10(a)(2)(i).]
3. [ ] general Code Section 415 compensation. [See
Section 2.10(a)(2)(ii) and Section
7.2(a)(2)(ii)(B).]
4. [X] regular or base salary or wages, including
[This option may not be selected if the
integrated formula is selected in Part
VII.D.1.b. Check one or more only if
desired.]
a. [X] overtime
b. [ ] bonuses
c. [X] commissions
d. [ ] other: _____________
Reimbursements or other expense allowances, fringe benefits
(cash and noncash) moving expenses, deferred compensation and
welfare benefits (even if includible in gross income): [Check
one. See Section 2.10(a)(2)(iv).]
[X] STANDARD: will
[ ] will not
be included in Compensation as determined in accordance with
the definition selected above.
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<PAGE> 20
B. Determination Period: [Check one. See Section
2.10(d).]
1. [X] STANDARD: the Plan Year.
2. [ ] the calendar year ending in the Plan
Year.
3. [ ] a period beginning each ___________
[Enter the day and month the period
begins. The determination period
must end with or within the Plan
Year, must be at least 12 consecutive
months in duration and must apply
uniformly to all Employees in the
Plan.]
C. Salary Reductions. Participant salary reduction
contributions (for example, Section 401(k) or flexible
benefit plan contributions) [Check one. See Section
2.10(f).]
1. [X] STANDARD: will
2. [ ] will not
be included in total compensation.
D. Special Rules. [Complete only if desired. See Section
2.10(g).]
1. [X] Compensation for periods ending before the Entry
Date on which an Eligible Employee becomes a
Participant will be excluded. [See Section
2.10(g)(1).]
2. [ ] If this is an amendment to a Pre-Existing Plan,
the definition of Compensation will be effective
as of _____________ [No later than the first day
of the first Plan Year after this Plan is
adopted. See Section 2.10(g)(2). The definition
in the Pre-Existing Plan will continue to apply
until that date.]
3. [ ] Compensation for any Plan Year in excess of
$______ will be excluded [See Section
2.10(g)(3).]
4. [ ] The following shall be excluded when determining
Compensation of Highly Compensated
Employee:______________________. [See Section
2.10(g)(4).]
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<PAGE> 21
IX. DISTRIBUTIONS.
A. Timing. Vested Plan benefits, generally, will be distributed
as follows: [Check one. See Section 9.1(a).]
1. [X] STANDARD: as soon as practical after the
Participant separates from service subject to
the Participant's consent, if required.
2. [ ] no earlier than the Participant's Normal
Retirement Age, Early Retirement Age or
Disability, whichever is earlier.
B. Elections to Defer. A Participant whose Account is more than
$3500 may elect that distribution of vested Plan benefits be
deferred until: [Check one. See Section 9.1(e).]
1. [ ] STANDARD: the Participant's Required
Beginning Date (generally age 70 1/2).
2. [X] the later of the Participant's Normal
Retirement Age or age 62.
C. In-Service Distributions. [See Section 9.2(b).]
1. Elective Deferral Accounts. In-service distributions
from Elective Deferral Accounts will be allowed as
follows: [Check applicable box(es).]
a. [ ] STANDARD: no distributions before
separation from service.
b. [X] on or after age 59 1/2. [See
Section 9.2(b)(4).]
c. [X] for the following financial
hardship(s): [See Section
9.2(b)(3). Check one or more.]
(1) [X] medical expenses [See
Section 9.2(b)(3)(ii)(A).]
(2) [X] purchase of principal
residence [See Section
9.2(b)(3)(ii)(B).]
(3) [X] tuition [See Section
9.2(b)(3)(ii)(C).]
(4) [X] foreclosure or eviction [See
Section 9.2(b)(3)(ii)(D).]
(5) [X] other IRS "deemed" financial
hardship [See Section
9.2(b)(3)(ii)(E).]
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<PAGE> 22
2. Matching Accounts. In-service distributions from
Matching Accounts will be allowed as follows: [Check
applicable box(es).]
a. [ ] STANDARD: no distributions before
separation from service.
b. [X] on or after age 59 1/2.
c. [ ] after the __________ anniversary of
Plan participation.
d. [ ] for a financial hardship under the
safe harbor tests. [See Section
9.2(b)(3).]
e. [ ] in accordance with the rules set
forth in Addendum IX.C.2. [See
Section 9.2(b)(5). The addendum
should describe nondiscriminatory
objective standards for an
in-service distribution after a
fixed number of years or upon the
prior occurrence of some event such
as layoff, illness or hardship.]
3. Employer Accounts. In-service distributions from
Employer Accounts will be allowed as follows: [Check
applicable box(es).]
a. [ ] STANDARD: no distributions before
separation from service.
b. [X] on or after age 59 1/2.
c. [ ] after the __________ anniversary of
Plan participation.
d. [ ] for a financial hardship under the
safe harbor tests. [See Section
9.2(b)(3).]
e. [ ] in accordance with the rules set
forth in Addendum IX.C.3. [See
Section 9.2(b)(5). The addendum
should describe nondiscriminatory
objective standards for an
in-service distribution after a
fixed number of years or upon the
prior occurrence of some event such
as layoff, illness or hardship.]
4. Qualified Nonelective and Qualified Matching
Accounts. In-service distributions from Qualified
Nonelective and Qualified Matching Accounts will be
allowed as follows: [Check applicable box(es).]
a. [ ] STANDARD: no distributions before
separation from service.
b. [X] on or after age 59 1/2.
c. [ ] for financial hardship (pre-89
amounts only). [See Section
9.2(b)(3).]
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<PAGE> 23
5. Employee Accounts. Withdrawals from Employee Accounts
[See Section 9.2(d). Check one.]
a. [ ] STANDARD: will be allowed.
b. [X] will not be allowed.
D. Joint and Survivor Annuity Rules. [Check one. See Section
10.]
1. [ ] STANDARD: The entire vested balance will be
paid (a) to married Participants as a 50%
joint and survivor annuity, (b) to single
Participants as a 100% life annuity and (c)
to the surviving Spouse of a married
Participant who dies before retirement as a
100% preretirement survivor annuity.
2. [ ] The entire vested balance will be paid under
the standard joint and survivor annuity rules
except the percentages will be: [Percentages
must be not less than 50% nor more than
100%.]
a. Qualified Joint and Survivor Annuity: ____%
[See Section 10.1(f).]
b. Qualified Preretirement Survivor Annuity:
____% [See Section 10.1(g).]
3. [X] The standard joint and survivor annuity rules
will not apply. [Check only if the safe
harbor rule described in Section 10.5 will
be satisfied. This option generally is not
available if this Plan or a Pre-Existing Plan
provides annuities and separate accounts are
not maintained for such pre-Existing Plan
balances. Under this option, the entire
vested balance eligible for the safe harbor
will be paid to the surviving Spouse of a
married Participant who dies before
retirement. See Section 10.5.]
E. Optional Distribution Forms. [See Section 10.6(c).] In
addition to single sum distributions in cash, Participants may
also request:
1. [X] Installments [See Section 10.6(c)(2)(ii).]
2. [ ] Annuity contracts [See Section
10.6(c)(2)(iii).]
3. [ ] The optional forms or in kind distributions
offered under a Pre-Existing Plan as
described in Addendum XIII.A.
4. [ ] Single sum distributions in kind [See
Section 10.6(e).]
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<PAGE> 24
X. INVESTMENT PROVISIONS.
A. Individually Directed Investments. An individual's direction
of the investment of that individual's Account [Check one.
See Section 13.2.]
1. [ ] STANDARD: will not be allowed
2. [X] will be allowed and will apply: [Check one.]
a. [X] STANDARD: to the entire Account
b. [ ] only to the following:_______________
B. Participant Loans. Participant loans [Check one. See Section
13.3.]
1. [ ] STANDARD: will not be allowed.
2. [X] will be allowed.
a. Accounting. Loans will be treated as an
asset of [See Section 13.3(e). Check one.]
(1) [X] STANDARD: the Participant's
Account.
(2) [ ] the Fund.
b. Amounts. The $10,000 exception for loans in
excess of 50% of Account value [Check one.
See Section 13.3(f)(2).]
(1) [X] STANDARD: shall not apply.
(2) [ ] shall apply. [Note: Loans
under this exception must be
secured by collateral in
addition to the Participant's
vested Account.]
C. Insurance. A Participant's direction to purchase insurance
contracts [Check one. See Section 13.1.]
1. [X] STANDARD: will not be allowed.
2. [ ] will be allowed.
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<PAGE> 25
XI. TOP-HEAVY RULES. [See Section 12.]
A. Top-Heavy Vesting Schedule. The vesting schedule for any Plan
Year in which this Plan is a Top-Heavy Plan will be: [Check
one. See Section 12.4.]
1. [ ] STANDARD: Full and Immediate. 100% of all
times.
2. [ ] Cliff. 100% after completion of ____ Years
of Service [not to exceed 3].
3. [X] Graded.
<TABLE>
<CAPTION>
Years of Service Nonforfeitable Percentage
---------------- -------------------------
<S> <C>
Less than 1 0 %
1 0 %
2 20 % [at least 20%]
3 40 % [at least 40%]
4 60 % [at least 60%]
5 80 % [at least 80%]
6 or more 100%
</TABLE>
B. Other Plans. [Complete only if the Employer maintains or has
ever maintained another Plan.]
1. Minimum Allocation. The minimum top-heavy
contributions or benefit, if any, will be made under
[Check one. See Section 12.3(d) and (g).]
a. [ ] STANDARD: this Plan.
b. [ ] the following plan(s):
____________________.
2. Present value. [See Section 12.2(f)(3)(iii).
Complete only if Employer maintains a defined benefit
plan.] "Present value" will be determined using an
interest rate of ____% and the following mortality
table: ____________________.
3. Valuation Date. The Top-Heavy Valuation Date for
each other plan will be: [See Section 12.2(g). Check
one.]
a. [ ] STANDARD: the most recent valuation
date.
b. [ ] Other: ____________________.
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<PAGE> 26
XII. LIMITATIONS ON ALLOCATIONS (CODE Section 415). [See Section 7.2.]
A. Compensation. For Code Section 415 purposes, Compensation
means: [Check one. See Section 7.2(a)(2).]
1. [X] STANDARD: wages, tips and other compensation
reportable on Form W-2. [See Section
7.2(a)(2)(i).]
2. [ ] wages subject to federal income tax
withholding. [See Section 7.2(a)(2)(ii)(A)
and Section 2.10(a)(2)(i).]
3. [ ] general Code Section 415 compensation. [See
Section 7.2(a)(2)(ii)(B).]
B. Limitation Year. The Limitation Year will be: [Check one.
See Section 7.2(a)(9).]
1. [X] STANDARD: the Plan Year.
2. [ ] the 12 consecutive month period which ends on
each ____________________.
C. Other Plans. [Complete only if the Employer maintains or has
ever maintained another plan.]
1. Other Defined Contribution Plan. The Annual
Additions attributable to this Plan will be
determined: [Check one. See Section 7.2(d).]
a. [ ] STANDARD: by treating the other
plan as a Master or Prototype Plan.
b. [ ] by using the method described in
Addendum XII.C.1.b.
2. Defined Benefit Plan. [Check and attach appropriate
addendum only if applicable. See Section 7.2(a)(3),
Section 7.2(a)(11), Section 7.2(e) and Section
12.3(g).]
[ ] The Annual Additions attributable to this
Plan will be limited by using the method
described in Addendum XII. C.2.
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<PAGE> 27
XIII. SPECIAL PROVISIONS FOR AMENDMENT AND RESTATEMENT OF PRE-EXISTING PLAN,
MERGERS OR TRANSFERS.
A. Vesting or Distribution Rules. [Check and attach appropriate
description only if applicable. See Section 10.6, Section
14.1(b) and Section 14.5.]
[X] The special vesting or distribution rules which must
be preserved under Code Section 411 are described in
Addendum XIII.A.
B. Normal Retirement Age. [check only if the normal retirement
age under the Pre-Existing Plan was determined with reference
to the participation commencement date and the special
transitional rule in Section 2.43 is desired. See Section
2.43.]
[ ] The Normal Retirement Age of a Participant who
commenced participation in the Pre-Existing Plan in a
Plan Year beginning before 1988 will be determined
under the transitional rule described in Section
2.43.
C. Effective Dates. [Check and attach appropriate addendum only
if any of the selections made in this Adoption Agreement will
become effective as of a date other than the Effective Date
set forth in Part II.E. However, the addendum shall in no
event delay the effective date of any Plan provisions beyond
the latest effective date required for such provision under
TRA 86 or other applicable law or regulations.]
[ ] Certain elections in this Adoption Agreement shall be
effective as of the date(s) specified in Addendum
XIII.C.
XIV. TRUSTEE APPOINTMENT AND TRUST AGREEMENT. [Check one. See Section
2.66 and Section 2.68.]
A. [X] Standard Trust Agreement. The standard Trust
Agreement will apply and the Trustee will be the
following individual(s), bank(s) or other person(s)
who can serve as a fiduciary and trustee under the
laws of the State shown in Part II.C.
Smith Barney Corporate Trust Company
F.M. Saunders
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<PAGE> 28
[If Smith Barney Shearson Trust Company ("SBSTC") is the
Trustee, SBSTC will charge a fee and may require the Employer
to complete other documents prior to accepting its appointment
as Trustee. Further, SBSTC will act only as a
nondiscretionary Trustee and the investment of the Fund will
be made as directed by the Plan Administrator or the Employer.
See Section 15 and the Trust Agreement.]
B. [ ] Alternate Trust Agreement. The alternate Trust
Agreement for 401(k) Plans will apply and the Trustee
will be ____________________, which is a bank or
trust company organized under the laws of the State
of __________ and which is authorized to serve as a
fiduciary and trustee under the laws of such State.
[The Trustee will charge a fee and will require the Employer
to complete other documents, including execution of the
alternate Trust Agreement, prior to accepting its appointment
as Trustee. Except as described in the Trust Agreement, the
Trustee will act only as a nondiscretionary Trustee and will
be subject to the directions of the Plan Administrator as a
named fiduciary under the Plan in the control and management
of the assets of the Fund. Such directions will be
communicated to the Trustee by the Recordkeeper as described
in the Trust Agreement.]
XV. IRS APPROVAL.
This Plan is a "nonstandardized" plan and an adopting Employer may not rely on
the opinion letter issued to the Prototype Sponsor by the National Office of
the Internal Revenue Service as evidence that this Plan is qualified under Code
Section 401.
Any Employer who wishes to obtain reliance that this Plan as adopted by the
Employer is qualified must apply to the appropriate Key District Office for a
favorable determination letter on this Plan.
Smith Barney Shearson will notify each adopting Employer of any amendments that
have been made to the Plan by Smith Barney Shearson as Prototype Sponsor or of
any intention to discontinue or abandon its sponsorship of the Plan as a
prototype plan.
-28-
<PAGE> 29
S I G N A T U R E S
IMPORTANT:
In order to have a valid plan and trust, this Adoption Agreement must
be signed by individuals authorized to sign for the Employer and, if
applicable, the Trustee and each Participating Affiliate. If the
alternate Trust Agreement is specified in Part XIV.B, the Trust
Agreement must be signed by the Employer, the Trustee and, if
applicable, each Participating Affiliate.
This Adoption Agreement will not become effective as a prototype plan
unless and until it is accepted by Smith Barney Shearson as the
Prototype Sponsor but, upon such acceptance, will be effective as a
prototype plan retroactive to the Effective Date.
An Affiliate (i.e., a member of a controlled group of corporations,
commonly controlled group of trades or businesses, or an affiliated
service group within the meaning of Code Section 414) may adopt this
Plan as a Participating Affiliate.
EMPLOYER REPRESENTATIONS. The undersigned hereby certifies that the adoption
of the Plan and the Trust Agreement is authorized by (1) a Board of Directors'
resolution for an Employer which is a corporation, or (2) a written
authorization by the person or persons duly authorized to act on behalf of an
Employer which is not a corporation. If this Adoption Agreement amends and
restates a Pre-Existing Plan, the undersigned hereby certifies that such
amendment is duly authorized by the Employer. The undersigned hereby
acknowledges that the Prototype Sponsor (1) is not responsible for the
elections made in this Adoption Agreement, (2) shall have no responsibility
whatsoever with respect to the Fund or the operation and administration of this
Plan, and (3) has advised the Employer to consult with legal counsel for the
Employer regarding the adoption and operation of this Plan. The undersigned
further acknowledges that the Employer is solely responsible for the elections
made in this Adoption Agreement and for the operation and administration of
this Plan. Finally, the undersigned acknowledges that the Prototype Sponsor
will charge an annual prototype maintenance fee and hereby authorizes the
Prototype Sponsor to charge such fees against any brokerage account maintained
for the Plan.
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<PAGE> 30
EMPLOYER EXECUTION. Subject to the terms and conditions of the Plan, the Trust
Agreement and this Adoption Agreement, the undersigned hereby has executed this
Adoption Agreement to evidence its adoption (or, if applicable, amendment) of
the Plan and the Trust Agreement.
Signature: ________________________________________________________________
Title:__________________________________________ Date: __________________
TRUSTEE EXECUTION. Subject to the terms and conditions of the Plan, the Trust
Agreement and this Adoption Agreement, the undersigned hereby accepts its
appointment as Trustee and has executed this Adoption Agreement to evidence its
adoption of the Trust Agreement. [Attach additional signature pages if there
are more than three Trustees. If the alternate Trust Agreement is specified in
Part XIV.B, the Trustee should execute the alternate Trust Agreement in lieu of
executing the Adoption Agreement in this section.]
Signature: ________________________________________ Date:__________________
Signature: ________________________________________ Date:__________________
Signature: ________________________________________ Date:__________________
PARTICIPATING AFFILIATES EXECUTION. [Attach additional signature pages if
there are more than three Participating Affiliates. An Affiliate which adopts
this Plan after this Adoption Agreement is executed should evidence its
adoption of this Plan by executing and attaching to this Adoption Agreement a
signature page which includes the information set forth below.]
Subject to the terms and conditions of the Plan, the Trust Agreement and this
Adoption Agreement, the undersigned hereby has executed this Adoption Agreement
to evidence its adoption (or, if applicable, amendment) of the Plan and the
Trust Agreement.
AFFILIATE NAME:______________________________________________________________
Signature: ______________________________________ Date:___________________
Effective Date of Adoption of Plan by Affiliate (if different from the
Effective Date in Part II.E.):_____________________________________
AFFILIATE NAME:______________________________________________________________
-30-
<PAGE> 31
Signature: ______________________________________ Date:___________________
Effective Date of Adoption of Plan by Affiliate (if different from the
Effective Date in Part II.E.): ______________________________________________
AFFILIATE NAME:______________________________________________________________
Signature: ______________________________________ Date:___________________
Effective Date of Adoption of Plan by Affiliate (if different from the
Effective Date in Part II.E.):
_____________________________________
PROTOTYPE SPONSOR ACCEPTANCE. Subject to the terms and conditions of the Plan,
the Trust Agreement and this Adoption Agreement, this Adoption Agreement is
accepted by the Prototype Sponsor.
Authorized Signature:_____________________________ Date:___________________
-31-
<PAGE> 32
INTERNAL REVENUE SERVICE DEPARTMENT OF THE TREASURY
Plan Description: Prototype Non-standardized Profit Sharing Plan with COOA
FFW: 50370630005-007 Case 9307147 EIN: 13-1912900
SPD: CS Plan: 007 Letter Serial No. 0371035a
Washington, DC 20224
SMITH BARNEY SHEARSON INC Person to Contact: Mr. Dua
RETIREMENT PLAN SERVICES 37TH FLOOR Telephone Number: (202) 622-8380
388 GREENWICH STREET
NEW YORK, NY 10013 Refer Reply to: E:EP:Q:3
Date: 08/02/93
Dear Applicant:
In our opinion, the form of the plan identified above is acceptable under
section 401 of the Internal Revenue Code --------by employers for the benefit
of their employees. This opinion relates only to the acceptability of the form
of --------- under the Internal Revenue Code. It is not an opinion of the
effect of other Federal or local statutes.
You must furnish a copy of this letter to each employer who adopts this plan.
You are also required to send a copy approved form of the plan, any approved
amendments and related documents to each Key District Director of Internal
Revenue Service in whose jurisdiction there are adopting employers.
Our opinion on the acceptability of the form of the plan is not a ruling or
determination as to whether an employer qualifies under Code section 401(a).
Therefore, an employer adopting the form of the plan should apply for a
determination letter by filing an application with the Key District Director of
Internal Revenue Service on Form 5307, Short Form, application for
Determination for Employee Benefit Plan.
Because you submitted this plan for approval after March 31, 1991, the
continued, interim and extended reliance pro----- of sections 13 and 17.03 of
Rev. Proc. 89-9, 1989-1 C.B. 780, are not applicable.
If you, the sponsoring organization, have any questions concerning the IRS
processing of this case, please call the telephone number. This number is only
for use of the sponsoring organization. Individual participants and/or a
- ------ employers with questions concerning the plan should contact the
sponsoring organization. The plan's adoption agreement include the sponsoring
organization's address and telephone number for inquiries by adopting
employers.
If you write to the IRS regarding this plan, please provide your telephone
number and the most convenient time to call in case we need more information.
Whether you call or write, please refer to the Letter Serial Number and File
Number shown in the heading of this letter.
You should keep this letter as a permanent record. Please notify us if you
modify or discontinue sponsorship of this.
Sincerely yours,
Chief, Employee Plans Qualifications Branch
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<PAGE> 1
EXHIBIT 23
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We have issued our report dated January 20, 1998, accompanying the
consolidated financial statements included in the Annual Report of Prime
Bancshares, Inc. and Subsidiaries on Form 10-K for the year ended December 31,
1997. We hereby consent to the incorporation by reference of said report in the
Registration Statement on Form S-8 of Prime Bancshares, Inc.
GRANT THORNTON LLP.
Houston, Texas
September 28, 1998
