EXHIBIT 4.3
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MERRILL LYNCH
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SPECIAL
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PROTOTYPE DEFINED
CONTRIBUTION PLAN
ADOPTION AGREEMENT
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401(K) PLAN
EMPLOYEE THRIFT PLAN
PROFIT-SHARING PLAN
LETTER SERIAL NUMBER: D359287B
NATIONAL OFFICE LETTER DATE: 6/29/93
THIS PROTOTYPE PLAN AND ADOPTION AGREEMENT ARE IMPORTANT LEGAL INSTRUMENTS WITH
LEGAL AND TAX IMPLICATIONS FOR WHICH THE SPONSOR, MERRILL LYNCH, PIERCE, FENNER
& SMITH, INCORPORATED, DOES NOT ASSUME RESPONSIBILITY. THE EMPLOYER IS URGED TO
CONSULT WITH ITS OWN ATTORNEY WITH REGARD TO THE ADOPTION OF THIS PLAN AND ITS
SUITABILITY TO ITS CIRCUMSTANCES.
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ADOPTION OF PLAN
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The Employer named below hereby establishes or restates a profit-sharing plan
that includes a [X] 401(k), [ ] profit-sharing and/or [ ] thrift plan feature
(the "Plan") by adopting the Merrill Lynch Special Prototype Defined
Contribution Plan and Trust as modified by the terms and provisions of this
Adoption Agreement.
EMPLOYER AND PLAN INFORMATION
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Employer Name:* SAMUELS JEWELERS, INC.
Business Address: 2914 Montopolis Drive, Suite 200
Austin, TX 78741
Telephone Number: (512) 369-1400
Employer Taxpayer ID Number: 95-3746316
Employer Taxable Year ends on: DECEMBER 31ST
Plan Name: SAMUELS JEWELERS, INC.
401(K)
Plan Number: 001
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401(K) PROFIT SHARING THRIFT
<S> <C> <C> <C>
Effective Date of Adoption
or Restatement: 06/01/99 ___/___/___ ___/___/___
Original Effective Date: 01/01/95 ___/___/___ ___/___/___
</TABLE>
IF THIS PLAN IS A CONTINUATION OR AN AMENDMENT OF A PRIOR PLAN, ALL OPTIONAL
FORMS OF BENEFITS PROVIDED IN THE PRIOR PLAN MUST BE PROVIDED UNDER THIS PLAN TO
ANY PARTICIPANT WHO HAD AN ACCOUNT BALANCE, WHETHER OR NOT VESTED, IN THE PRIOR
PLAN.
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* If there are any Participating Affiliates in this Plan, list below the proper
name of each Participating Affiliate.
________.
________.
________.
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ARTICLE I. DEFINITIONS
A. "COMPENSATION"
(1) With respect to each Participant, except as provided below, Compensation
shall mean the (select all those applicable for each column):
401(K) AND/ PROFIT
OR THRIFT SHARING
[X] [ ] (a) amount reported in the "Wages Tips and Other
Compensation" Box on Form W-2 for the applicable period
selected in Item 5 below.
[ ] [ ] (b) compensation for Code Section 415 safe-harbor purposes
(as defined in Section 3.9.1 (H)(i) of basic plan document
#03) for the applicable period selected in Item 5 below.
[ ] [ ] (c) amount reported pursuant to Code Section 3401(a) for
the applicable period selected in Item 5 below.
[ ] [ ] (d) all amounts received (under options (a) (b) or (c)
above) for personal services rendered to the Employer but
excluding (select one):
[ ] overtime
[ ] bonuses
[ ] commissions
[ ] amounts in excess of $_______
[ ] other (specify)_______.
(2) Treatment of Elective Contributions (select one):
[X] (a) For purposes of contributions, Compensation shall include
Elective Deferrals and amounts excludable from the gross income of the
Employee under Code Section 125, Code Section 402(e)(3), Code Section
402(h) or Code Section 403(b) ("elective contributions").
[ ] (b) For purposes of contributions, Compensation shall not include
"elective contributions."
(3) CODA Compensation (select one):
[X] (a) For purposes of the ADP and ACP Tests, Compensation shall include
"elective contributions."
[ ] (b) For purposes of the ADP and ACP Tests, Compensation shall not
include "elective contributions."
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(4) With respect to Contributions to an Employer Contributions Account,
Compensation shall include all Compensation (select one):
[ ] (a) during the Plan Year in which the Participant enters the Plan.
[X] (b) after the Participant's Entry Date.
(5) The applicable period for determining Compensation shall be (select one):
[X] (a) the Plan Year.
[ ] (b) the Limitation Year.
[ ] (c) the consecutive 12-month period ending on _____.
B. "DISABILITY"
(1) Definition
Disability shall mean a condition which results in the Participant's
(select one):
[ ] (a) inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment that can be
expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months.
[X] (b) total and permanent inability to meet the requirements of the
Participant's customary employment which can be expected to last for a
continuous period of not less than 12 months.
[ ] (c) qualification for Social Security disability benefits.
[ ] (d) qualification for benefits under the Employer's long-term
disability plan.
(2) Contributions Due to Disability (select one):
[X] (a) No contributions to an Employer Contributions Account will be made
on behalf of a Participant due to his or her Disability.
[ ] (b) Contributions to an Employer Contributions Account will be made on
behalf of a Participant due to his or her Disability provided that: the
Employer elected option (a) or (c) above as the definition of
Disability, contributions are not made on behalf of a Highly Compensated
Employee, the contribution is based on the Compensation each such
Participant would have received for the Limitation Year if the
Participant had been paid at the rate of Compensation paid immediately
before his or her Disability, and contributions made on behalf of such
Participant will be nonforfeitable when made.
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C "EARLY RETIREMENT" is (select one):
[X] (1) not permitted.
[ ] (2) permitted if a Participant terminates Employment before Normal
Retirement Age and has (select one):
[ ] (a) attained age ______.
[ ] (b) attained age ______ and completed ______ Years of Service.
[ ] (c) attained age ______ and completed ______ Years of Service as a
Participant.
D. "ELIGIBLE EMPLOYEES" (select one):
[ ] (1) All Employees are eligible to participate in the Plan.
[X] (2) The following Employees are not eligible to participate in the Plan
(select all those applicable):
[X] (a) Employees included in a unit of Employees covered by a
collective bargaining agreement between the Employer or a
Participating Affiliate and the Employee representatives (not
including any organization more than half of whose members are
Employees who are owners, officers, or executives of the Employer or
Participating Affiliate) in the negotiation of which retirement
benefits were the subject of good faith bargaining, unless the
bargaining agreement provides for participation in the Plan.
[ ] (b) non-resident aliens who received no earned income from the
Employer or a Participating Affiliate which constitutes income from
sources within the United States.
[ ] (c) Employees of an Affiliate.
[ ] (d) Employees employed in or by the following specified division,
plant, location, job category or other identifiable individual or
group of Employees: ______.
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E. "ENTRY DATE" Entry Date shall mean (select as applicable):
401(K)
AND/OR PROFIT
THRIFT SHARING
[ ] [ ] (1) If the initial Plan Year is less than twelve months, the
_______ day of _______ and thereafter:
[ ] [ ] (2) the first day of the Plan Year following the date the
Employee meets the eligibility requirements. If the Employer
elects this option (2) establishing only one Entry Date, the
eligibility "age and service" requirements elected in Article II
must be no more than age 20-1/2 and 6 months of service.
[X] [ ] (3) the first day of the month following the date the Employee
meets the eligibility requirements.
[ ] [ ] (4) the first day of the Plan Year and the first day of the
seventh month of the Plan Year following the date the Employee
meets the eligibility requirements.
[ ] [ ] (5) the first day of the Plan Year, the first day of the fourth
month of the Plan Year, the first day of the seventh month of
the Plan Year, and the first day of the tenth month of the Plan
Year following the date the Employee meets the eligibility
requirements.
[ ] [ ] (6) other: .
provided that the Entry Date or Dates selected are no later
than any of the options above.
F. "HOURS OF SERVICE"
Hours of Service for the purpose of determining a Participant's Period of
Severance and Year of Service shall be determined on the basis of the method
specified below:
(1) Eligibility Service: For purposes of determining whether a Participant
has satisfied the eligibility requirements, the following method shall be
used (select one):
401(K)
AND/OR PROFIT
THRIFT SHARING
[ ] [ ] (a) elapsed time method
[X] [ ] (b) hourly records method
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(2) Vesting Service: A Participant's nonforfeitable interest shall be
determined on the basis of the method specified below (select one):
[X] (a) elapsed time method
[ ] (b) hourly records method
[ ] (c) If this item (c) is checked, the Plan only provides for
contributions that are always 100% vested and this item (2) will not
apply.
(3) Hourly Records: For the purpose of determining Hours of Service under
the hourly record method (select one):
[X] (a) only actual hours for which an Employee is paid or entitled to
payment shall be counted.
[ ] (b) an Employee shall be credited with 45 Hours of Service if such
Employee would be credited with at least 1 Hour of Service during the
week.
G. "INTEGRATION LEVEL"
[X] (1) This Plan is not integrated with Social Security.
[ ] (2) This Plan is integrated with Social Security. The Integration Level
shall be (select one):
[ ] (a) the Taxable Wage Base.
[ ] (b) $______ (a dollar amount less than the Taxable Wage Base).
[ ] (c) ______% of the Taxable Wage Base (not to exceed 100%).
[ ] (d) the greater of $10,000 or 20% of the Taxable Wage Base.
H. "LIMITATION COMPENSATION"
For purposes of Code Section 415, Limitation Compensation shall be compensation
as determined for purposes of (select one):
[ ] (1) Code Section 415 Safe-Harbor as defined in Section 3.9.1(H)(i) of
basic plan document #03.
[X] (2) the "Wages, Tips and Other Compensation" Box on Form W-2.
[ ] (3) Code Section 3401(a) Federal Income Tax Withholding.
I. "LIMITATION YEAR"
For purposes of Code Section 415, the Limitation Year shall be (select one):
[X] (1) the Plan Year.
[ ] (2) the twelve consecutive month period ending on the _______ day of the
month of _______.
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J. "NET PROFITS" are (select one):
[X] (1) not necessary for any contribution.
[ ] (2) necessary for (select all those applicable):
[ ] (a) Profit-Sharing Contributions.
[ ] (b) Matching 401(k) Contributions.
[ ] (c) Matching Thrift Contributions.
K. "NORMAL RETIREMENT AGE"
Normal Retirement Age shall be (select one):
[ ] (1) attainment of age ______ (not more than 65) by the Participant.
[X] (2) attainment of age 65 (not more than 65) by the Participant or the
5TH anniversary (not more than the 5th) of the first day of the Plan
Year in which the Eligible Employee became a Participant, whichever is
later.
[ ] (3) attainment of age _____ (not more than 65) by the Participant or
the ______. anniversary (not more than the 5th) of the first day on
which the Eligible Employee performed an Hour of Service, whichever is
later.
L. "PARTICIPANT DIRECTED ASSETS" are:
401(K) AND/ PROFIT
OR THRIFT SHARING
[X] [ ] (1) permitted.
[ ] [ ] (2) not permitted.
M. "PLAN YEAR"
The Plan Year shall end on the 31ST day of DECEMBER.
N. "PREDECESSOR SERVICE"
Predecessor service will be credited (select one):
[X] (1) only as required by the Plan.
[ ] (2) to include, in addition to the Plan requirements and subject to
the limitations set forth below, service with the following predecessor
employer(s) determined as if such predecessors were the Employer: _____.
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Service with such predecessor employer applies [select either or both (a) and/or
(b); (c) is only available in addition to (a) and/or (b)]:
[ ] (a) for purposes of eligibility to participate;
[ ] (b) for purposes of vesting;
[ ] (c) except for the following service: _______.
O. "VALUATION DATE"
Valuation Date shall mean (select one for each column, as applicable):
401(K) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (1) the last business day of each month.
[ ] [ ] (2) the last business day of each quarter within the Plan
Year.
[ ] [ ] (3) the last business day of each semi-annual period within
the Plan Year.
[ ] [ ] (4) the last business day of the Plan Year.
[X] [ ] (5) other: DAILY BASIS.
ARTICLE II. PARTICIPATION
PARTICIPATION REQUIREMENTS
An Eligible Employee must meet the following requirements to become a
Participant (select one or more for each column, as applicable):
401(K) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (1) Performance of one Hour of Service.
[ ] [ ] (2) Attainment of age ________ (maximum 20 1/2) and
completion of ________ (not more than 1/2) Years
of Service. If this item is selected, no Hours of
Service shall be counted.
[X] [ ] (3) Attainment of age 21 (maximum 21) and completion
of 1 Year(s) of Service. If more than one Year of
Service is selected, the immediate 100% vesting
schedule must be selected in Article VII of this
Adoption Agreement.
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401(K) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] (4) Attainment of age (maximum 21) and completion of
Year(s) of Service. If more than one Year of
Service is selected, the immediate l00% vesting
schedule must be selected in Article VII of this
Adoption Agreement.
[ ] [ ] (5) Each Employee who is an Eligible Employee on will
be deemed to have satisfied the participation
requirements on the effective date without regard
to such Eligible Employee's actual age and/or
service.
ARTICLE III. 401(K) CONTRIBUTIONS AND ACCOUNT ALLOCATION
A. ELECTIVE DEFERRALS
If selected below, a Participant's Elective Deferrals will be (select all
applicable):
[X] (1) a dollar amount or a percentage of Compensation, as specified by the
Participant on his or her 401(k) Election form, which may not exceed
_______ % of his or her Compensation.
[ ] (2) with respect to bonuses, such dollar amount or percentage as
specified by the Participant on his or her 401(k) Election form with
respect to such bonus.
B. MATCHING 401(K) CONTRIBUTIONS
If selected below, the Employer may make Matching 401(k) Contributions for each
Plan Year (select one):
[ ] (1) Discretionary Formula:
Discretionary Matching 401(k) Contribution equal to such a dollar amount or
percentage of Elective Deferrals, as determined by the Employer, which shall
be allocated (select one):
[X] (a) based on the ratio of each Participant's Elective Deferral for
the Plan Year to the total Elective Deferrals of all Participants
for the Plan Year. If inserted, Matching 40l(k) Contributions shall
be subject to a maximum amount of $_______ for each Participant or
_______% of each Participant's Compensation.
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[ ] (b) in an amount not to exceed ______% of each Participant's first
______% of Compensation contributed as Elective Deferrals for the
Plan Year. If any Matching 401(k) Contribution remains, it is
allocated to each such Participant in an amount not to exceed
______% of the next ______% of each Participant's Compensation
contributed as Elective Deferrals for the Plan Year.
Any remaining Matching 401(k) Contribution shall be allocated to each such
Participant in the ratio that such Participant's Elective Deferral for the
Plan Year bears to the total Elective Deferrals of all such Participants for
the Plan Year. If inserted, Matching 40l(k) Contributions shall be subject
to a maximum amount of $______ for each Participant or ______% of each
Participant's Compensation.
[ ] (2) Nondiscretionary Formula:
A nondiscretionary Matching 401(k) Contribution for each Plan Year equal to
(select one):
[ ] (a) _______% of each Participant's Compensation contributed as
Elective Deferrals. If inserted, Matching 40l(k) Contributions shall
be subject to a maximum amount of $_______ for each Participant or
_______% of each Participant's Compensation.
[ ] (b) _______% of the first _______% of the Participant's
Compensation contributed as Elective Deferrals and _______% of the
next _______% of the Participant's Compensation contributed as
Elective Deferrals. If inserted, Matching 40l(k) Contributions shall
be subject to a maximum amount of $_______ for each Participant or
_______% of each Participant's Compensation.
C. PARTICIPANTS ELIGIBLE FOR MATCHING 401(K) CONTRIBUTION ALLOCATION
The following Participants shall be eligible for an allocation to their Matching
401(k) Contributions Account (select all those applicable):
[X] (1) Any Participant who makes Elective Deferrals.
[ ] (2) Any Participant who satisfies those requirements elected by the
Employer for an allocation to his or her Employer Contributions Account
as provided in Article IV Section C.
[ ] (3) Solely with respect to a Plan in which Matching 401(k)
Contributions are made quarterly (or on any other regular interval that
is more frequent than annually) any Participant whose 401(k) Election is
in effect throughout such entire quarter (or other interval). ________
(quarterly, monthly or semi-annual)
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D. QUALIFIED MATCHING CONTRIBUTIONS
If selected below, the Employer may make Qualified Matching Contributions for
each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
[ ] (a) all Participants who make Elective Deferrals in that Plan Year.
[X] (b) only those Participants who are Nonhighly Compensated Employees
and who make Elective Deferrals for that Plan Year.
(2) Qualified Matching Contributions will be contributed and allocated to
each Participant in an amount equal to (select one):
[ ] (a) _______% of the Participant's Compensation contributed as
Elective Deferrals. If inserted, Qualified Matching Contributions
shall not exceed _______% of the Participant's Compensation.
[X] (b) Such an amount, determined by the Employer, which is needed to
meet the ACP Test.
(3) In its discretion, the Employer may elect to designate all or any part
of Matching 401(k) Contributions as Qualified Matching Contributions
that are taken into account as Elective Deferrals -- included in the ADP
Test and excluded from the ACP Test -- on behalf of (select one):
[ ] (a) all Participants who make Elective Deferrals for that Plan
Year.
[X] (b) Only Participants who are Nonhighly Compensated Employees who
make Elective Deferrals for that Plan Year.
E. QUALIFIED NONELECTIVE CONTRIBUTIONS
If selected below, the Employer may make Qualified Nonelective Contributions for
each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Nonelective
Contributions on behalf of (select one):
[ ] (a) all Eligible Participants.
[X] (b) only Eligible Participants who are Nonhighly Compensated
Employees.
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(2) Qualified Nonelective Contributions will be contributed and allocated to
each Eligible Participant in an amount equal to (select one):
[ ] (a) ______% (no more than 15%) of the Compensation of each Eligible
Participant eligible to share in the allocation.
[X] (b) Such an amount determined by the Employer, which is needed to
meet either the ADP Test or ACP Test.
(3) At the discretion of the Employer, as needed and taken into account as
Elective Deferrals included in the ADP Test on behalf of (select one):
[ ] (a) all Eligible Participants.
[X] (b) only those Eligible Participants who are Nonhighly Compensated
Employees.
F. Elective Deferrals used in ACP Test (select one):
[X] (1) At the discretion of the Employer, Elective Deferrals may be used to
satisfy the ACP Test.
[ ] (2) Elective Deferrals may not be used to satisfy the ACP Test.
G. MAKING AND MODIFYING A 401(K) ELECTION
An Eligible Employee shall be entitled to increase, decrease or resume his or
her Elective Deferral percentage with the following frequency during the Plan
Year (select one):
[ ] (1) annually.
[ ] (2) semi-annually.
[X] (3) quarterly.
[ ] (4) monthly
[ ] (5) other (specify): ________.
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each
period set forth above. A Participant may completely discontinue making
Elective Deferrals at any time effective for the payroll period after
written notice is provided to the Administrator.
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ARTICLE IV. PROFIT-SHARING CONTRIBUTIONS AND ACCOUNT ALLOCATION
A. PROFIT-SHARING CONTRIBUTIONS
If selected below, the following contributions for each Plan Year will be made:
Contributions to Employer Contributions Accounts (select one):
[ ] (a) Such an amount, if any, as determined by the Employer.
[ ] (b) _______% of each Participant's Compensation.
B. ALLOCATION OF CONTRIBUTIONS TO EMPLOYER CONTRIBUTIONS ACCOUNTS (select one):
[ ] (1) Non-Integrated Allocation
The Employer Contributions Account of each Participant eligible to share
in the allocation for a Plan Year shall be credited with a portion of
the contribution, plus any forfeitures if forfeitures are reallocated to
Participants, equal to the ratio that the Participant's Compensation for
the Plan Year bears to the Compensation for that Plan Year of all
Participants entitled to share in the contribution.
[ ] (2) Integrated Allocation
Contributions to Employer Contributions Accounts with respect to a Plan
Year, plus any forfeitures if forfeitures are reallocated to
Participants, shall be allocated to the Employer Contributions Account
of each eligible Participant as follows:
(a) First, in the ratio that each such eligible Participant's
Compensation for the Plan Year bears to the Compensation for that
Plan Year of all eligible Participants but not in excess of 3% of
each Participant's Compensation.
(b) Second, any remaining contributions and forfeitures will be
allocated in the ratio that each eligible Participant's Compensation
for the Plan Year in excess of the Integration Level bears to all
such Participants' excess Compensation for the Plan Year but not in
excess of 3%.
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(c) Third, any remaining contributions and forfeitures will be allocated
in the ratio that the sum of each Participant's Compensation and
Compensation in excess of the Integration Level bears to the sum of
all Participants' Compensation and Compensation in excess of the
Integration Level, but not in excess of the Maximum Profit-Sharing
Disparity Rate (defined below).
(d) Fourth, any remaining contributions or forfeitures will be allocated
in the ratio that each Participant's Compensation for that year
bears to all Participants' Compensation for that year.
The Maximum Profit-Sharing Disparity Rate is equal to the lesser of:
(a) 2.7% or
(b) The applicable percentage determined in accordance with the
following table:
IF THE INTEGRATION LEVEL IS
(AS A % OF THE TAXABLE WAGE
BASE ("TWB")). THE APPLICABLE PERCENTAGE IS:
20% (or $10,000 if greater)
or less of the TWB 2.7%
More than 20% (but not less than $10,001 but
not
more than 80% of the TWB 1.3%
More than 80% but not less
than 100% of the TWB 2.4%
100% of the TWB 2.7%
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C. PARTICIPANTS ELIGIBLE FOR EMPLOYER CONTRIBUTION ALLOCATION
The following Participants shall be eligible for an allocation to their Employer
Contributions Account (select all those applicable):
[ ] (1) Any Participant who was employed during the Plan Year.
[ ] (2) In the case of a Plan using the hourly record method for
determining Vesting Service, any Participant who was credited with a
Year of Service during the Plan Year.
[ ] (3) Any Participant who was employed on the last day of the Plan Year.
[ ] (4) Any Participant who was on a leave of absence on the last day of
the Plan Year.
[ ] (5) Any Participant who during the Plan Year died or became Disabled
while an Employee or terminated employment after attaining Normal
Retirement Age.
[ ] (6) Any Participant who was credited with at least 501 Hours of
Service whether or not employed on the last day of the Plan Year.
[ ] (7) Any Participant who was credited with at least 1,000 Hours of
Service and was employed on the last day of the Plan Year.
ARTICLE V. THRIFT CONTRIBUTIONS
A. EMPLOYEE THRIFT CONTRIBUTIONS
If selected below, Employee Thrift Contributions, which are required for
Matching Thrift Contributions, may be made by a Participant in an amount equal
to (select one):
[ ] (1) A dollar amount or a percentage of the Participant's Compensation
which may not be less than ________% nor may not exceed ________% of his
or her Compensation.
[ ] (2) An amount not less than ________% of and not more than ________%
of each Participant's Compensation.
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B. MAKING AND MODIFYING AN EMPLOYEE THRIFT CONTRIBUTION ELECTION
A Participant shall be entitled to increase, decrease or resume his or her
Employee Thrift Contribution percentage with the following frequency during the
Plan Year (select one):
[ ] (1) annually
[ ] (2) semi-annually
[ ] (3) quarterly
[ ] (4) monthly
[ ] (5) other (specify): _______.
Any such increase, decrease or resumption shall be effective as of the first
payroll period coincident with or next following the first day of each period
set forth above. A Participant may completely discontinue making Employee Thrift
Contributions at any time effective for the payroll period after written notice
is provided to the Administrator.
C. THRIFT MATCHING CONTRIBUTIONS
If selected below, the Employer will make Matching Thrift Contributions for each
Plan Year (select one):
[ ] (1) Discretionary Formula:
A discretionary Matching Thrift Contribution equal to such a dollar amount
or percentage as determined by the Employer, which shall be allocated
(select one):
[ ] (a) based on the ratio of each Participant's Employee Thrift
Contribution for the Plan Year to the total Employee Thrift
Contributions of all Participants for the Plan Year. If inserted,
Matching Thrift Contributions shall be subject to a maximum amount
of $_______ for each Participant or _______% of each Participant's
Compensation.
[ ] (b) in an amount not to exceed _______% of each Participant's
first _______% of Compensation contributed as Employee Thrift
Contributions for the Plan Year. If any Matching Thrift Contribution
remains, it is allocated to each such Participant in an amount not
to exceed _______% of the next _______% of each Participant's
Compensation contributed as Employee Thrift Contributions for the
Plan Year.
Any remaining Matching Thrift Contribution shall be allocated to each such
Participant in the ratio that such Participant's Employee Thrift
Contributions for the Plan Year bears to the total Employee Thrift
Contributions of all such Participants for the Plan Year. If inserted,
Matching Thrift Contributions shall be subject to a maximum amount of
$_______ for each Participant or ________% of each Participant's
Compensation.
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[ ] (2) Nondiscretionary Formula:
A nondiscretionary Matching Thrift Contribution for each Plan Year equal
to (select one):
[ ] (a) % of each Participant's Compensation contributed as Employee
Thrift Contributions. If inserted, Matching Thrift Contributions
shall be subject to a maximum amount of $_______ for each
Participant or _______% of each Participant's Compensation.
[ ] (b) _______% of the first _______% of the Participant's
Compensation contributed as Employee Thrift Contributions and
_______% of the next _______% of the Participant's Compensation
contributed as Employee Thrift Contributions. If inserted, Matching
Thrift Contributions shall be subject to a maximum amount of
$_______ for each Participant or _______% of each Participant's
Compensation.
D. QUALIFIED MATCHING CONTRIBUTIONS
If selected below, the Employer may make Qualified Matching Contributions for
each Plan Year (select all those applicable):
(1) In its discretion, the Employer may make Qualified Matching
Contributions on behalf of (select one):
[ ] (a) all Participants who make Employee Thrift Contributions.
[ ] (b) only those Participants who are Nonhighly Compensated Employees
and who make Employee Thrift Contributions.
(2) Qualified Matching Contributions will be contributed and allocated to
each Participant in an amount equal to:
[ ] (a) _______% of the Participant's Employee Thrift Contributions.
If inserted, Qualified Matching Contributions shall not exceed
_______% of the Participant's Compensation.
[ ] (b) such an amount, determined by the Employer, which is needed to
meet the ACP Test.
ARTICLE VI. PARTICIPANT CONTRIBUTIONS
PARTICIPANT VOLUNTARY NONDEDUCTIBLE CONTRIBUTIONS
Participant Voluntary Nondeductible Contributions are (select one):
[ ] (a) permitted.
[X] (b) not permitted.
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ARTICLE VII. VESTING
A. EMPLOYER CONTRIBUTION ACCOUNTS
(1) A Participant shall have a vested percentage in his or her
Profit-Sharing Contributions, Matching 401(k) Contributions and/or
Matching Thrift Contributions, if applicable, in accordance with the
following schedule (Select one):
MATCHING 401(K)
AND/OR MATCHING PROFIT-SHARING
THRIFT CONTRIBUTIONS CONTRIBUTIONS
[ ] [ ] (a) 100% vesting immediately upon participation.
[ ] [ ] (b) 100% after ________ (not more than 5) years of Vesting
Service.
[X] [ ] (c) Graded vesting schedule:
<TABLE>
<S> <C> <C>
0 % % after 1 year of Vesting Service;
--------- ---------
25 % % after 2 years of Vesting Service;
--------- ---------
40 % % (not less than 20%) after 3 years of Vesting Service;
--------- ---------
60 % % (not less than 40%) after 4 years of Vesting Service;
--------- ---------
80 % % (not less than 60%) after 5 years of Vesting Service;
--------- ---------
</TABLE>
100% after 5 years of Vesting Service.
19
<PAGE>
(2) Top Heavy Plan
MATCHING 401(K)
AND/OR MATCHING PROFIT-SHARING
THRIFT CONTRIBUTIONS CONTRIBUTIONS
Vesting Schedule (Select one):
[ ] [ ] (a) 100% vesting immediately upon participation.
[ ] [ ] (b) 100% after_______ (not more than 3) years of Vesting
Service.
[X] [ ] (c) Graded vesting schedule:
<TABLE>
<S> <C> <C>
0 % % after 1 year of Vesting Service;
--------- ---------
20 % % (not less than 20%) after 2 years of Vesting Service;
--------- ---------
40 % % (not less than 40%) after 3 years of Vesting Service;
--------- ---------
60 % % (not less than 60%) after 4 years of Vesting Service;
--------- ---------
80 % % (not less than 80%) after 5 years of Vesting Service;
--------- ---------
</TABLE>
100% after 6 years of Vesting Service.
Top Heavy Ratio:
(a) If the adopting Employer maintains or has ever maintained a qualified
defined benefit plan, for purposes of establishing present value to
compute the top-heavy ratio, any benefit shall be discounted only for
mortality and interest based on the following:
Interest Rate: 8%
Mortality Table: UP'84
(b) For purposes of computing the top-heavy ratio, the valuation date shall
be the last business day of each Plan Year.
20
<PAGE>
B. ALLOCATION OF FORFEITURES
Forfeitures shall be (select one from each applicable column):
MATCHING 401(K)
AND/OR MATCHING PROFIT-SHARING
THRIFT CONTRIBUTIONS CONTRIBUTIONS
[X] [ ] (1) used to reduce Employer contributions for succeeding
Plan Year.
[X] [ ] (2) allocated in the succeeding Plan Year in the ratio which
the Compensation of each Participant for the Plan Year bears
to the total Compensation of all Participants entitled to
share in the Contributions. If the Plan is integrated with
Social Security, forfeitures shall be allocated in accordance
with the formula elected by the Employer.
C. VESTING SERVICE
For purposes of determining Years of Service for Vesting Service [select (1) or
(2) and/or (3)]:
[X] (1) All Years of Service shall be included.
[ ] (2) Years of Service before the Participant attained age 18 shall be
excluded.
[ ] (3) Service with the Employer prior to the effective date of the Plan
shall be excluded.
ARTICLE VIII. DEFERRAL OF BENEFIT DISTRIBUTIONS,
IN-SERVICE WITHDRAWALS AND LOANS
A. DEFERRAL OF BENEFIT DISTRIBUTIONS
401(K) AND/ PROFIT
OR THRIFT SHARING
[ ] [ ] If this item is checked, a Participant's vested
benefit in his or her Employer Accounts shall be
payable as soon as practicable after the earlier of:
(1) the date the Participant terminates Employment
due to Disability or (2) the end of the Plan Year in
which a terminated Participant attains Early
Retirement Age, if applicable, or Normal Retirement
Age.
21
<PAGE>
B. IN-SERVICE DISTRIBUTIONS
[X] (1) In-service distributions may be made from any of the Participant's
vested Accounts, at any time upon or after the occurrence of the
following events (select all applicable):
[ ] (a) a Participant's attainment of age 59-1/2.
[X] (b) due to hardships as defined in Section 5.9 of the Plan.
[ ] (2) In-service distributions are not permitted.
C. LOANS ARE:
401(K) AND/ PROFIT
OR THRIFT SHARING
[X] [ ] (1) permitted.
[ ] [ ] (2) not permitted.
ARTICLE IX. GROUP TRUST
[ ] If this item is checked, the Employer elects to establish a Group Trust
consisting of such Plan assets as shall from time to time be transferred to
the Trustee pursuant to Article X of the Plan. The Trust Fund shall be a
Group Trust consisting of assets of this Plan plus assets of the following
plans of the Employer or of an Affiliate: _______.
ARTICLE X. MISCELLANEOUS
A. IDENTIFICATION OF SPONSOR
The address and telephone number of the Sponsor's authorized representative
is 800 Scudders Mill Road, Plainsboro, New Jersey 08536; (609) 282-2272.
This authorized representative can answer inquiries regarding the adoption
of the Plan, the intended meaning of any Plan provisions, and the effect of
the opinion letter.
The Sponsor will inform the adopting Employer of any amendments made to the
Plan or the discontinuance or abandonment of the Plan.
22
<PAGE>
B. PLAN REGISTRATION
1. Initial Registration
This Plan must be registered with the Sponsor, Merrill Lynch, Pierce,
Fenner & Smith Incorporated, in order to be considered a Prototype Plan
by the Sponsor. Registration is required so that the Sponsor is able to
provide the Administrator with documents, forms and announcements
relating to the administration of the Plan and with Plan amendments and
other documents, all of which relate to administering the Plan in
accordance with applicable law and maintaining compliance of the Plan
with the law.
The Employer must complete and sign the Adoption Agreement. Upon receipt
of the Adoption Agreement, the Plan will be registered as a Prototype
Plan of Merrill Lynch, Pierce, Fenner & Smith Incorporated. The Adoption
Agreement will be countersigned by an authorized representative and a
copy of the countersigned Adoption Agreement will be returned to the
Employer.
2. Registration Renewal
Annual registration renewal is required in order for the Employer to
continue to receive any and all necessary updating documents. There is
an annual registration renewal fee in the amount set forth with the
initial registration material. The adopting Employer authorizes Merrill
Lynch, Pierce, Fenner & Smith Incorporated, to debit the account
established for the Plan for payment of agreed upon annual fee;
provided, however, if the assets of an account are invested solely in
Participant-Directed Assets, a notice for this annual fee will be sent
to the Employer annually. The Sponsor reserves the right to change this
fee from time to time and will provide written notice in advance of any
change.
C. PROTOTYPE REPLACEMENT PLAN
This Adoption Agreement is a replacement prototype plan for the (1)
Merrill Lynch Special Prototype Defined Contribution Plan and Trust -
401(k) Plan #03-004 and (2) Merrill Lynch Asset Management, Inc., Special
Prototype Defined Contribution Plan and Trust - 401(k) Plan Adoption
Agreement #03-004.
D. RELIANCE
The adopting Employer may not rely on the opinion letter issued by the
National Office of the Internal Revenue Service as evidence that this
Plan is qualified under Code Section 401. In order to obtain reliance,
the Employer must apply to the appropriate Key District Director of the
Internal Revenue Service for a determination letter with respect to the
Plan.
23
<PAGE>
EMPLOYER'S SIGNATURE
--------------------
Name of Employer: /s/ Samuels Jewelers, Inc.
---------------------------------------------
By: /s/ E. Peter Healey
-----------------------------------------
Authorized Signature
E. Peter Healey
-----------------------------------------
Print Name
Chief Financial Officer - Plan Administrator
--------------------------------------------
Title
DATED: JUNE 16, 1999
TO BE COMPLETED BY MERRILL LYNCH:
---------------------------------
SPONSOR ACCEPTANCE:
-------------------
Subject to the terms and conditions of the Prototype Plan and this Adoption
Agreement, this Adoption Agreement is accepted by Merrill Lynch, Pierce, Fenner
& Smith Incorporated as the Prototype Sponsor.
Authorized Signature: /s/ Donald Galnielartis
---------------------------------------
24
<PAGE>
TRUSTEE(S) SIGNATURE
--------------------
This Trustee Acceptance is to be completed only if the Employer appoints one or
more Trustees and does not appoint a Merrill Lynch Trust Company as Trustee.
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
AS TRUSTEE:
------------------------------------ ------------------------------------------
(Signature) (print or type name)
------------------------------------ ------------------------------------------
(Signature) (print or type name)
------------------------------------ ------------------------------------------
(Signature) (print or type name)
------------------------------------ ------------------------------------------
(Signature) (print or type name)
------------------------------------ ------------------------------------------
(Signature) (print or type name)
------------------------------------ ------------------------------------------
(Signature) (print or type name)
DATED: ________________________, 19 ________
25
<PAGE>
THE MERRILL LYNCH TRUST COMPANIES AS TRUSTEE
--------------------------------------------
This Trustee Acceptance and designation of Investment Committee are to be
completed only when a Merrill Lynch Trust Company is appointed as Trustee.
TO BE COMPLETED BY THE EMPLOYER:
DESIGNATION OF INVESTMENT COMMITTEE
The Investment Committee for the Plan is (print or type names):
Name: /s/ Randy McCullough, President and Chief Executive Officer
-------------------------------------------------------------------------
Name: /s/ E. Peter Healey, Executive Vice President and Chief Financial Officer
-------------------------------------------------------------------------
Name: /s/ Chad Haggar, Senior Vice President
-------------------------------------------------------------------------
Name: /s/ Ronald P. Schott, Vice President
-------------------------------------------------------------------------
Name: /s/ Emily Gray, HR Director
-------------------------------------------------------------------------
Name:
-------------------------------------------------------------------------
TO BE COMPLETED BY MERRILL LYNCH TRUST COMPANY:
-----------------------------------------------
ACCEPTANCE BY TRUSTEE:
The undersigned hereby accept all of the terms, conditions, and obligations of
appointment as Trustee under the Plan. If the Employer has elected a Group Trust
in this Adoption Agreement, the undersigned Trustee(s) shall be the Trustee(s)
of the Group Trust.
SEAL MERRILL LYNCH TRUST COMPANY of Texas
By: /s/ Melanie Madecia
-------------------
DATED: July 1, 1999
26
