-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JBBOa+ULPTyJ+kSV755fN3BhTh/d+4ro/Rc0qMkdlNZN8QlWjQ3hGcawD+HU159Z G2+kIUXYYS/KdKeYPSYetQ== /in/edgar/work/20000710/0000909518-00-000435/0000909518-00-000435.txt : 20000712 0000909518-00-000435.hdr.sgml : 20000712 ACCESSION NUMBER: 0000909518-00-000435 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20000710 EFFECTIVENESS DATE: 20000710 FILER: COMPANY DATA: COMPANY CONFORMED NAME: SAMUELS JEWELERS INC CENTRAL INDEX KEY: 0000790360 STANDARD INDUSTRIAL CLASSIFICATION: [5944 ] IRS NUMBER: 953746316 STATE OF INCORPORATION: DE FISCAL YEAR END: 0529 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-41086 FILM NUMBER: 670502 BUSINESS ADDRESS: STREET 1: 2914 MONTOPOLIS STREET 2: SUITE 200 CITY: AUSTIN STATE: TX ZIP: 78741 BUSINESS PHONE: 512-369-1400 MAIL ADDRESS: STREET 1: 2914 MONTOPOLIS DRIVE STREET 2: SUITE 200 CITY: AUSTIN STATE: TX ZIP: 78741 FORMER COMPANY: FORMER CONFORMED NAME: BARRYS JEWELERS INC /CA/ DATE OF NAME CHANGE: 19920703 S-8 1 0001.txt As filed with the Securities and Exchange Commission on July 10, 2000 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 SAMUELS JEWELERS, INC. (Exact Name of Registrant as Specified in Its Charter) DELAWARE 95-3746316 (State or Other Jurisdiction of (I.R.S. Employer Incorporation or Organization) Identification No.) 2914 MONTOPOLIS DRIVE, SUITE 200 AUSTIN, TEXAS 78741 (Address, including zip code, of Registrant's Principal Executive Offices) SAMUELS JEWELERS, INC. 401(K) PLAN (Full Title of the Plan) E. Peter Healey Copy to: Executive Vice President, Chief Financial Officer and Secretary Charles E. Harrell, Esq. Samuels Jewelers, Inc. Weil, Gotshal & Manges LLP 2914 Montopolis Drive, Suite 200 700 Louisiana, Suite 1600 Austin, Texas 78741 Houston, Texas 77002 (512) 369-1400 (713) 546-5000 (Name, Address and Telephone Number, including Area Code, of Agent For Service)
============================================================================================================= CALCULATION OF REGISTRATION FEE - ------------------------------------------------------------------------------------------------------------- Title of Each Proposed Proposed Class Of Maximum Maximum Securities Amount Offering Aggregate Amount Of To Be To Be Price Offering Registration Registered Registered (1) Per Unit(2) Price(2) Fee - ------------------------------------------------------------------------------------------------------------- Common Stock, par value 200,000 shares $4.75 $950,000 $251 $.001 per share - -------------------------------------------------------------------------------------------------------------
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended, this registration statement also covers an indeterminate amount of interests to be offered or sold pursuant to the Plan. (2) Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act of 1933, as amended, based on a good faith estimate of the aggregate number of shares of common stock of the Registrant that will be purchased pursuant to the Plan and on the average of the bid and asked prices ($4.75) of the Registrant's common stock as given on the Nasdaq OTC Bulletin Board on July 6, 2000. ================================================================================ PART I INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS ITEM 1. PLAN INFORMATION. The documents containing the information specified in Part I of this Registration Statement will be sent or given to employees as specified by Rule 428(b)(1). Such documents are not required to be and are not filed with the Securities and Exchange Commission (the "Commission") either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424. These documents and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act of 1933, as amended (the "Securities Act"). ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION. Upon written or oral request, any of the documents incorporated by reference in Item 3 of Part II of this Registration Statement (which documents are incorporated by reference in this Section 10(a) Prospectus), other documents required to be delivered to eligible employees pursuant to Rule 428(b), or additional information about the Samuels Jewelers, Inc. 401(k) Plan, Samuels Jewelers, Inc. and the administrators of such plan are available without charge by contacting: Samuels Jewelers, Inc. 2914 Montopolis Drive, Suite 200 Austin, Texas 78741 (512) 369-1400 Attention: E. Peter Healey Executive Vice President, Chief Financial Officer and Secretary PART II INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE. The following documents filed with the Commission by Samuels Jewelers, Inc. (the "Corporation") are incorporated herein by reference: (a) the Corporation's Annual Report on Form 10-K for the fiscal year ended May 29, 1999 (File No. 0-15017); (b) the Corporation's Quarterly Reports on Form 10-Q for the quarters ended August 28, 1999, November 27, 1999 and February 26, 2000, respectively (File No. 0-15017); and (c) the description of the Corporation's Common Stock contained in the Corporation's Registration Statement on Form S-1/A filed on June 8, 1999 (File No. 333-78923), including any amendment or report filed for the purpose of updating such description. All documents subsequently filed by the Corporation with the Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, 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. ITEM 4. DESCRIPTION OF SECURITIES. Not applicable. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL. Not applicable. II-1 ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS. The Corporation's Certificate of Incorporation provides that each person who was or is made a party to any threatened, pending or completed action, suit or proceeding by reason of the fact that he or she is or was a director or officer of the Corporation will be indemnified by the Corporation, to the full extent permitted by the Delaware General Corporation Law (the "DGCL"). Under Section 145 of the DGCL, a corporation may indemnify a director, officer, employee or agent of the corporation against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful. In the case of an action brought by or in the right of a corporation, a corporation may indemnify a director, officer, employee or agent of the corporation against expenses (including attorneys' fees) actually and reasonably incurred by him or her if he or she acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless a court finds that, in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses as the court shall deem proper. The Certificate of Incorporation provides that a director of the Corporation shall not be liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except (i) for breaches of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or involving intentional misconduct or known violations of law, (iii) for the payment of unlawful dividends or unlawful stock purchases or redemptions or (iv) for transactions in which the director received an improper personal benefit. The Certificate of Incorporation further provides that neither amendment nor repeal of such provision nor the adoption of any term of the Certificate of Incorporation inconsistent with such provision shall eliminate or reduce the effect of such provision in respect of any matter occurring, or any cause of action, suit or claim that, but for such provision, would accrue or arise, prior to such amendment, repeal or adoption of such inconsistent provision. The Corporation maintains a standard form of officers' and directors' liability insurance policy that provides coverage to the Corporation and the officers and directors of the Corporation for certain liabilities. The foregoing summaries are necessarily subject to the complete text of the statutes, the Certificate of Incorporation, the indemnification agreements and the insurance policy referred to above and are qualified in their entirety by reference thereto. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED. Not applicable. ITEM 8. EXHIBITS. The Exhibits to this Registration Statement are listed in the Index to Exhibits on page II-7 of this Registration Statement, which index is incorporated herein by reference. II-2 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: (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 the 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 prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the change in volume and price represent no more than 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 the registration statement; provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, 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 will submit or has submitted the Plan and any amendments thereto to the Internal Revenue Service (the "IRS") in a timely manner and has made or will make all changes required by the IRS to qualify the Plan under Section 401(k) of the Internal Revenue Code, as amended to date. II-3 (c) 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 Exchange Act 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. (d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 Securities Act of 1933 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 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 of whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, 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 to be signed on its behalf by the undersigned, thereunto duly authorized in the city of Austin, state of Texas, on July 7, 2000. SAMUELS JEWELERS, INC. By: /s/ Randy N. McCullough ------------------------------------- Randy N. McCullough President and Chief Executive Officer Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities and on the dates indicated. Each person whose signature appears below hereby authorizes and appoints Randy N. McCullough and E. Peter Healey, and each of them, his true and lawful attorneys-in-fact and agents with full power of substitution and resubstitution, for him or her and in his or her name, place and stead, and in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and hereby grants to such attorneys-in-fact and agents, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents or any of them or his or her or their substitute or substitutes may lawfully do or cause to be done by virtue hereof. SIGNATURE TITLE --------- ----- /s/ Randy N. McCullough President, Chief Executive Officer (Principal - -------------------------------- Executive Officer) and Director Randy N. McCullough /s/ E. Peter Healey Chief Financial Officer (Principal Financial - -------------------------------- Officer) and Director E. Peter Healey /s/ Doug Bullock Vice President-Finance (Principal Accounting - -------------------------------- Officer) Doug Bullock /s/ David H. Eisenberg Chairman of the Board - -------------------------------- David H. Eisenberg /s/ David B. Barr Director - -------------------------------- David B. Barr Director - -------------------------------- David J. Breazzano /s/ Wendy T. Landon Director - -------------------------------- Wendy T. Landon /s/ Jerry Winston Director - -------------------------------- Jerry Winston II-5 Pursuant to the requirements of the Securities Act of 1933, the trustees (or other persons who administer the employee benefit plan) have duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto authorized, in the city of Austin, state of Texas, on July 7, 2000. SAMUEL JEWELERS, INC. 401(k) PLAN By:/s/ Dwayne A. Cooper ------------------------------------ Name: Dwayne A. Cooper Title: Plan Administrator and Treasurer of Plan Sponsor II-6 INDEX TO EXHIBITS Exhibit Number Exhibit -------------- ------- 4.1 Certificate of Incorporation of the Registrant* 4.2 Bylaws of the Registrant* 4.3 Samuels Jewelers, Inc. 401(k) Plan 5.1 Opinion of Weil, Gotshal & Manges LLP. 23.1 Consent of Weil, Gotshal & Manges LLP (contained in Exhibit 5.1). 23.2 Consent of Deloitte & Touche LLP. 24.1 Power of Attorney# *Incorporated herein by reference to the Registrant's Current Report on Form 8-K dated September 16, 1998 (File No. 0-15017). #Included on "Signatures" page hereof. II-7 EX-4.3 2 0002.txt EXHIBIT 4.3 -------------------------------------------------------- MERRILL LYNCH --------------- SPECIAL --------------- PROTOTYPE DEFINED CONTRIBUTION PLAN ADOPTION AGREEMENT -------------------------------------------------------- 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. ADOPTION OF PLAN - ---------------- 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 - ----------------------------- 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: 001 401(K) PROFIT SHARING THRIFT Effective Date of Adoption or Restatement: 06/01/99 ___/___/___ ___/___/___ Original Effective Date: 01/01/95 ___/___/___ ___/___/___
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. - -------------------------------------------------- * If there are any Participating Affiliates in this Plan, list below the proper name of each Participating Affiliate. ________. ________. ________. 2 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." 3 (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. 4 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: ______. 5 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 6 (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 _______. 7 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: _____. 8 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. 9 401(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. 10 [ ] (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) 11 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. 12 (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. 13 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%. 14 (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% 15 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. 16 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. 17 [ ] (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. 18 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: 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; --------- ---------
100% after 5 years of Vesting Service. 19 (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: 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; --------- ---------
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 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 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 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 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 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 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 EX-5.1 3 0003.txt EXHIBIT 5.1 WEIL, GOTSHAL & MANGES LLP 700 LOUISIANA, SUITE 1600 HOUSTON, TEXAS 77002 (713) 546-5000 July 6, 2000 Samuels Jewelers, Inc. 2914 Montopolis Drive, Suite 200 Austin, Texas 78741 Ladies and Gentlemen: We have acted as counsel to Samuels Jewelers, Inc., a Delaware corporation (the "Company"), in connection with the preparation and filing by the Company of its Registration Statement on Form S-8 (the "Registration Statement") under the Securities Act of 1933, as amended, pertaining to 200,000 shares (the "Offered Shares") of the Company's common stock, par value $.001 per share ("Common Stock"), which the Company may issue pursuant to the Samuels Jewelers, Inc. 401(k) Plan (the "Plan"). In so acting, we have examined originals or copies, certified or otherwise identified to our satisfaction, of the Company's Certificate of Incorporation and Bylaws, the resolutions adopted by the Board of Directors of the Company authorizing the filing of the Registration Statement, and such other corporate records, agreements, documents and other instruments, and such certificates or comparable documents of public officials and of officers and representatives of the Company, and have made such inquiries of such officers and representatives, as we have deemed relevant and necessary as a basis for the opinions set forth. In such examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies and the authenticity of the originals of such latter documents. As to all questions of fact material to this opinion that have not been independently established, we have relied upon certificates or comparable documents of officers and representatives of the Company and upon the representations and warranties of the Company. Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that the Offered Shares have been duly authorized and, when issued against payment therefor as contemplated under the Plan, will be validly issued, fully paid and non-assessable. We hereby consent to the use of this letter as an exhibit to the Registration Statement. Very truly yours, /s/ Weil, Gotshal & Manges LLP 2 EX-23.2 4 0004.txt EXHIBIT 23.2 INDEPENDENT AUDITORS' CONSENT We consent to the incorporation by reference in this Registration Statement of Samuels Jewelers, Inc. on Form S-8 of our report dated September 10, 1999, appearing in the Annual Report on Form 10-K of Samuels Jewelers, Inc. for the year ended May 29, 1999. Dallas, Texas July 7, 2000 -----END PRIVACY-ENHANCED MESSAGE-----