EXHIBIT 10.8
401[k] Standardized Profit Sharing Plan
Adoption Agreement
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Section 1 Employer Information
Name of Employer AvantGo Inc.
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Address ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇▇
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City San Mateo State CA Zip 94402
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Telephone [******]
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Federal Tax Identification Number [9][4] - [3][2][7][5][7][8][9]
Income Tax Year End 12/31 Plan Year End December 31
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Month/Day Month/Day
Type of Business [_] Sole Proprietorship
(Check only one) [_] Partnership
[X] Corporation
[_] Other (specify)
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Nature of Business (Description) other business 7398
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Plan Sequence No. 00 1
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(Enter 001 if this is the first qualified plan the
Employer has ever maintained, enter 002 if it is the
second, etc.)
Plan Name AvantGo Inc. 401(k) Profit Sharing Plan & Trust
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Section 2 Effective Dates
Part A Initial Adoption or Amendment of Plan: Check and complete Option 1
or 2
Option 1 This is the initial adoption of a profit sharing plan by the
Employer. The Effective Date of this Plan is JANUARY 1, 1998.
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NOTE: The effective date is usually the first day of the Plan Year
in which this Adoption Agreement is signed.
Option 2 This is an amendment and restatement of an existing profit sharing
plan (a Prior Plan).
The Prior Plan was initially effective on ___________, 19___.
The Effective Date of this amendment and restatement is ______,
19__.
NOTE: The effective date is usually the first day of the Plan Year
in which this Adoption Agreement is signed.
Part B Commencement of Elective Deferrals:
Elective Deferrals may commence on April 1 , 1998.
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Note: Complete this part only if Option 1 above was selected. This
date may be no earlier then the date this Adoption Agreement is
signed because Elective Deferrals cannot be made retroactively.
Section 3 Eligibility Requirements Complete Parts A, B, C and D
Part A Years Of Eligibility Service Requirement:
[X] An Employee will be eligible to become a Participant in the Plan
after completing 1 (enter 0 or 1) Years of Eligibility Service.
NOTE: If left blank, the Years of Eligibility Service required
will be deemed to be 0.
[_] With the exception of the initial Plan Year Effective Date, an
Employee will be eligible to become a Participant in the Plan
after completing 1 (enter 0 or 1) Years of Eligibility
Service.
NOTE: If left blank, the Years of Eligibility Service required
will be deemed to be 0.
****** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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Part B Age Requirement:
An Employee will be eligible to become a Participant in the Plan
after attaining age 21 (no more than 21).
NOTE: If left blank, It will be deemed there is no age requirement
for eligibility.
Part C Class of Employees Eligible to Participate:
All Employees shall be eligible to became a Participant in the
Plan, except those checked below:
[X] Those Employees Included in a unit of Employees covered by
the terms of a collective bargaining agreement between Employee
representatives (the term "Employee representatives" does not
include any organization more than half of whose members are
Employees who are owners, officers or executives of the Employer)
and the Employer under which retirement benefits were the subject
of good faith bargaining unless the agreement provides that such
Employees are to be included in the Plan.
[X] Those Employees who are non-resident aliens pursuant to
Section 410(b)(3)(C} of the Code and who received no earned income
from the Employer which constitutes income from sources within the
United States.
Part D Entry Date: The Entry Dates for participation shall be (Choose
only one Option):
Option 1: [X] The first day of the Plan Year and the first day of
the seventh month of the Plan Year.
Option 2: [_] Other (Specify)
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NOTE: If Option 2 is selected, the Entry Dates specified must be
more frequent than those described in Option 1.
Section 4 Elective Deferrals
Part A Will Elective Deferrals be permitted under this Plan? (Choose one)
Option 1: [X] Yes.
Option 2: [_] No.
NOTE: If no option is selected, Option 2 will automatically apply.
Complete the remainder of Section 4 only if Option 1 is selected.
Part B If Elective Deferrals are permitted under the Plan, a Contributing
Participant may elect under a salary reduction agreement to have
his Compensation reduced by an amount each pay period as described
below (Choose one):
Option 1: [X] An amount equal to a percentage of the Contributing
Participant's Compensation from 1% to 15% in increments of 1%.
Option 2: [_] An amount of the Contributing Participant's
Compensation not less than $ and not more than $ .
The amount of such reduction shall be contributed to the Plan by
the Employer on behalf of the Contributing Participant. For any
taxable year, a Contributing Participant's Elective Deferrals
shall not exceed the limit contained in Section 402(g) of the Code
in effect at the beginning of such taxable year.
Part C Participants who claim Excess Elective Deferrals for the preceding
calendar year must submit their claims in writing to the Plan
Administrator by Feb. 1.
NOTE: This date should be a date prior to the Participant's tax
return due date. If no date is selected, March 1 will be deemed to
be selected.
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Section 5 Matching Contributions
Part A Will the Employer make Matching Contributions to the Plan on
behalf of Contributing Participants? (Choose one)
Option 1: [_] Yes.
Option 2: [X] No.
NOTE: If no option is selected, Option 2 will automatically apply.
Complete the remainder of Section 5 only if Option 1 is selected.
Part B Matching Contribution Formula. If the Employer will make Matching
Contributions, then the amount of such Matching Contributions made
on behalf of a Contributing Participant each Plan Year shall be
(Choose one):
Option 1: [X] An amount equal to ____% of such Contributing
Participant's Elective Deferral.
Option 2: [_] An amount equal to the sum of ____% of the portion
of such Contributing Participant's Elective Deferral which does
not exceed ____% of the Contributing Participant's Compensation
plus ____% of the portion of such contributing Participant's
Elective Deferral which exceeds ____% of the Contributing
Participant's Compensation.
Option 3: [_] Other Formula, (Specify)
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NOTE: If Option 3 is selected, the formula specified can only
allow Matching Contributions to be made with respect to a
Contributing Participant's Elective Deferrals.
Part C Limit on Matching Contributions. Notwithstanding the matching
contribution formula specified above, the Employer will not match
a Contributing Participant's Elective Deferrals in excess of $____
or ____% of such Contributing Participant's Compensation.
Part D Forfeitures of Excess Aggregate Contribution. Complete Part D only
if Matching Contributions are not 100% Vested.
Forfeitures of Excess Aggregate Contributions shall be (Choose
one):
Option 1: [_] Allocated, after all other Forfeitures under the
Plan, to each Contributing Participant's Matching Contribution
account in the ratio which each Contributing Participant's
Compensation for the Plan Year bears to the total Compensation of
all Contributing Participants for such Plan Year. Such Forfeitures
will not be allocated to the account of any Highly Compensated
Employee.
Option 2: [X] Applied to reduce Employer Contributions.
Note: If no option is selected, Option 2 will be deemed to be
selected.
Section 6 Qualified Nonelective Contributions
Part A Will the Employer make Qualified Nonelective Contributions to the
Plan? (Choose one)
Option 1: [X] Yes.
Option 2: [_] No.
If the Employer will make Qualified Nonelective Contributions,
then the amount of such contribution to the Plan for each Plan
Year shall be an amount determined by the Employer. NOTE: If no
option is selected, Option 2 will automatically apply. Complete
the remainder of Section 6 only if Option 1 is selected.
Part B Participants Entitled to Qualified Nonelective Contributions.
Allocation of Qualified Nonelective Contributions shall be made to
the Individual Accounts of (Choose one):
Option 1: [_] All Participants.
Option 2: [X] Only Participants who are not Highly Compensated
Employees.
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Part C Allocation of Qualified Nonelective Contributions. Allocation of
Qualified Nonelective Contributions to Participants entitled
thereto shall be made (Choose one):
Option 1: [X] In the ratio which each Participant's Compensation
for the Plan Year bears to the total Compensation of all
Participants for such Plan Year.
Option 2: [_] In the ratio which each Participant's Compensation
not in excess of $____________ for the Plan Year bears to the
total Compensation of all Participants not in excess of $________
for such Plan Year.
Section 7 Employer Profit Sharing Contribution and Allocation Formula
Part A Contribution Formula. For each Plan Year the Employer may, in Its
sole discretion, contribute to the Plan an amount to be determined
from year to year.
Part B Allocation Formula (Check Option 1 or 2):
Option 1: [X] Pro Rata Formula. Employer Contributions made
pursuant to this Section and Forfeitures shall be allocated to the
Individual Accounts of qualifying Participants in the ratio that
each qualifying Participant's Compensation for the Plan Year bears
to the total Compensation of all qualifying participant's for the
Plan Year.
Option 2: [_] Integrated Formula. Employer Contributions made
pursuant to this Section and Forfeitures shall be allocated as
follows (Start with Step 3 if this Plan is not a Top-Heavy Plan):
Step 1. Employer Contributions and Forfeitures shall first be
allocated pro rata to qualifying Participants in the manner
described in Section 7, Part B, Option 1. The percent so
allocated shall not exceed 3% of each qualifying
participant's Compensation.
Step 2. Any Employer Contributions and Forfeitures remaining
after the allocation in Step 1 shall be allocated to each
qualifying Participant's Individual Account in the ratio that
each qualifying Participant's Compensation for the Plan Year
in excess of the integration level bears to all qualifying
Participants' Compensation in excess of the integration
level, but not in excess of 3%.
Step 3. Any Employer Contributions and Forfeitures remaining
after the allocation in Step 2 shall be allocated to each
qualifying Participant's Individual Account in the ratio that
the sum of each qualifying Participant's total Compensation
and Compensation in excess of the integration level bears to
the sum of all qualifying Participants' total Compensation
and Compensation in excess of the integration level, but not
in excess of the profit sharing maximum disparity rate as
described in Section 3.01(B)(3) of the Plan.
Step 4. Any Employer Contributions and Forfeitures remaining
after the allocation in Step 3 shall be allocated pro rata to
qualifying Participants in the manner described in Section 7,
Part B, Option 1.
The Integration level shall be (Choose one):
Option 1: [_] The Taxable Wage Base
Option 2: [_] $________ (a dollar amount less than the Taxable
Wage Base)
Option 3: [_] ____% of the Taxable Wage Base
NOTE: If no box is checked, the integration level shall be the
Taxable Wage Base.
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Section 8 Vesting Complete Parts A and B
Part A Vesting Schedules.
A Participant shall become Vested in his or her Individual Account
attributable to Employer Contributions made pursuant to Section 7
of the Adoption Agreement (and Forfeitures thereof) as follows
(Choose one):
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YEARS OF VESTED PERCENTAGE
VESTING SERVICE Option 1 [_] Option 2 [X] Option 3 [_] Option 4 [_] (Complete _____)
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1 0% 0% 100% ____%
2 20% 0% 100% ____%
3 40% 100% 100% ____% (not less than 20%)
4 60% 100% 100% ____% (not less than 40%)
5 80% 100% 100% ____% (not less than 60%)
6 100% 100% 100% ____% (not less than 80%)
7 100% 100% 100% ____% (not less than 100%)
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NOTE: If left blank Option 3, 100% vesting will be deemed to be selected.
Part B Vesting of Matching Contributions. A Participant's Individual
Account derived from Matching Contributions made pursuant to
Section 5 of this Adoption Agreement shall be (Choose one if
Matching Contributions will be made):
Option 1: [_] 100% Vested at all times
Option 2: [X] Vested in accordance with the vesting schedule
selected in Section 8, Part A above.
NOTE: If no selection is made, the selection shall be deemed to be
Option 1
Section 9 Normal Retirement Age
The Normal Retirement Age under the Plan is age 65 (not to exceed
85).
NOTE: If left blank, the Normal Retirement Age will be deemed to
be age 59 1/2.
Section 10 Hours Required Complete Parts A and B and Part C, if applicable
Part A 1000 Hours of Service (no more than 1,000) shall be required to
constitute a Year of Vesting Service or a Year of Eligibility
Service.
Part B 500 Hours of Service (no more than 500 but less then the number
specified in Section 10, Part A) must be exceeded to avoid a Break
in Vesting Service or a Break in Eligibility Service.
Part C For purposes of determining Years of Eligibility Service and Years
of Vesting Service, Employees shall be given credit for Hours of
Service with the following predecessor employer(s) (Complete if
applicable): N/A
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Section 11 Other Options Answer "Yes" or "No" to each of the following
questions by checking the appropriate box. If a box is not
checked for a question, the answer will be deemed to
be "No".
A. Loans: Will loans to Participants pursuant to Section 6.08 of the Plan be permitted? [X] Yes [_] No
B. Participant Direction of Investments: Will Participants be permitted to direct the investment of their [X] Yes [_] No
Individual Accounts, pursuant to Section 5.14 of the Plan?
C. In-Service Withdrawals: Will Participants be permitted to make withdrawals during Service pursuant to [_] Yes [X] No
Section 6.01(A)(3) of the Plan? Check here if such withdrawals will be permitted only on account of
hardship. Note: If the Plan is being adopted to amend and replace a Prior Plan which permitted in-service
withdrawals you must answer "Yes".
D. Nondeductible Employee Contributions: Will Participants be permitted to make Nondeductible Employee [_] Yes [X] No
Contributions pursuant to Section 11.304 of the Plan?
F. Hardship Withdrawals: Will Participants be permitted to withdraw Elective Deferrals on account of [_] Yes [X] No
hardship pursuant to Section 11.503 of the Plan?
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Section 12 Joint and Survivor Annuity
Part A Retirement Equity Act Safe Harbor. Will the safe harbor provisions
of Section 6.05(F} of the Plan apply (Choose one)?
Option 1: [X] Yes.
Option 2: [_] No.
NOTE: You must select "No." if you are adopting this Plan as an
amendment and restatement of a Prior Plan that was subject to the
joint and survivor annuity requirements
Part B Survivor Annuity Percentage: Complete only if your answer in
Section 12, Part A is "No." The survivor annuity portion of the
Joint and Survivor Annuity shall be a percentage equal to ____%
(at least 50%, but no more than 100%) of the amount paid to the
Participant prior to his or her death.
Section 13 Additional Plans
An Employer who has ever maintained or who later adopts any plan
(including a welfare benefit fund, as defined in Section 419(e) of
the Code, which provides post-retirement medical benefits
allocated to separate accounts for key employees as defined in
Section 419A(d)(3) of the Code or an individual medical account,
as defined in Section 415(1)(2) of the Code) in addition to this
Plan (other than a paired standardized regional prototype plan)
may not rely on the notification letter issued by the National or
District Office of the Internal Revenue Service as evidence that
this Plan is qualified under Section 401 of the Code. If the
Employer who adopts or maintains multiple plans or who may not
rely on this notification letter pursuant to the preceding
sentence wishes to obtain reliance that the Employer's plan(s) are
qualified, application for a determination letter should be made
to the appropriate Key District Director of Internal Revenue.
This Adoption Agreement may be used only in conjunction with Basic
Plan Document No. 01.
Section 14 Employer Signature Important: read before signing
I am an authorized representative of the Employer named above and
I state the following:
1. I acknowledge that I have relied upon my own advisors
regarding the completion of this Adoption Agreement and the
legal tax implications of adopting this Plan.
2. I understand that my failure to properly complete this
Adoption Agreement may result in disqualification of the
Plan.
3. I understand that the Regional Prototype Sponsor will inform
me of any amendments made to the Plan and will notify me
should it discontinue or abandon the Plan.
4. I have received a copy of this Adoption Agreement and the
corresponding Basic Plan Document.
Signature for Date Signed
Employer /s/ ▇▇▇▇▇ ▇▇▇
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Type Name ▇▇▇▇▇ ▇▇▇
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Section 15 Trustee or Custodian Check and complete only one option
Option A. [X]Individual Trustee(s)
Signature /s/ ▇▇▇▇▇ ▇▇▇ Signature
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Type Name ▇▇▇▇▇ ▇▇▇ Type Name
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Option B. [_] Financial Organization as Trustee or Custodian
Check One: [_] Custodian,
[_] Trustee without full trust powers, or
[_] Trustee with full trust powers
NOTE: Custodian will be deemed selected if no box
is checked.
Financial
Organization
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Signature
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Type Name
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Section 16 Regional Prototype Sponsor
Name of Regional Prototype Sponsor Paychex Retirement Services
Address ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone Number [******]
Section 17 Limitation on Allocations
More Than One Plan
If you maintain or ever maintained another qualified plan (other
than a paired standardized regional prototype plan) in which any
Participant in this Plan is (or was) a Participant or could become
a Participant, you must complete this section. You must also
complete this section if you maintain a welfare benefit fund, as
defined in Section 419(e) of the Code or an individual medical
account, as defined in Section 415(l)(2) of the Code under which
amounts are treated as annual additions with respect to any
Participant in this Plan.
Part A If the Participant is covered under another qualified defined
contribution plan maintained by the Employer, other than a regional
prototype plan:
1. [_] The provisions of Section 3.05(B)(1) through 3.05(B)(6) of
the Plan will apply as if the other plan were a regional prototype
plan.
2. [_] Other method. (Provide the method under which the plans
will limit total annual additions to the maximum permissible
amount, and will properly reduce any excess amounts, in a manner
that precludes Employer discretion.
N/A
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Part B If the Participant is or has ever been a participant in a defined
benefit plan maintained by the Employer, the Employer will provide
below the language which will satisfy the 1.0 limitation of Section
415(e) of the Code. Such language must preclude Employer
discretion. (Complete)
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Part C The limitation year is the following 12 consecutive month period:
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Section 18 Elective Deferrals Based Exclusively on Bonuses
May a contributing Participant base Elective Deferrals on cash
bonuses that, at the Contributing Participant's election, may be
contributed to the Plan or received by the Contributing Participant
in cash (Choose one)?
Option 1: [_] Yes.
Option 2: [X] No.
Note: Answer "yes" only if Elective Deferrals will be used
exclusively on cash bonuses rather than payroll deductions. If no
option is selected, Option 2 will automatically apply.
****** Certain information on this page had been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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