**Exhibit 99.2**

 
|  | ** ** | **INDEMNITY AGREEMENT** |
|--|------------|-------------------------|

 

This Indemnity Agreement, dated as of November 14,2005, is made by and between Intellisync Corporation, a Delaware corporation(the “Company”), and Rip Gerber (the “Indemnitee”).

 

**RECITALS**

 

A.           TheCompany is aware that competent and experienced persons are increasinglyreluctant to serve as directors, officers or agents of corporations unless theyare protected by comprehensive liability insurance or indemnification, due toincreased exposure to litigation costs and risks resulting from their serviceto such corporations, and due to the fact that the exposure frequently bears noreasonable relationship to the compensation of such directors, officers andother agents.

 

B.             Thestatutes and judicial decisions regarding the duties of directors and officersare often difficult to apply, ambiguous, or conflicting, and therefore fail toprovide such directors, officers and agents with adequate, reliable knowledgeof legal risks to which they are exposed or information regarding the propercourse of action to take.

 

C.             Plaintiffsoften seek damages in such large amounts and the costs of litigation may be soenormous (whether or not the case is meritorious), that the defense and/orsettlement of such litigation is often beyond the personal resources ofdirectors, officers and other agents.

 

D.            TheCompany believes that it is unfair for its directors, officers and agents andthe directors, officers and agents of its subsidiaries to assume the risk ofhuge judgments and other expenses which may occur in cases in which thedirector, officer or agent received no personal profit and in cases where thedirector, officer or agent was not culpable.

 

E.              TheCompany recognizes that the issues in controversy in litigation against adirector, officer or agent of a corporation such as the Company or itssubsidiaries are often related to the knowledge, motives and intent of suchdirector, officer or agent, that he is usually the only witness with knowledgeof the essential facts and exculpating circumstances regarding such matters,and that the long period of time which usually elapses before the trial orother disposition of such litigation often extends beyond the time that thedirector, officer or agent can reasonably recall such matters; and may extendbeyond the normal time for retirement for such director, officer or agent withthe result that he, after retirement or in the event of his death, his spouse,heirs, executors or administrators, may be faced with limited ability and unduehardship in maintaining an adequate defense, which may discourage such adirector, officer or agent from serving in that position.

 

F.              Basedupon their experience as business managers, the Board of Directors of theCompany (the “Board”) has concluded that, to retain and attract talented andexperienced individuals to serve as directors, officers and agents of theCompany and its subsidiaries and to encourage such individuals to take thebusiness risks necessary for the success of the Company and its subsidiaries, itis necessary for the Company to contractually indemnify its directors, officersand agents and the directors, officers and agents of its subsidiaries, and toassume for itself maximum liability for expenses and damages in connection withclaims against such directors, officers and agents in connection with theirservice to the Company and its subsidiaries, and has further concluded that thefailure to provide such contractual indemnification could result in great harmto the Company and its subsidiaries and the Company’s stockholders.

 

G.             Section 145of the General Corporation Law of Delaware, under which the Company isorganized (“Section 145”), empowers the Company to indemnify itsdirectors, officers, employees and agents by agreement and to indemnify personswho serve, at the request of the Company, as the directors, officers, employeesor agents of other corporations or enterprises, and expressly provides that theindemnification provided by Section 145 is not exclusive.

 

CONFIDENTIAL

 

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H.            TheCompany desires and has requested the Indemnitee to serve or continue to serveas a director, officer or agent of the Company and/or one or more subsidiariesof the Company free from undue concern for claims for damages arising out of orrelated to such services to the Company and/or one or more subsidiaries of theCompany.

 

I.                 Indemniteeis willing to serve, or to continue to serve, the Company and/or one or moresubsidiaries of the Company, provided that he is furnished the indemnityprovided for herein.

 

**AGREEMENT**

 

NOW, THEREFORE, the parties hereto, intending to be legally bound,hereby agree as follows:

 

# 1.               Definitions.

 

## (a)          Agent.  For the purposes of this Agreement, “agent”of the Company means any person who is or was a director, officer, employee orother agent of the Company or a subsidiary of the Company; or is or was servingat the request of, for the convenience of, or to represent the interests of theCompany or a subsidiary of the Company as a director, officer, employee oragent of another foreign or domestic corporation, partnership, joint venture,trust or other enterprise; or was a director, officer, employee or agent of aforeign or domestic corporation which was a predecessor corporation of the Companyor a subsidiary of the Company, or was a director, officer, employee or agentof another enterprise at the request of, for the convenience of, or torepresent the interests of such predecessor corporation.

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## (b)         Expenses.  For purposes of this Agreement, “expenses”include all out-of-pocket costs of any type or nature whatsoever (including,without limitation, all attorneys’ fees and related disbursements), actuallyand reasonably incurred by the Indemnitee in connection with either theinvestigation, defense or appeal of a proceeding or establishing or enforcing aright to indemnification under this Agreement or Section 145 or otherwise;provided, however, that “expenses” shall not include any judgments, fines,ERISA excise taxes or penalties, or amounts paid in settlement of a proceeding.

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## (c)          Proceeding.  For the purposes of this Agreement, “proceeding”means any threatened, pending, or completed action, suit or other proceeding,whether civil, criminal, administrative, or investigative.

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## (d)         Subsidiary.  For purposes of this Agreement, “subsidiary”means any corporation of which more than 50% of the outstanding votingsecurities is owned directly or indirectly by the Company, by the Company andone or more other subsidiaries, or by one or more other subsidiaries.

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# 2.               Agreement toServe.  The Indemnitee agrees toserve and/or continue to serve as agent of the Company, at its will (or underseparate agreement, if such agreement exists), in the capacity Indemniteecurrently serves as an agent of the Company, so long as he is duly appointed orelected and qualified in accordance with the applicable provisions of theBylaws of the Company or any subsidiary of the Company or until such time as hetenders his resignation in writing; provided, however, that nothing containedin this Agreement is intended to create any right to continued employment byIndemnitee.

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# 3.               LiabilityInsurance.

 

## (a)          Maintenance ofD&O Insurance.  The Companyhereby covenants and agrees that, so long as the Indemnitee shall continue toserve as an agent of the Company and thereafter so long as the Indemnitee shallbe subject to any possible proceeding by reason of the fact that the Indemniteewas an agent of the Company, the Company, subject to Section 3(c), shallpromptly obtain and maintain in full force and effect directors’ and officers’liability insurance (“D&O Insurance”) in reasonable amounts fromestablished and reputable insurers.

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## (b)         Rights and Benefits.  In all policies of D&O Insurance, theIndemnitee shall be named as an insured in such a manner as to provide theIndemnitee the same rights and benefits as are accorded to the most favorablyinsured of the Company’s directors, if the Indemnitee is a director; or of theCompany’s officers, if the Indemnitee is not a director of the Company but isan officer; or of the Company’s key employees, if the Indemnitee is not adirector or officer but is a key employee.

 

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## (c)          Limitation onRequired Maintenance of D&O Insurance. Notwithstanding the foregoing, the Company shall have no obligation toobtain or maintain D&O Insurance if the Company determines in good faiththat such insurance is not reasonably available, the premium costs for suchinsurance are disproportionate to the amount of coverage provided, the coverageprovided by such insurance is limited by exclusions so as to provide aninsufficient benefit, or the Indemnitee is covered by similar insurancemaintained by a subsidiary of the Company.

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# 4.               MandatoryIndemnification.  Subject to Section 9below, the Company shall indemnify the Indemnitee as follows:

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## (a)          Successful Defense.  To the extent the Indemnitee has beensuccessful on the merits or otherwise in defense of any proceeding (including,without limitation, an action by or in the right of the Company) to which theIndemnitee was a party by reason of the fact that he is or was an Agent of theCompany at any time, against all expenses of any type whatsoever actually andreasonably incurred by him in connection with the investigation, defense orappeal of such proceeding.

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## (b)         Third Party Actions.  If the Indemnitee is a person who was or is aparty or is threatened to be made a party to any proceeding (other than anaction by or in the right of the Company) by reason of the fact that he is orwas an agent of the Company, or by reason of anything done or not done by himin any such capacity, the Company shall indemnify the Indemnitee against anyand all expenses and liabilities of any type whatsoever (including, but notlimited to, judgments, fines, ERISA excise taxes and penalties, and amountspaid in settlement) actually and reasonably incurred by him in connection withthe investigation, defense, settlement or appeal of such proceeding, providedthe Indemnitee acted in good faith and in a manner he reasonably believed to bein or not opposed to the best interests of the Company and its stockholders,and, with respect to any criminal action or proceeding, had no reasonable causeto believe his conduct was unlawful.

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## (c)          Derivative Actions.  If the Indemnitee is a person who was or is aparty or is threatened to be made a party to any proceeding by or in the rightof the Company by reason of the fact that he is or was an agent of the Company,or by reason of anything done or not done by him in any such capacity, theCompany shall indemnify the Indemnitee against all expenses actually andreasonably incurred by him in connection with the investigation, defense,settlement, or appeal of such proceeding, provided the Indemnitee acted in goodfaith and in a manner he reasonably believed to be in or not opposed to thebest interests of the Company and its stockholders; except that noindemnification under this subsection 4(c) shall be made in respectto any claim, issue or matter as to which such person shall have been finallyadjudged to be liable to the Company by a court of competent jurisdictionunless and only to the extent that the court in which such proceeding wasbrought shall determine upon application that, despite the adjudication ofliability but in view of all the circumstances of the case, such person isfairly and reasonably entitled to indemnity for such amounts which the courtshall deem proper.

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## (d)         Actions whereIndemnitee is Deceased.  If theIndemnitee is a person who was or is a party or is threatened to be made aparty to any proceeding by reason of the fact that he is or was an agent of theCompany, or by reason of anything done or not done by him in any such capacity,and if prior to, during the pendency of after completion of such proceedingIndemnitee becomes deceased, the Company shall indemnify the Indemnitee’sheirs, executors and administrators against any and all expenses andliabilities of any type whatsoever (including, but not limited to, judgments,fines, ERISA excise taxes and penalties, and amounts paid in settlement)actually and reasonably incurred to the extent Indemnitee would have beenentitled to indemnification pursuant to Sections 4(a), 4(b), or 4(c) abovewere Indemnitee still alive.

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## (e)          Notwithstanding theforegoing, the Company shall not be obligated to indemnify the Indemnitee forexpenses or liabilities of any type whatsoever (including, but not limited to,judgments, fines, ERISA excise taxes and penalties, and amounts paid insettlement) for which payment is actually made to or on behalf of Indemniteeunder a valid and collectible insurance policy of D&O Insurance, or under avalid and enforceable indemnity clause, by-law or agreement.

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# 5.               PartialIndemnification.  If the Indemniteeis entitled under any provision of this Agreement to indemnification by theCompany for some or a portion of any expenses or liabilities of any typewhatsoever (including, but not limited to, judgments, fines, ERISA excise taxesand penalties, and amounts paid in settlement) incurred by him

 

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in theinvestigation, defense, settlement or appeal of a proceeding, but not entitled,however, to indemnification for all of the total amount hereof, the Companyshall nevertheless indemnify the Indemnitee for such total amount except as tothe portion hereof to which the Indemnitee is not entitled.

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# 6.               MandatoryAdvancement of Expenses.  Subject to Section 8(a) below,the Company shall advance all expenses incurred by the Indemnitee in connectionwith the investigation, defense, settlement or appeal of any proceeding towhich the Indemnitee is a party or is threatened to be made a party by reasonof the fact that the Indemnitee is or was an agent of the Company.  Indemnitee hereby undertakes to repay suchamounts advanced only if, and to the extent that, it shall be determinedultimately that the Indemnitee is not entitled to be indemnified by the Companyas authorized hereby.  The advances to bemade hereunder shall be paid by the Company to the Indemnitee within twenty(20) days following delivery of a written request therefor by the Indemnitee tothe Company.

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# 7.               Notice and OtherIndemnification Procedures.

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## (a)          Promptly after receiptby the Indemnitee of notice of the commencement of or the threat ofcommencement of any proceeding, the Indemnitee shall, if the Indemniteebelieves that indemnification with respect thereto may be sought from theCompany under this Agreement, notify the Company of the commencement or threatof commencement thereof.

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## (b)         If, at the time of thereceipt of a notice of the commencement of a proceeding pursuant to Section 7(a) hereof,the Company has D&O Insurance in effect, the Company shall give promptnotice of the commencement of such proceeding to the insurers in accordancewith the procedures set forth in the respective policies.  The Company shall thereafter take allnecessary or desirable action to cause such insurers to pay, on behalf of theIndemnitee, all amounts payable as a result of such proceeding in accordancewith the terms of such policies.

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## (c)          In the event the Companyshall be obligated to pay the expenses of any proceeding against theIndemnitee, the Company, if appropriate, shall be entitled to assume thedefense of such proceeding, with counsel approved by the Indemnitee, upon thedelivery to the Indemnitee of written notice of its election so to do.  After delivery of such notice, approval ofsuch counsel by the Indemnitee and the retention of such counsel by theCompany, the Company will not be liable to the Indemnitee under this Agreementfor any fees of counsel subsequently incurred by the Indemnitee with respect tothe same proceeding, provided that (i) the Indemnitee shall have the rightto employ his counsel in any such proceeding at the Indemnitee’s expense; and (ii) if(A) the employment of counsel by the Indemnitee has been previouslyauthorized by the Company, (B) the Indemnitee shall have reasonablyconcluded that there may be a conflict of interest between the Company and theIndemnitee in the conduct of any such defense, or (C) the Company shallnot, in fact, have employed counsel to assume the defense of such proceeding,then the fees and expenses of Indemnitee’s counsel shall be at the expense ofthe Company.

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# 8.               Exceptions.  Any other provision herein to the contrarynotwithstanding, the Company shall not be obligated pursuant to the terms ofthis Agreement:

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## (a)          Claims Initiated byIndemnitee.  To indemnify or advanceexpenses to the Indemnitee with respect to proceedings or claims initiated orbrought voluntarily by the Indemnitee and not by way of defense, unless (i) suchindemnification is expressly required to be made by law, (ii) theproceeding was authorized by the Board, (iii) such indemnification isprovided by the Company, in its sole discretion, pursuant to the powers vestedin the Company under the General Corporation Law of Delaware or (iv) theproceeding is brought to establish or enforce a right to indemnification underthis Agreement or any other statute or law or otherwise as required under Section 145.

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## (b)         Lack of Good Faith.  To indemnify the Indemnitee for any expensesincurred by the Indemnitee with respect to any proceeding instituted by theIndemnitee to enforce or interpret this Agreement, if a court of competentjurisdiction determines that each of the material assertions made by theIndemnitee in such proceeding was not made in good faith or was frivolous; or

 

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## (c)          UnauthorizedSettlements.  To indemnify theIndemnitee under this Agreement for any amounts paid in settlement of aproceeding unless the Company consents to such settlement, which consent shallnot be unreasonably withheld.

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# 9.               Non-exclusivity.  The provisions for indemnification and advancementof expenses set forth in this Agreement shall not be deemed exclusive of anyother rights which the Indemnitee may have under any provision of law, theCompany’s Certificate of Incorporation or Bylaws, the vote of the Company’sstockholders or disinterested directors, other agreements, or otherwise, bothas to action in his official capacity and to action in another capacity whileoccupying his position as an agent of the Company, and the Indemnitee’s rightshereunder shall continue after the Indemnitee has ceased acting as an agent ofthe Company and shall inure to the benefit of the heirs, executors andadministrators of the Indemnitee.

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# 10.         Enforcement.  Any right to indemnification or advancesgranted by this Agreement to Indemnitee shall be enforceable by or on behalf ofIndemnitee in any court of competent jurisdiction if (i) the claim forindemnification or advances is denied, in whole or in part, or (ii) nodisposition of such claim is made within ninety (90) days of requesttherefor.  Indemnitee, in suchenforcement action, if successful in whole or in part, shall be entitled to bepaid also the expense of prosecuting his claim. It shall be a defense to any action for which a claim for indemnificationis made under this Agreement (other than an action brought to enforce a claimfor expenses pursuant to Section 6 hereof, provided that the requiredundertaking has been tendered to the Company) that Indemnitee is not entitledto indemnification because of the limitations set forth in Sections 4 and8 hereof.  Neither the failure of theCorporation (including its Board of Directors or its stockholders) to have madea determination prior to the commencement of such enforcement action thatindemnification of Indemnitee is proper in the circumstances, nor an actualdetermination by the Company (including its Board of Directors or itsstockholders) that such indemnification is improper, shall be a defense to theaction or create a presumption that Indemnitee is not entitled toindemnification under this Agreement or otherwise.

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# 11.         Subrogation.  In the event of payment under this Agreement,the Company shall be subrogated to the extent of such payment to all of therights of recovery of Indemnitee, who shall execute all documents required andshall do all acts that may be necessary to secure such rights and to enable theCompany effectively to bring suit to enforce such rights.

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# 12.         Survival of Rights.

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## (a)          All agreements andobligations of the Company contained herein shall continue during the period Indemniteeis an agent of the Company and shall continue thereafter so long as Indemniteeshall be subject to any possible claim or threatened, pending or completedaction, suit or proceeding, whether civil, criminal, arbitrational,administrative or investigative, by reason of the fact that Indemnitee wasserving in the capacity referred to herein.

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## (b)         The Company shall requireany successor to the Company (whether direct or indirect, by purchase, merger,consolidation or otherwise) to all or substantially all of the business orassets of the Company, expressly to assume and agree to perform this Agreementin the same manner and to the same extent that the Company would be required toperform if no such succession had taken place.

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# 13.         Interpretation of Agreement.  It is understood that the parties heretointend this Agreement to be interpreted and enforced so as to provideindemnification to the Indemnitee to the fullest extent permitted by lawincluding those circumstances in which indemnification would otherwise bediscretionary.

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# 14.         Severability.  If any provision or provisions of thisAgreement shall be held to be invalid, illegal or unenforceable for any reasonwhatsoever, (i) the validity, legality and enforceability of the remainingprovisions of the Agreement (including without limitation, all portions of anyparagraphs of this Agreement containing any such provision held to be invalid,illegal or unenforceable, that are not themselves invalid, illegal orunenforceable) shall not in any way be affected or impaired thereby, and (ii) tothe fullest extent possible, the provisions of this Agreement (including,without limitation, all portions of any paragraph of this Agreement containingany such provision held to be invalid, illegal or unenforceable, that are notthemselves invalid, illegal or unenforceable) shall be construed so as to giveeffect to the intent manifested by the provision held invalid, illegal orunenforceable and to give effect to Section 13 hereof.

 

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# 15.         Modification andWaiver.  No supplement, modificationor amendment of this Agreement shall be binding unless executed in writing byboth of the parties hereto.  No waiver ofany of the provisions of this Agreement shall be deemed or shall constitute awaiver of any other provisions hereof (whether or not similar) nor shall suchwaiver constitute a continuing waiver.

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# 16.         Notice.  All notices, requests, demands and othercommunications under this Agreement shall be in writing and shall be deemedduly given (i) if delivered by hand and receipted for by the partyaddressee or (ii) if mailed by certified or registered mail with postageprepaid, on the third business day after the mailing date.  Addresses for notice to either party are asshown on the signature page of this Agreement, or as subsequently modifiedby written notice.

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# 17.         Governing Law.  This Agreement shall be governed exclusivelyby and construed according to the laws of the State of Delaware as applied tocontracts between Delaware residents entered into and to be performed entirelywithin Delaware.

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The parties hereto have entered into this Indemnity Agreement effectiveas of the date first above written.

 

 
|   | INTELLISYNC CORPORATION   |
|--------|---------------------------|
|   | (a Delaware  corporation) |
|   |                      |
|   |                      |
|   | By:                       | /s/ KEITH KITCHEN        |   |
|   |                      |   |
|   | Name:                     | Keith Kitchen |
|   |                      |   |
|   | Title:                    | CAP |
|   |                      |   |
|   | Date:                     | 11/14/05 |   |
|   |                      |   |
|   | Address:                  | 2550 North First  Street, Suite 500 |
|   |                      | San Jose, CA 95131 |
|   |                      |
|   |                      |
|   | INDEMNITEE                |
|   |                      |
|   |                      |
|   | By:                       | /s/ RIP GERBER |   |
|   |                      |   |
|   | Name:                     | Rip Gerber |
|   |                      |   |
|   | Date:                     | 11/15/05 |   |
|   |                      |   |
|   | Address:                  |   |   |
|   |                      |   |   |
|   |                      |   |   |
|        |                           |  |  |  |

 

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