Exhibit 10.38


 


Keith Cornell


 


 


Re:          Compensation
for Board Service and Change of Control Agreement


 


Dear Keith:


 


Thank you for your
continuing service as a member of the Board of Directors of Intellisync
Corporation (“Intellisync” or the “Company”). 
As we have discussed, Intellisync would like you to continue your
service on its Board of Directors and its committees, and has agreed to
continue and extend certain benefits to you. 
Especially in light of recent legislation that has given rise to increasing
involvement by our Board, Intellisync is pleased to offer you the benefits
described in this letter.  Capitalized
terms are defined on Schedule 1, attached.


 


1.             Compensation
for Board Participation and for Attendance at Board and Committee Meetings.   For so long as you remain a non-employee member
of the Board, you shall receive compensation on the terms and conditions consistent
with similarly situated non-employee members of the Board as described on Schedule 2,
attached.


 


2.             Acceleration
of Vesting.  As you know, Intellisync
has periodically granted you options to purchase shares of its Common
Stock.  Upon a Change of Control, you
will automatically receive accelerated vesting of all outstanding stock options
then held by you, and you shall be released from any outstanding Company
repurchase options on any shares of Common Stock then held by you, including
shares purchased after the date of this letter.


 


3.             Successors.  Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company’s business and/or
assets shall assume the obligations under this letter and agree expressly to
perform the obligations under this letter in the same manner and to the same
extent as the Company would be required to perform such obligations in the
absence of a succession.  For all
purposes under this letter, the term “Company” shall include any successor to
the Company’s business and/or assets which executes and delivers the assumption
agreement described in this Section 3 or which becomes bound by the terms
of this letter by operation of law.


 


4.             Law
Governing; Arbitration.  This letter
shall be governed by and construed in accordance with the laws of the State of
California. Any dispute or controversy arising under or in connection with this
letter shall be settled exclusively in arbitration conducted in Santa Clara
County, California, in accordance with the rules of the American
Arbitration Association then in effect. 
Judgment may be entered on the arbitrator’s award in any court having
jurisdiction.  Punitive damages shall not
be awarded.  In any arbitration
proceeding, the party determined to be the prevailing party will be entitled to
receive, in addition to any other award, its attorneys’ fees and expenses of
the proceeding.


 





















 


5.             Employment
and Income Taxes.  All payments made
pursuant to this letter will be subject to withholding of applicable employment
and income taxes, if any.


 


Of
course, each member of the Board serves at the pleasure of the stockholders and
nothing in letter is intended to confer any rights upon you to remain a member
of the Board.  This letter supercedes and
replaces any previous agreements between you and the Company regarding the
subject matter hereof.


 


By
your signature below, you indicate that you agree to the terms set out in this
letter.


 


Very
truly yours,


 


 


INTELLISYNC
Corporation


 


 


	
  By:

  	
  /s/ KEITH KITCHEN

  	
   

  
	
  Keith Kitchen

  
	
  Chief Financial Officer

  
	
   

  
	
   

  
	
  ACKNOWLEDGED AND
  AGREED:

  
	
   

  
	
   

  
	
  /s/ KEITH CORNELL

  	
   

  
	
  Keith Cornell

  
	
   

  
	
   

  
	
  Date:

  	
  8/24/05

  	
   

  
				



 


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SCHEDULE 1


 


Definition of
Terms.  The following
terms referred to in this letter shall have the following meanings:


 


“Change
of Control” means the occurrence of any of the following
events:


 


(a) 
Any “person” (as such term is used in Sections 13(d) and 14(d) of the
Securities Exchange Act of 1934, as amended), excluding existing beneficial
owners as of the date of this letter, is or becomes the “beneficial owner” (as
defined in Section 13d-3 of said Act), directly or indirectly, of
securities of the Company representing 50% or more of the total voting power
represented by the Company’s then outstanding voting securities, excluding
conversion of any convertible securities issued as of the date of this letter;


 


(b) 
The composition of the Board of Directors changes during any period of 36
months that follows the date of this letter, such that individuals who, at the
beginning of the period, were members of the Board of Directors (the “Continuing
Directors”), cease for any reason to constitute at least a majority thereof;
unless at least 50% of the Continuing Directors has either (i) approved
the election of the new Directors, (ii) if the election of the new
Directors is voted on by stockholders, recommended that the stockholders vote
for approval, or (iii) otherwise determined that such change in
composition does not constitute a Change of Control, even if the Continuing
Directors do not constitute a quorum of the whole Board (it being understood
that this requirement shall not be capable of satisfaction unless there is at
least one Continuing Director); or


 


(c) 
The stockholders of the Company approve a merger or consolidation of the
Company with any other corporation, other than a merger or consolidation which
would result in the voting securities of the Company outstanding immediately
prior thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at least 50% of
the total voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the stockholders of the Company approve a plan of complete liquidation
of the Company or an agreement for the sale or disposition by the Company of
all or substantially all of the Company’s assets.


 


Any other provision of
this schedule notwithstanding, the term Change of Control shall not
include either of the following events undertaken at the election of the
Company:


 


(i) 
Any transaction, the sole purpose of which is to change the state of the
Company’s incorporation; or


 


(ii) 
A transaction, the result of which is to sell all or substantially all of the
assets of the Company to another corporation (the “surviving corporation”)
provided that the surviving corporation is owned directly or indirectly by the
stockholders of the Company immediately following such transaction in
substantially the same proportions as their ownership of the Company’s common
stock immediately preceding such transaction.


 


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SCHEDULE 2


 


Schedule of Non-Employee Director Compensation


 


1.     Intellisync shall pay each non-employee Board
member annual compensation in the amount of Twenty Thousand Dollars
($20,000),  to be paid in equal quarterly
installments, commencing on August 1, 2005, and continuing every year
thereafter; provided in each case that the Director’s service shall not have
terminated for any reason (including death or disability) prior to any such
quarterly payment date.


 


2.     Intellisync shall pay the non-employee
Chairman of the Board an additional Fifteen Thousand Dollars ($15,000) to be
paid in equal quarterly installments, commencing on August 1, 2005, and
continuing every year thereafter; provided in each case that the Director’s
service as Chairman of the Board shall not have terminated for any reason
(including death or disability) prior to any such quarterly payment date.


 


3.     Intellisync shall pay the non-employee Board
Committee Chairman of the Audit Committee an additional Twenty Thousand Dollars
($20,000) annually to be paid in equal quarterly installments, commencing on August 1,
2005, and continuing every year thereafter; provided in each case that the
Director’s service as Board Committee Chairman shall not have terminated for
any reason (including death or disability) prior to any such quarterly payment
date.


 


4.     Intellisync shall pay every other
non-employee Board Committee member of the Audit Committee an additional Seven
Thousand Five Hundred Dollars ($7,500) annually to be paid in equal quarterly
installments, commencing on August 1, 2005, and continuing every year thereafter;
provided in each case that the Director’s service as Board Committee member
shall not have terminated for any reason (including death or disability) prior
to any such quarterly payment date.


 


5.     Intellisync shall pay the non-employee Board
Committee Chairman of the Compensation Committee an additional Seven Thousand
Five Hundred Dollars ($7,500) annually to be paid in equal quarterly
installments, commencing on August 1, 2005, and continuing every year
thereafter; provided in each case that the Director’s service as Board
Committee Chairman shall not have terminated for any reason (including death or
disability) prior to any such quarterly payment date.


 


6.     Intellisync shall pay every other
non-employee Board Committee member of the Compensation Committee an additional
Five Thousand Dollars ($5,000) annually to be paid in equal quarterly
installments, commencing on August 1, 2005, and continuing every year
thereafter; provided in each case that the Director’s service as Board
Committee member shall not have terminated for any reason (including death or
disability) prior to any such quarterly payment date.


 


7.     Intellisync shall pay the non-employee Board
Committee Chairman of the Nomination and Governance Committee an additional
Seven Thousand Five Hundred Dollars ($7,500) annually to be paid in equal quarterly
installments, commencing on August 1, 2005, and continuing every year
thereafter; provided in each case that the Director’s service as Board
Committee Chairman shall not have terminated for any reason (including death or
disability) prior to any such quarterly payment date.


 


8.     Intellisync shall pay every other
non-employee Board Committee member of the Nomination and Governance Committee
an additional Five Thousand Dollars ($5,000) annually to be paid


 


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in equal quarterly
installments, commencing on August 1, 2005, and continuing every year
thereafter; provided in each case that the Director’s service as Board
Committee member shall not have terminated for any reason (including death or
disability) prior to any such quarterly payment date.


 


9.     Intellisync shall pay the non-employee Board
Committee Chairman of the Special Strategy Committee an additional Twenty
Thousand Dollars ($20,000) with Ten Thousand Dollars ($10,000) due upon the
establishment of the Committee, and the final Ten Thousand Dollars ($10,000) due
upon the termination of the Special Strategy Committee.


 


10.   Intellisync shall pay every other
non-employee Board Committee member of the Special Strategy Committee an
additional Ten Thousand Dollars ($10,000) with Five Thousand Dollars ($5,000)
due upon the establishment of the Committee, and the final Five Thousand
Dollars ($5,000) due upon the termination of the Special Strategy Committee.


 


11.   Intellisync shall pay each non-employee Board
member One Thousand Dollars ($1,000) cash upon adjournment of each regularly
scheduled Board meeting that such Board member attends in person and in
entirety.


 


12.   Intellisync shall pay each non-employee Board
member Five Hundred ($500) cash upon adjournment of each regularly scheduled
Board meeting that such Board member is either unable to attend in person, or
is not required to attend in person, but otherwise attends telephonically and
in entirety.


 


13.   Intellisync shall pay each non-employee Board
Committee Chairperson or member cash in the amount shown in the following table
under the columns titled “In Person” upon adjournment of each regularly
scheduled meeting of each Committee of the Board of Directors that such Board
Committee member attends in person and in entirety or cash in the amount shown
in the following table under the columns titled “By Phone” within a reasonable
time upon adjournment of each regularly scheduled meeting of each Committee of
the Board of Directors that such Board Committee member is unable to attend in
person, or is not required to attend in person, but otherwise attends
telephonically and in entirety.  The
Corporation shall make reasonable efforts to schedule Committee meetings
immediately prior to or after regularly scheduled Board meetings.


 


	
   

  	
   

  	
  Audit Committee

  	
   

  	
  Compensation

  Committee

  	
   

  	
  Nomination and

  Governance

  Committee

  	
   

  	
  Special Strategy

  Committee

  	
   

  
	
   

  	
   

  	
  In

  Person

  	
   

  	
  By

  Phone

  	
   

  	
  In

  Person

  	
   

  	
  By

  Phone

  	
   

  	
  In

  Person

  	
   

  	
  By

  Phone

  	
   

  	
  In

  Person

  	
   

  	
  By

  Phone

  	
   

  
	
  Chairperson

  	
   

  	
  $

  	
  1,500

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  1,000

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  1,000

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  1,000

  	
   

  	
  $

  	
  750

  	
   

  
	
  Member

  	
   

  	
  $

  	
  1,000

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  500

  	
   

  	
  $

  	
  750

  	
   

  	
  $

  	
  500

  	
   

  



 


14.   Intellisync shall pay and reimburse the
non-employee Board members for reasonable expenses, including travel and
lodging, in conjunction with Board and Committee meeting attendance, as well as
for activities and customer meetings as requested by Intellisync management.


 


Intellisync
reserves the right to change the compensation set forth in this schedule at
any time, by resolution of the Board of Directors, or a duly authorized
committee thereof.


 


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