Exhibit
10.23


 


August 24, 2005


 


Rip Gerber


 


Re:          Change
of Control Agreement


 


Dear Rip:


 


As we
have discussed, Intellisync Corporation (the “Company”) has agreed to extend
certain benefits to you for so long as you remain the Chief Marketing Officer
of the Company, or act in a similar capacity with a different title for the
Company.  This letter sets out the terms
of our agreement.  Capitalized terms are
defined on Schedule 1, attached.


 


1.     Acceleration
of Vesting. Upon a Change of Control, you will automatically receive twelve
(12) months of accelerated vesting of all outstanding stock options then held
by you at the time of a Change of Control; provided that your service shall not
have terminated for any reason (including without limitation, for death or disability)
prior to any such Change of Control.  If
your service with the Company terminates for any reason (including without
limitation, for death or disability) prior to the Change of Control date, you
shall not be entitled to receive accelerated vesting of stock options.  If your service with the Company or the
Company’s successor upon a Change of Control is terminated by the Company or
the Company’s successor for reasons other than “Good Reason” (as hereinafter
defined) within the initial twelve (12) month period following the Change of
Control date, you will automatically receive accelerated vesting on one hundred
percent (100%) of all outstanding stock options then held by you at the time of
your termination.


 


2.     Severance
Benefits.  If the Company or the
Company’s successor other than for Good Reason, then you shall be entitled to
receive as a severance, six (6) months continuation of your base salary,
based upon your base salary as of the date your employment ceases, provided
that you first sign a comprehensive release of claims in favor of the Company
or the Company’s successor, substantially in the form attached hereto as Schedule 2,
and that the release becomes effective according to its terms.  If your employment with the Company of the
Company’s successor is terminated within the initial twelve (12) month period
following a Change of Control for any reason other than Good Reason, the
Company agrees that in the event you elect to continue health insurance under
Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company shall pay
any COBRA premiums for a period not to exceed six (6) months.  Employee’s participation in all other
benefits and incidents of employment with Company, except as provided herein,
shall cease on the Termination Date. 
Employee shall cease accruing employee benefits, including, but not
limited to, vacation time and paid time off as of the Termination Date.


 


As used herein, a
termination for “Good Reason” means a termination for any of the following
reasons:  fraud, theft, dishonesty,
conviction of a felony, or willful misconduct.


 


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.


 


6.     At-Will Employment. 
Of course, your employment with the Company will continue to be on an “at
will” basis, meaning that either you or the Company may terminate your
employment at any time for any reason or no reason, without further obligation
or liability.  The Company also reserves
the right to modify or amend the terms of your employment (other than those set
forth in this letter) at any time for any reason.  This policy of at-will employment is the
entire agreement as to the subject matter hereof, and may only be modified in
an express written agreement signed by the Chief Executive Officer of the
Company.


 


7.     Termination. 
Notwithstanding anything to the contrary contained herein, this
Agreement shall automatically terminate in its entirety should you cease to act
as the Chief Marketing Officer of the Company, or in a similar capacity with a
different title of the Company prior to a Change of Control.


 


8.     Modification and Amendment. 
Any modifications and amendments to this Agreement shall be invalid
unless in writing signed by both parties. This Agreement supersedes all prior
discussions and agreements between the parties regarding the subject matter
hereto.


 


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


 


 


Very truly yours,


 


 


	
  INTELLISYNC CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/
  WOODSON HOBBS

  	
   

  
	
  Name:

  	
  Woodson Hobbs

  	
   

  
	
  Title:

  	
  President and CEO

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  RIP GERBER

  	
   

  
	
  Name:

  	
  Rip Gerber

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  8/24/05

  	
   

  



 





















 


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.


 





















 


SCHEDULE 2


 


Release
Agreement 


 


This Release Agreement
(the “Agreement”), dated as of         ,
is entered into by and between Robert “Rip” Gerber (“Employee”) and Intellisync
Corporation (the “Company”).


 


Whereas, Employee and the
Company entered into that certain Change of Control Agreement dated August 24,
2005, re: acceleration of certain stock options and severance benefit (the “Change
of Control Agreement”);


 


Whereas, pursuant to the
Change of Control Agreement, Employee is entitled to certain stock option
acceleration and salary and benefits continuation payments if his employment is
terminated other than for “Good Reason” (as defined in the Change of Control
Agreement) and he first provides a comprehensive release of claims to the
Company;


 


Whereas, Employee and the
Company desire to implement the stock option acceleration and salary and
benefits continuation payments contemplated by the Change of Control Agreement
by entering into this Agreement;


 


THEREFORE, for good and
valid consideration the sufficiency of which Employee and the Company hereby
acknowledge, Employee and the Company hereby agree as follows:


 


1.     Employee
hereby releases the Company and its shareholders, officers, directors,
employees, and legal successors (collectively, the “Releasees”), from any and
all claims, liabilities, demands and causes of action, whether known or
unknown, which Employee has, may have or claim to have against any of the
Releasees as of the date Employee executes this Agreement, including but not
limited to all claims, liabilities, demands and causes of action which relate
to or arise out of Employee’s employment with the Company or the termination of
Employee’s employment with the Company.


 


2.     Employee
hereby agrees not to file any lawsuit or other action to assert such claims,
which include, but are not limited to, any claims of wrongful termination,
breach of contract, fraud, infliction or emotional distress or any claims of
age, race, sex, disability, national origin or other discrimination or
harassment under federal, state or local laws prohibiting such discrimination
or harassment.


 


2.     Employee
has read Section 1542 of the Civil Code of the State of California, which
states in its entirety:


 


A general
release does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor.


 


Employee hereby waives any right or benefit he has
under Section 1542 or any similar law of any other jurisdiction, to the
full extent that he may lawfully waive such rights with respect to his release
of claims.  Employee acknowledges that he
is releasing all known and unknown claims by signing this document.


 


3.     Employee
specifically agrees that this Agreement releases any claims he might under the
Age Discrimination in Employment Act (“ADEA”), and that he specifically agrees
not to file any lawsuit or other action to assert such a claim.


 





















 


4.     Employee
has carefully read and fully understands this Agreement and the release
contained herein and has not relied on any statement, written or oral, which is
not set forth in this document.


 


5.     Employee
will be provided up to 21 days from the date this Agreement is presented to him
to accept the terms of this Agreement, although he may accept it at any time
within those 21 days.  Employee is
advised, if he wishes, to consult with an attorney regarding this
Agreement.  The Company agrees that
Employee’s ADEA release of claims does not apply to any rights or claims that
may arise under the ADEA after the Effective Date (as hereinafter defined) of
this Agreement.


 


6.     Employee
may accept this Agreement by dating and signing it and returning it to the
attention of the Chief Executive Officer at Company.  Once Employee does so, he will still have an
additional 7 days in which to revoke his acceptance by sending to Company, to
the attention of the Chief Executive Officer, via fax at (408) 321-3893, and
also by first class mail, a written statement of revocation.  If Employee does not revoke, the eighth day
after the date of his acceptance will be the “Effective Date” of this
Agreement.


 


	
  Date: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Rip Gerber

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date: 

  	
   

  	
   

  	
  INTELLISYNC CORPORATION