Exhibit 10.20


 


EXECUTION COPY


 


SEVERANCE
AGREEMENT AND MUTUAL RELEASE


RECITALS


This
Severance Agreement and Mutual Release (“Agreement”) is made by and between
Said Mohammadioun (“Executive”) and Intellisync Corporation (“Company”)
(collectively referred to as the “Parties” and individually a “Party”):


WHEREAS,
Executive has been a senior Executive and member of the Company’s Board of
Directors since December 29, 2003;


WHEREAS,
Company and Executive have entered into Stock Option Agreements dated December
29, 2003, December 22, 2004, and March 1, 2004, granting Executive the option
to purchase shares of Company’s common stock subject to the terms and
conditions of Company’s 2002 Stock Plan, as amended, and the Stock Option
Agreement (collectively, the “Stock Agreements”)


WHEREAS,
the Executive has submitted his resignation from the Company as the Company’s
Chief Technology Officer effective October 14, 2005; and


WHEREAS,
the Parties, and each of them, wish to resolve any and all disputes, claims,
complaints, grievances, charges, actions, petitions and demands that each Party
may have against the other Party arising or in any way related to Executive’s
employment with, or separation from, Company;


NOW
THEREFORE, in consideration of the promises made herein, the Parties hereby
agree as follows:


AGREEMENT
AND COVENANTS


1.             Termination of Employment.  Company and Executive acknowledge and agree
that Executive’s resignation from the Company is effective October 14, 2005
(the “Termination Date”).


2.             Consideration.


(a)           Severance
Payments.  In consideration for
executing this Agreement, Company agrees to pay Executive as severance pay, the
equivalent of Executive’s base salary through December 31, 2005, less
applicable withholding, in accordance
with the Company’s regular payroll practices. 
The Company shall not be obligated to make any such payment until after
the Effective Date.  Executive
acknowledges that Company will issue to him a Form W-2 in connection with such
payments.


(b)           Stock.  Notwithstanding anything to the contrary in
the Stock Agreements, the Parties agree that for purposes of determining the
number of shares of the Company’s common stock which Executive is entitled to
purchase from the Company pursuant to the exercise of outstanding options,
Executive shall, as of the Termination Date, be vested as to that number of
option shares as to which Executive would have been vested under the


 





















 


Stock
Option Agreements had Executive remained employed with the Company through
December 31, 2005 (collectively, the “Vested Option Shares”).  The Parties agree that as of the Termination
Date, the vested Option Shares total Two Hundred Forty-Five Thousand Two
Hundred Twenty (245,220) shares (which includes the additional vesting
described in the preceding sentence).  To
the extent option shares are not vested on the Termination Date, they shall be
treated in accordance with the Stock Agreements upon the Termination Date.  Notwithstanding anything to the contrary in
the Stock Agreements, Executive shall have the right to exercise his vested
stock options until (6) months following the Termination Date (April 14, 2006).


(c)           Benefits.
Executive’s health insurance benefits shall cease as of October 31, 2005,
subject to Executive’s right to continue his health insurance under Consolidated
Omnibus Budget Reconciliation Act (“COBRA”).  The Company agrees that in
the event Executive elects COBRA continuation coverage, the Company shall pay
any COBRA premiums for Executive, Executive’s spouse and Executives dependent
children for a period through December 31, 2005, unless Executive obtains
comparable coverage with a new employer prior to the expiration of said period
(in which event Executive agrees to immediately notify Company of said
event).  Executive’s participation in all
other benefits and incidents of employment with Company, except as provided
herein, shall cease on the Termination Date. 
Executive shall cease accruing employee benefits, including, but not
limited to, vacation time and paid time off as of the Termination Date.


(d)           Office
Email Access and Laptop Computer. 
Company agrees that until December 31, 2005, Executive shall continue to
have access to his Company email, calendar, contacts and other electronic
files.  In addition, Company shall, upon
request by Executive, sell to the Executive the laptop computer used by
Executive as an employee at a price equal to the fully depreciated book value
of such laptop computer on the books of the Company..


(e)           Expense
Reimbursement.  Provided Executive
submits appropriate documentation by October 31, 2005, the Company agrees to
reimburse his reasonable business expenses in accordance with Company policy.


3.             Confidential Information.  Executive shall continue to maintain the
confidentiality of all confidential and proprietary information of Company and
shall continue to comply with the terms and conditions of the Noncompete
Agreement.  Prior to the Termination
Date, unless earlier requested by the Company, Executive shall return all of
Company’s property and confidential and proprietary information in his
possession to Company.


4.             Payment
of Salary.  Not later than the
Termination Date, the Company shall deliver to Executive a check representing
all wages due and owing as of that date (other than the salary continuation
payments required under Section 2(a)), including any accrued vacation pay.  Executive hereby acknowledges and represents
that upon receipt of payment in full of all payments required under Section 2,
above, the Company shall have then paid all salary, wages, bonuses, accrued
vacation, commissions and any and all other monetary benefits due to Executive
through the Termination Date.


 


 


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5.             Release of Claims by Executive.  Executive agrees that the foregoing
consideration represents settlement in full of all outstanding obligations owed
to Executive by Company and its officers, directors, managers, supervisors,
agents and employees relating to his employment by the Company.  Executive, on his own behalf, and on behalf of
his respective heirs, family members, executors, agents, and assigns, hereby
fully and forever releases Company and its officers, directors, managers,
agents, employees, investors, stockholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns,
from, and agrees not to sue concerning, any claim, duty, obligation or cause of
action relating to any matters of any kind, whether presently known or unknown,
suspected or unsuspected, that Executive may possess arising from any
omissions, acts or facts that have occurred up until and including the
Effective Date of this Agreement relating to his employment by the Company and
the termination thereof including, without limitation:


(a)           any
and all claims relating to or arising from Executive’s employment relationship
with Company and the termination of that relationship;


(b)           any
and all claims relating to, or arising from, Executive’s right to purchase, or
actual purchase or sale of shares of capital stock of Company, including,
without limitation, any claims for fraud, misrepresentation, breach of
fiduciary duty, breach of duty under applicable state corporate law, and
securities fraud under any state or federal law;


(c)           any
and all claims under the law of any jurisdiction including, but not limited to,
wrongful discharge of employment; constructive discharge from employment;
termination in violation of public policy; discrimination; breach of contract,
both express and implied; breach of a covenant of good faith and fair dealing,
both express and implied; promissory estoppel; negligent or intentional
infliction of emotional distress; negligent or intentional misrepresentation;
negligent or intentional interference with contract or prospective economic
advantage; unfair business practices; defamation; libel; slander; negligence;
personal injury; assault; battery; invasion of privacy; false imprisonment; and
conversion;


(d)           any
and all claims for violation of any federal, state or municipal statute,
including, but not limited to, Title VII of the Civil Rights Act of 1964, the
Civil Rights Act of 1991, the Age Discrimination in Employment Act of 1967, the
Americans with Disabilities Act of 1990, the Sarbanes-Oxley Act, the Fair Labor
Standards Act, the Employee Retirement Income Security Act of 1974, The Worker
Adjustment and Retraining Notification Act, Older Workers Benefit Protection
Act; the California Fair Employment and Housing Act, and the California Labor
Code;


(e)           any
and all claims for violation of the federal, or any state, constitution;


(f)            any
and all claims arising out of any other laws and regulations relating to
employment or employment discrimination;


 


 


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(g)           any
claim for any loss, cost, damage, or expense arising out of any dispute over
the non-withholding or other tax treatment of any of the proceeds received by
Executive as a result of this Agreement; and


(h)           any
and all claims for attorneys’ fees and costs.


Company
and Executive agree that the release set forth in this section shall be and
remain in effect in all respects as a complete general release as to the
matters released.  However, this release
does not extend to any obligations under this Agreement.  Notwithstanding the foregoing, if Company breaches
this Agreement (including, without limitation, the payment obligations of
Company hereunder), then this release shall be deemed to be null and void and
of no force or effect and any other obligations of the Executive hereunder
shall be deemed to terminate at such time.


6.             Acknowledgement of Waiver of
Claims Under ADEA.  Executive
acknowledges that he is waiving and releasing any rights he may have under the
Age Discrimination in Employment Act of 1967 (“ADEA”) and that this waiver and
release is knowing and voluntary. 
Executive and the Company agree that this waiver and release does not
apply to any rights or claims that may arise under ADEA after the Effective
Date of this Agreement.  Executive
acknowledges that the consideration given for this waiver and release Agreement
is in addition to anything of value to which Executive was already
entitled.  Executive further acknowledges
that he has been advised by this writing that


(a)           he
should consult with an attorney prior to executing this Agreement;


(b)           he
has up to twenty-one (21) days within which to consider this Agreement;


(c)           he
has seven (7) days following his execution of this Agreement to revoke the
Agreement;


(d)           this
Agreement shall not be effective until the revocation period has expired; and


(e)           nothing
in this Agreement prevents or precludes Executive from challenging or seeking a
determination in good faith of the validity of this waiver under the ADEA, nor
does it impose any condition precedent, penalties or costs from doing so,
unless specifically authorized by federal law.


6A.          Release
of Claims by Company.  Company, on
its own behalf, and on behalf of its respective officers, directors, managers,
agents, employees, investors, stockholders, administrators, affiliates,
divisions, subsidiaries, predecessor and successor corporations, and assigns
forever releases Employee and his heirs, family members, executors, agents, and
assigns from, and agrees not to sue concerning, any claim, duty, obligation or
cause of action relating to any matters of any kind, whether presently known or
unknown, suspected or unsuspected, that Company may possess arising from any
omissions, acts or facts that have occurred up until and including the
Effective Date of this Agreement relating to Executive’s employment by the
Company and the termination thereof including, without limitation:


 


 


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(a)           any
and all claims relating to or arising from Employee’s employment relationship
with Company and the termination of that relationship;


(b)           any
and all claims under the law of any jurisdiction including, but not limited to,
breach of contract, both express and implied; breach of a covenant of good
faith and fair dealing, both express and implied; promissory estoppel;
negligent or intentional misrepresentation; breach of fiduciary duty; breach of
duty of loyalty; negligent or intentional interference with contract or
prospective economic advantage; unfair business practices; defamation; libel;
slander; negligence; conversion, and any and all claims for violation of any
federal or state constitution and federal, state or municipal statute,
including, but not limited to, the California Business & Professions Code,
or similar laws; and


(c)           any
and all claims for attorneys’ fees and costs.


Company
and Employee agree that the release set forth in this section shall be and
remain in effect in all respects as a complete general release as to the
matters released.  Notwithstanding, the
Parties agree that the Company’s release in this paragraph 6A does not apply to
any misappropriation of Company trade secret information nor to any criminal
conduct against the Company for which Executive may have been convicted such as
fraud or embezzlement, and that it similarly does not extend to any obligations
incurred under this Agreement. Notwithstanding the foregoing, if Executive
breaches this Agreement, then this release shall be deemed to be null and void
and of no force or effect and any other obligations of the Company hereunder
shall be deemed to terminate at such time.


7.             Civil Code Section 1542.  The Parties represent that they are not aware
of any claim by either of them other than the claims that are released by this
Agreement.  Executive and Company
acknowledge that they have each been advised by legal counsel and are familiar
with the provisions of California Civil Code Section 1542, which provides as
follows:


A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE,
WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER
SETTLEMENT WITH THE DEBTOR.


Each
of the Parties, being aware of said code section, agrees to expressly waive any
rights he or it may have thereunder, as well as under any other statute or
common law principles of similar effect.


7.A.         Assistance
to Company.  Executive
agrees to render reasonable transition assistance to Company, including, but
not limited to, responding to reasonable requests from the Company’s Board of Directors,
Chief Executive Officer, Chief Financial Officer, or the Company’s legal
counsel in connection with any and all existing or future litigation or
procedures to perfect the Company’s intellectual property rights.  Executive also agrees to furnish upon
reasonable request, information necessary in order to assist the Company in 


 


 


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meeting the Company’s reporting requirements and Executive’s continuing
Section 16 reporting obligations on a timely manner and as prescribed by the
then current SEC and/or applicable exchange rules.


8.             Insider Status.


(a)           Executive
acknowledges that prior to the Termination Date, he will continue to have be a “Section
16 Individual” as defined under Company’s Insider Trading Policy, as amended
through the date hereof, a copy of which Executive acknowledges he has
previously received.  From the date
Executive executes this Agreement through the Termination Date, Company shall
take reasonable efforts to not make Executive privy to material, not-public
information regarding Company of which Executive is not already aware.  The Parties agree that following the
Termination Date, Executive will no longer be a Section 16 Individual.


(b)           Notwithstanding
the foregoing, Executive acknowledges and agrees that (i) he shall be subject
to all applicable laws with respect to trading on material, nonpublic
information regarding Company and (ii) he, and not Company, shall be
responsible for all reporting obligations that Executive may have under Section
16 of the Securities Exchange Act of 1934, as amended (“Section 16” and the “Exchange
Act” respectively).


(c)           Executive
shall continue to be covered by all indemnification provisions applicable to
officers of the Company pursuant to the Company’s charter and by-laws and
pursuant to any indemnification agreements or programs for the benefit of
officers or directors of the Company. 
The rights of Executive under this paragraph 8(c) shall survive and be
applicable for so long as Executive may be subject to any claim, demand, action
or cause of action, liability, cost or expense in respect of which this
paragraph is intended to protect and indemnify him.


9.             No Pending or Future Lawsuits.  The Parties each represent that they have no
lawsuits, claims, or actions pending in their name, or on behalf of any other
person or entity, against the other party or in the case of Executive, against
any officer or director of the Company. 
The Parties also each represent that they do not intend to bring any
claims on their own behalf or on behalf of any other person or entity against
the other Party or in the case of Executive, against any officer or director of
the Company.


10.           Confidentiality.  The Parties each acknowledge that the other’s
agreement to keep the terms and conditions of this Agreement confidential was a
material factor on which all parties relied in entering into this Agreement.
Each of the Parties agrees to use his or its best efforts to maintain in
confidence the existence of this Agreement, the contents and terms of this
Agreement, and the consideration for this Agreement (hereinafter collectively
referred to as “Settlement Information”). Each of the Parties agrees to take
every reasonable precaution to prevent disclosure of any Settlement Information
to third parties, and agrees that there will be no publicity, directly or
indirectly, concerning any Settlement Information.  Each of the Parties agrees to take every
precaution to disclose Settlement Information only to those attorneys,
accountants, governmental entities, and family members who have a reasonable
need to know of such Settlement Information. 
Notwithstanding, the Parties agree that with respect to the


 


 


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Company’s obligations
pursuant to the provisions of this paragraph, they shall extend only to the
Company’s executive officers and members of the Board of Directors, and then
only for so long as they are executives or directors of the Company.  The foregoing provisions of this paragraph 10
shall not be applicable to any legally required disclosure or in the event and
after any such legally required disclosure. 
The Company shall give Executive reasonable opportunity to comment on
any press release or other public disclosures that the Company in good faith
determines to release concerning Executive’s departure from the Company.


11.           No Cooperation.  Executive agrees that he will not encourage,
counsel or assist any attorneys or their clients in the presentation or
prosecution of any disputes, differences, grievances, claims, charges, or
complaints by any third party against the Company unless under a subpoena or
other court order to do so.  Executive
shall inform the Company in writing within 10 days of receiving any such
subpoena or other court order.


12.           Non-Disparagement.  Each of the Parties agrees to refrain from
any defamation, libel or slander of the Releasees, and any tortious
interference with the contracts, relationships and prospective economic
advantage of the other.  The Company agrees
that its executive officers and members of the Board of Directors will refrain
from any disparagement, criticism, defamation, slander of Executive, or
tortious interference with the contracts and relationships of Executive for so
long as they are Executives or Directors of the Company.  Any inquiry by potential future employers of
Executive with respect to Executive’s employment by the Company, shall be
directed to Cheryl Borgonia, Director of Human Resources.  The Company shall respond to any such inquiries
by giving out only the Executive’s dates of employment by the Company.  The Parties agree that any potential future
employers may also be referred by the Executive or by the Company to the
current Chairman of the Board of the Company.


13.           Non-Solicitation.  Executive agrees that for a period of twelve
(12) months immediately following the Effective Date of this Agreement,
Executive shall not either directly or indirectly solicit, induce, or recruit
any of Company’s employees to leave their employment, or attempt to solicit,
induce or recruit employees of Company, either for himself or any other person
or entity.


14.           No Admission of Liability.  The Parties understand and acknowledge that
this Agreement constitutes a compromise and settlement of disputed claims.  No action taken by the Parties hereto, or
either of them, either previously or in connection with this Agreement shall be
deemed or construed to be: (a) an admission of the truth or falsity of any
claims heretofore made or (b) an acknowledgment or admission by either party of
any fault or liability whatsoever to the other party or to any third party.


15.           Costs.  The Parties shall each bear their own costs,
expert fees, attorneys’ fees and other fees incurred in connection with this
Agreement.


16.           Arbitration.  The Parties agree that any and all disputes
arising out of, or relating to, the terms of this Agreement, its
interpretation, and any of the matters herein released, shall be subject to
binding arbitration in Santa Clara County before the American Arbitration
Association under its National Rules for the Resolution of Employment
Disputes.  The Parties agree that the
prevailing party in any arbitration shall be entitled to injunctive relief in
any court of competent


 


 


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jurisdiction to enforce the
arbitration award.  The Parties agree
that the prevailing party in any arbitration shall be awarded its reasonable
attorneys’ fees and costs.  The Parties
hereby agree to waive their right to have any dispute between them resolved in
a court of law by a judge or jury.


17.           Authority.  Company represents and warrants that the
undersigned has the authority to act on behalf of Company and to bind Company
and all who may claim through it to the terms and conditions of this
Agreement.  Executive represents and
warrants that he has the capacity to act on his own behalf and on behalf of all
who might claim through him to bind them to the terms and conditions of this
Agreement.  Each Party warrants and
represents that there are no liens or claims of lien or assignments in law or
equity or otherwise of or against any of the claims or causes of action
released herein.


18.           Notices. Any notice under this
Agreement may be made as follows, by mail or fax:


If to Executive:


Said Mohammadioun


7450 Wildercliff Drive


Atlanta, GA 30328


 


If to Company:


Richard C. Mosher, Esq.


General Counsel


Intellisync Corporation


2550 N. First St., Suite 500


San Jose, CA 95131


19.           No Representations.  Each party represents that it has had the opportunity
to consult with an attorney, and has carefully read and understands the scope
and effect of the provisions of this Agreement. 
Neither party has relied upon any representations or statements made by
the other party hereto which are not specifically set forth in this Agreement.


20.           Severability.  In the event that any provision hereof
becomes or is declared by a court of competent jurisdiction or the
arbitrator(s) under paragraph 18 to be illegal, unenforceable or void, this
Agreement shall continue in full force and effect without said provision so
long as the remaining provisions remain intelligible and continue to reflect
the original intent of the Parties.


21.           Entire
Agreement. This Agreement and the documents and agreements referred to
herein represent the entire agreement and understanding between Company and
Executive concerning the subject matter of this Agreement and Executive’s
relationship with Company, and supersedes and replaces any and all prior
agreements and understandings between the Parties concerning the subject matter
of this Agreement and Executive’s relationship with Company, (except that the
Confidentiality Agreement and the Stock Agreement may be modified but not
replaced hereof).


 


 


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22.           No Waiver.  The failure of either of the Parties to
insist upon the performance of any of the terms and conditions in this
Agreement, or the failure to prosecute any breach of any of the terms and
conditions of this Agreement, shall not be construed thereafter as a waiver of
any such terms or conditions.  This
entire Agreement shall remain in full force and effect as if no such
forbearance or failure of performance had occurred.


23.           No Oral Modification.  This Agreement may only be amended in a writing
signed by Executive and the Company.


24.           Governing Law.  This Agreement shall be deemed to have been
executed and delivered within the State of California, and it shall be
construed, interpreted, governed, and enforced in accordance with the laws of the
State of California, without regard to conflict of law principles.  To the extent that either party seeks
injunctive relief in any court having jurisdiction each party hereby consents
to personal and exclusive jurisdiction and venue in the state and federal
courts of the State of California.


25.           Effective Date.  This Agreement is effective after it has been
signed by both parties and after seven (7) days have passed since Executive has
signed the Agreement (“the Effective Date”).


26.           Counterparts.  This Agreement may be executed in
counterparts, and each counterpart shall have the same force and effect as an
original and shall constitute an effective, binding agreement on the part of
each of the undersigned.


27.           Voluntary Execution of Agreement.  This Agreement is executed voluntarily and
without any duress or undue influence on the part or behalf of the Parties
hereto, with the full intent of releasing all claims.  The Parties acknowledge that:


(a)           They
have read this Agreement;


(b)           They
have been represented in the preparation, negotiation, and execution of this
Agreement by legal counsel of their own choice or that they have voluntarily
declined to seek such counsel;


(c)           They
understand the terms and consequences of this Agreement and of the releases it contains;


(d)           They
are fully aware of the legal and binding effect of this Agreement.


 


 


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IN WITNESS WHEREOF, the Parties have executed this
Agreement on the respective dates set forth below.


 


	
   

  	
   

  	
   

  	
  Intellisync Corporation

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
  10/24/05

  	
   

  	
  By

  	
  /s/ KEITH KITCHEN

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name

  	
  Keith Kitchen

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Title

  	
  Chief Accounting Officer

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Said Mohammadioun, an individual

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Dated:

  	
  10/15/05

  	
   

  	
      /s/ SAID MOHAMMADIOUN

  
	
   

  	
   

  	
   

  	
  Said Mohammadioun

  



 


 


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