Exhibit 10.26


 


October 25,
2005


 


Scott
Hrastar


2125
Noblin Ridge Trail


Duluth,
GA 30097


 


Re:          Change of Control Agreement


 


Dear
Scott:


 


As we have discussed, Intellisync Corporation (the “Company”)
has agreed to extend certain benefits to you for so long as you remain a Senior
Vice President 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, terminates your employment, 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 a Senior Vice President of Technology, 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/ SCOTT HRASTAR

  	
   

  
	
  Name:

  	
  Scott Hrastar

  	
   

  
	
   

  	
   

  	
   

  
	
  Date:

  	
  8/25/05

  	
   

  
					



 





















 


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 Scott Hrastar (“Employee”) and Intellisync Corporation (the “Company”).


 


Whereas,
Employee and the Company entered into that certain Change of Control Agreement
dated                           ,
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:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Scott
  Hrastar

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  INTELLISYNC
  CORPORATION