Exhibit 10.22


 


August 24, 2005


 


Clyde Foster


 


Re:          Change
of Control Agreement


 


Dear Clyde:


 


As we have discussed, Intellisync
Corporation (the “Company”) has agreed to extend certain benefits to you for so
long as you remain the Chief Operating Officer of 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 eighteen
(18) months of accelerated vesting of all outstanding stock options and one
hundred percent (100%) vesting of all performance 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 base salary is reduced below $240,000
for any reason, then you will be paid severance as if your salary was $240,000.  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 be the Chief Operating Officer 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/
  CLYDE FOSTER

  	
   

  	
   

  
	
  Name:

  	
  Clyde Foster

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
  8/24/2005

  	
   

  	
   

  



 


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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 fifty percent (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 thirty-six (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 fifty percent (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 fifty
percent (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


 


Release
Agreement 


 


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


 


Whereas, Employee and the
Company entered into that certain letter agreement re: employment offer dated August 28,
2002 (the “Employment Agreement”);


 


Whereas, pursuant to the
Employment 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 Employment 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, including
New Hampshire, 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.


 


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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: 

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Clyde Foster

  
	
   

  	
   

  	
   

  	
   

  
	
  Date: 

  	
   

  	
   

  	
  INTELLISYNC CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


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