**Exhibit10.23**

 

August 24, 2005

 

Rip Gerber

 

Re:          Changeof Control Agreement

 

Dear Rip:

 

As wehave discussed, Intellisync Corporation (the “Company”) has agreed to extendcertain benefits to you for so long as you remain the Chief Marketing Officerof the Company, or act in a similar capacity with a different title for theCompany.  This letter sets out the termsof our agreement.  Capitalized terms aredefined on Schedule 1, attached.

 

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

 

2.     SeveranceBenefits.  If the Company or theCompany’s successor other than for Good Reason, then you shall be entitled toreceive as a severance, six (6) months continuation of your base salary,based upon your base salary as of the date your employment ceases, providedthat you first sign a comprehensive release of claims in favor of the Companyor 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 theCompany’s successor is terminated within the initial twelve (12) month periodfollowing a Change of Control for any reason other than Good Reason, theCompany agrees that in the event you elect to continue health insurance underConsolidated Omnibus Budget Reconciliation Act (“COBRA”), the Company shall payany COBRA premiums for a period not to exceed six (6) months.  Employee’s participation in all otherbenefits and incidents of employment with Company, except as provided herein,shall cease on the Termination Date. Employee shall cease accruing employee benefits, including, but notlimited to, vacation time and paid time off as of the Termination Date.

 

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

 

3.     Successors.  Any successor to the Company (whether director indirect and whether by purchase, lease, merger, consolidation, liquidationor otherwise) to all or substantially all of the Company’s business and/orassets shall assume the obligations under this letter and agree expressly toperform the obligations under this letter in the same manner and to the sameextent as the Company would be required to perform such obligations in the absenceof a succession.  For all purposes underthis letter, the term “Company” shall include any successor to the Company’sbusiness and/or assets which

 

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executesand delivers the assumption agreement described in this Section 3 or whichbecomes bound by the terms of this letter by operation of law.

 

4.     LawGoverning; Arbitration.  This lettershall be governed by and construed in accordance with the laws of the State ofCalifornia. Any dispute or controversy arising under or in connection with thisletter shall be settled exclusively in arbitration conducted in Santa ClaraCounty, California, in accordance with the rules of the AmericanArbitration Association then in effect. Judgment may be entered on the arbitrator’s award in any court havingjurisdiction.  Punitive damages shall notbe awarded.  In any arbitrationproceeding, the party determined to be the prevailing party will be entitled toreceive, in addition to any other award, its attorneys’ fees and expenses ofthe proceeding.

 

5.     Employmentand Income Taxes.  All payments madepursuant to this letter will be subject to withholding of applicable employmentand income taxes, if any.

 

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

 

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

 

8.     Modification and Amendment. Any modifications and amendments to this Agreement shall be invalidunless in writing signed by both parties. This Agreement supersedes all priordiscussions and agreements between the parties regarding the subject matterhereto.

 

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            |   |

 

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# **SCHEDULE 1**

# ** **

Definition ofTerms.  Thefollowing 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 SecuritiesExchange Act of 1934, as amended), excluding existing beneficial owners as ofthe date of this letter, is or becomes the “beneficial owner” (as defined in Section 13d-3of said Act), directly or indirectly, of securities of the Company representing50% or more of the total voting power represented by the Company’s thenoutstanding voting securities, excluding conversion of any convertiblesecurities issued as of the date of this letter;

 

(b)  The compositionof the Board of Directors changes during any period of 36 months that followsthe date of this letter, such that individuals who, at the beginning of theperiod, were members of the Board of Directors (the “Continuing Directors”),cease for any reason to constitute at least a majority thereof; unless at least50% of the Continuing Directors has either (i) approved the election ofthe new Directors, (ii) if the election of the new Directors is voted onby stockholders, recommended that the stockholders vote for approval, or (iii) otherwisedetermined that such change in composition does not constitute a Change ofControl, even if the Continuing Directors do not constitute a quorum of thewhole Board (it being understood that this requirement shall not be capable ofsatisfaction unless there is at least one Continuing Director); or

 

(c)  Thestockholders of the Company approve a merger or consolidation of the Companywith any other corporation, other than a merger or consolidation which wouldresult in the voting securities of the Company outstanding immediately priorthereto continuing to represent (either by remaining outstanding or by beingconverted into voting securities of the surviving entity) at least 50% of thetotal voting power represented by the voting securities of the Company or suchsurviving entity outstanding immediately after such merger or consolidation, orthe stockholders of the Company approve a plan of complete liquidation of theCompany or an agreement for the sale or disposition by the Company of all orsubstantially all of the Company’s assets.

 

Any other provision ofthis schedule notwithstanding, the term Change of Control shall notinclude either of the following events undertaken at the election of theCompany:

 

(i)  Anytransaction, the sole purpose of which is to change the state of the Company’sincorporation; or

 

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

 

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**SCHEDULE 2**

 

**ReleaseAgreement**

 

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

 

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

 

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

 

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

 

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

 

1.     Employeehereby releases the Company and its shareholders, officers, directors,employees, and legal successors (collectively, the “Releasees”), from any andall claims, liabilities, demands and causes of action, whether known orunknown, which Employee has, may have or claim to have against any of theReleasees as of the date Employee executes this Agreement, including but notlimited to all claims, liabilities, demands and causes of action which relateto or arise out of Employee’s employment with the Company or the termination ofEmployee’s employment with the Company.

 

2.     Employeehereby 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 ofage, race, sex, disability, national origin or other discrimination orharassment under federal, state or local laws prohibiting such discriminationor harassment.

 

2.     Employeehas read Section 1542 of the Civil Code of the State of California, whichstates in its entirety:

 

**A generalrelease does not extend to claims which the creditor does not know or suspectto exist in his favor at the time of executing the release, which if known byhim must have materially affected his settlement with the debtor**.

 

Employee hereby waives any right or benefit he hasunder Section 1542 or any similar law of any other jurisdiction, to thefull extent that he may lawfully waive such rights with respect to his releaseof claims.  Employee acknowledges that heis releasing all known and unknown claims by signing this document.

 

3.     Employeespecifically agrees that this Agreement releases any claims he might under theAge Discrimination in Employment Act (“ADEA”), and that he specifically agreesnot to file any lawsuit or other action to assert such a claim.

 

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4.     Employeehas carefully read and fully understands this Agreement and the releasecontained herein and has not relied on any statement, written or oral, which isnot set forth in this document.

 

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

 

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

 
| Date:  |   |   |                    |   |
|--------|--------|--------|-------------------------|--------|
|   |   |   | Rip Gerber              |   |
|   |   |   |                    |   |
| Date:  |   |   | INTELLISYNC CORPORATION |
|   |   |   |                    |   |
|   |   |   |                    |   |

 

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