**Exhibit 10.26**

 

October 25,2005

 

ScottHrastar

2125Noblin Ridge Trail

Duluth,GA 30097

 

Re:          Change of Control Agreement

 

DearScott:

 

As we have discussed, Intellisync Corporation (the “Company”)has agreed to extend certain benefits to you for so long as you remain a SeniorVice President of the Company, or act in a similar capacity with a differenttitle for the Company.  This letter setsout the terms of our agreement.  Capitalizedterms are defined on Schedule 1, attached.

 

1.               Acceleration ofVesting. 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 ordisability) prior to any such Change of Control.  If your service with the Company terminatesfor any reason (including without limitation, for death or disability) prior tothe Change of Control date, you shall not be entitled to receive acceleratedvesting of stock options.  If yourservice with the Company or the Company’s successor upon a Change of Control isterminated by the Company or the Company’s successor for reasons other than “GoodReason” (as hereinafter defined) within the initial twelve (12) month periodfollowing the Change of Control date, you will automatically receiveaccelerated vesting on one hundred percent (100%) of all outstanding stockoptions then held by you at the time of your termination.

 

2.               SeveranceBenefits.  If the Company or theCompany’s successor other than for Good Reason, terminates your employment, thenyou shall be entitled to receive as a severance, six (6) monthscontinuation of your base salary, based upon your base salary as of the dateyour employment ceases, provided that you first sign a comprehensive release ofclaims in favor of the Company or the Company’s successor, substantially in theform attached hereto as Schedule 2, and that the release becomeseffective according to its terms.  Ifyour employment with the Company of the Company’s successor is terminatedwithin the initial twelve (12) month period following a Change of Control forany reason other than Good Reason, the Company agrees that in the event youelect to continue health insurance under ConsolidatedOmnibus Budget Reconciliation Act (“COBRA”), the Company shall pay any COBRApremiums 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.

 

Asused herein, a termination for “Good Reason” means a termination for any of thefollowing reasons:  fraud, theft,dishonesty, conviction of a felony, or willful misconduct.

 

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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 theabsence of a succession.  For allpurposes under this letter, the term “Company” shall include any successor tothe Company’s business and/or assets which executes and delivers the assumptionagreement described in this Section 3 or which becomesbound 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 “at will” basis,meaning that either you or the Company may terminate your employment at anytime for any reason or no reason, without further obligation or liability.  The Company also reserves the right to modifyor amend the terms of your employment (other than those set forth in thisletter) at any time for any reason.  Thispolicy of at-will employment is the entire agreement as to the subject matterhereof, and may only be modified in an express written agreement signed by theChief Executive Officer of the Company.

 

7.               Termination. Notwithstanding anything to the contrary contained herein, thisAgreement shall automatically terminate in its entirety should you cease to actas a Senior Vice President of Technology, 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.

 

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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            |   |
|                               |                    |  |  |  |

 

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# **SCHEDULE 1**

 

Definitionof Terms.  Thefollowing terms referred to in this letter shall have the following meanings:

 

*“Changeof Control”* means the occurrence of any of the followingevents:

 

(a) Any “person” (as such term is used in Sections 13(d) and 14(d) of theSecurities Exchange Act of 1934, as amended), excluding existing beneficialowners as of the date of this letter, is or becomes the “beneficial owner” (asdefined in Section 13d-3 of said Act), directly or indirectly, ofsecurities of the Company representing 50% or more of the total voting powerrepresented by the Company’s then outstanding voting securities, excludingconversion 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 36months that follows the date of this letter, such that individuals who, at thebeginning of the period, were members of the Board of Directors (the “ContinuingDirectors”), cease for any reason to constitute at least a majority thereof;unless at least 50% of the Continuing Directors has either (i) approvedthe election of the new Directors, (ii) if the election of the newDirectors is voted on by stockholders, recommended that the stockholders votefor approval, or (iii) otherwise determined that such change incomposition does not constitute a Change of Control, even if the ContinuingDirectors do not constitute a quorum of the whole Board (it being understoodthat this requirement shall not be capable of satisfaction unless there is atleast one Continuing Director); or

 

(c) The stockholders of the Company approve a merger or consolidation of theCompany with any other corporation, other than a merger or consolidation whichwould result in the voting securities of the Company outstanding immediatelyprior thereto continuing to represent (either by remaining outstanding or bybeing converted into voting securities of the surviving entity) at least 50% ofthe total voting power represented by the voting securities of the Company orsuch surviving entity outstanding immediately after such merger or consolidation,or the stockholders of the Company approve a plan of complete liquidation ofthe Company or an agreement for the sale or disposition by the Company of allor substantially 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) Any transaction, the sole purpose of which is to change the state of theCompany’s incorporation; or

 

(ii) A transaction, the result of which is to sell all or substantially all of theassets of the Company to another corporation (the “surviving corporation”)provided that the surviving corporation is owned directly or indirectly by thestockholders of the Company immediately following such transaction insubstantially the same proportions as their ownership of the Company’s commonstock immediately preceding such transaction.

 

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**SCHEDULE 2**

 

**Release Agreement**

 

ThisRelease Agreement (the “Agreement”), dated as of             ,  is entered into byand between Scott Hrastar (“Employee”) and Intellisync Corporation (the “Company”).

 

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

 

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

 

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

 

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

 

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

 

2.               Employee hereby agrees not to file anylawsuit or other action to assert such claims, which include, but are notlimited 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 orlocal laws prohibiting such discrimination or harassment.

 

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

 

**A general release does not extend to claims which the creditor does notknow 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 thedebtor**.

 

Employee hereby waives anyright or benefit he has under Section 1542 or any similar law of any otherjurisdiction, to the full extent that he may lawfully waive such rights withrespect to his release of claims. Employee acknowledges that he is releasing all known and unknown claimsby signing this document.

 

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3.               Employee specifically agrees that thisAgreement releases any claims he might under the Age Discrimination in EmploymentAct (“ADEA”), and that he specifically agrees not to file any lawsuit or otheraction to assert such a claim.

 

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

 

5.               Employee will be provided up to 21 days fromthe date this Agreement is presented to him to accept the terms of thisAgreement, although he may accept it at any time within those 21 days.  Employee is advised, if he wishes, to consultwith an attorney regarding this Agreement. The Company agrees that Employee’s ADEA release of claims does not applyto 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 datingand signing it and returning it to the attention of the Chief Executive Officerat Company.  Once Employee does so, hewill still have an additional 7 days in which to revoke his acceptance bysending 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 dayafter the date of his acceptance will be the “Effective Date” of thisAgreement.

 

 
| Date:  |   |   |                     |
|--------|--------|--------|--------------------------|
|   |   |   |                     |
|   |   |   | Scott  Hrastar           |
|   |   |   |                     |
|   |   |   |                     |
| Date:  |   |   | INTELLISYNC  CORPORATION |
|   |   |   |                     |
|   |   |   |                     |

 

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