**Exhibit 10.22**

 

August 24, 2005

 

Clyde Foster

 

Re:          Changeof Control Agreement

 

Dear Clyde:

 

As we have discussed, IntellisyncCorporation (the “Company”) has agreed to extend certain benefits to you for solong as you remain the Chief Operating Officer of the Company.  This letter sets out the terms of ouragreement.  Capitalized terms are definedon Schedule 1, attached.

 

1.     Accelerationof Vesting. Upon a Change of Control, you will automatically receive eighteen(18) months of accelerated vesting of all outstanding stock options and onehundred percent (100%) vesting of all performance options then held by you atthe time of a Change of Control; provided that your service shall not haveterminated 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, 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 base salary is reduced below $240,000for any reason, then you will be paid severance as if your salary was $240,000.  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******continuehealth 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 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, a termination for “Good Reason” meansa 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 orindirect and whether by purchase, lease, merger, consolidation, liquidation orotherwise) to all or substantially all of the Company’s

 

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business and/or assetsshall assume the obligations under this letter and agree expressly to performthe obligations under this letter in the same manner and to the same extent asthe Company would be required to perform such obligations in the absence of asuccession.  For all purposes under thisletter, the term “Company” shall include any successor to the Company’sbusiness and/or assets which executes and delivers the assumption agreementdescribed in this Section 3 or which becomes bound by the terms of thisletter 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-WillEmployment.  Of course, youremployment with the Company will continue to be on an “at will” basis, meaningthat either you or the Company may terminate your employment at any time forany 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 contrarycontained herein, this Agreement shall automatically terminate in its entiretyshould you cease to be the Chief Operating Officer of the Company prior to aChange of Control.

 

8.     Modificationand Amendment.  Any modifications andamendments to this Agreement shall be invalid unless in writing signed by bothparties. This Agreement supersedes all prior discussions and agreements betweenthe 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 thisletter 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 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 fifty percent (50%) or more of the totalvoting power represented by the Company’s then outstanding voting securities,excluding conversion of any convertible securities issued as of the date ofthis letter;

 

(b) Thecomposition 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 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 fifty percent (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) 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 fiftypercent (50%) of the total voting power represented by the voting securities ofthe Company or such surviving entity outstanding immediately after such mergeror consolidation, or the stockholders of the Company approve a plan of completeliquidation of the Company or an agreement for the sale or disposition by theCompany of all or 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)    Anytransaction, the sole purpose of which is to change the state of the Company’sincorporation; or

 

(ii)   Atransaction, the result of which is to sell all or substantially all of theassets of the Company to another corporation (the “surviving corporation”) providedthat 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**

 

**ReleaseAgreement**

 

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

 

Whereas, pursuant to theEmployment Agreement, Employee is entitled to certain stock option accelerationand salary and benefits continuation payments if his employment is terminatedother 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 theCompany desire to implement the stock option acceleration and salary andbenefits continuation payments contemplated by the Employment Agreement byentering 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, includingNew Hampshire, to the full extent that he may lawfully waive such rights withrespect to his release of claims.  Employeeacknowledges that he is releasing all known and unknown claims by signing thisdocument.

 

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 that Employee’sADEA release of claims does not apply to any rights or claims that may ariseunder the ADEA after the Effective Date (as hereinafter defined) of thisAgreement.

 

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, and also by first class mail, a writtenstatement of revocation.  If Employeedoes not revoke, the eighth day after the date of his acceptance will be the “EffectiveDate” of this Agreement.

 

 
| Date:  |   |   |                    |   |
|--------|--------|--------|-------------------------|--------|
|   |   |   | Clyde Foster            |
|   |   |   |                    |
| Date:  |   |   | INTELLISYNC CORPORATION |
|   |   |   |                    |
|   |   |   |                    |   |

 

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