**Exhibit 10.22**

 

**CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THISDOCUMENT, MARKED BY ASTERISKS HAS BEEN OMITTED AND FILED SEPARATELY WITH THESECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES ACTOF 1934, AS AMENDED.**

 

 

**AMENDMENTELEVEN**

**TO THEAMENDED AND RESTATED**

**AUTHORIZEDSYMANTEC ELECTRONIC RESELLER**

# **FOR SHOP SYMANTECAGREEMENT**

 

This Eleventh Amendmentto The Amended and Restated Authorized Symantec Electronic Reseller for ShopSymantec Agreement (the “**Amendment Eleven**”)is made as of the Amendment Eleven Effective Date, as defined below, and shallserve to amend the Amended and Authorized Symantec Electronic Reseller for ShopSymantec Agreement, with an Amended Date of July 1, 2003, by and betweenSymantec Corporation, Symantec Limited and Digital River, Inc. (the **“Agreement”**).

 

#### **RECITALS**

 

A.           Symantec and Digital River are parties tothe Agreement, which provides, among other things, for Digital River to resellSymantec Products to end users through Symantec’s Storefront, in accordancewith the terms and conditions set forth in the Agreement.

 

B.             Symantec and Digital River desire to makeseveral adjustments to the terms and conditions of the Agreement.

 

NOW, THEREFORE, inconsideration of the foregoing, and of the mutual covenants and agreementshereinafter set forth, Symantec and Digital River agree as follows:

 

1.               Capitalizedterms used herein and not otherwise defined below shall have the meanings setforth in the Agreement.

 

2.               Selling Veritas Product on the Storefront. Section 3 “Obligations of Digital River” is hereby amended to includethe following at the end of the section:

 

Selling VeritasProducts on the Storefront Post Closing.

 

a.               Background.  WhileSymantec currently anticipates completing its acquisition of all the assets ofVeritas Software Corporation (“Veritas”), which will result in Veritas becominga wholly owned subsidiary of Symantec (the “Closing”), by June 30, 2005, thisdate is subject to change.  As a result,the effective date of the Closing for purposes of this Amendment Eleven is thedate upon which Digital River receives written notice that the Closing hasoccurred (the “Closing Date”) from *, Director, Global Online Sales.  Symantec, immediately following the Closing,desires to sell the Veritas computer software products, as listed in Exhibit Yhereto, as it may be amended from time to time (“Veritas Products”), on theStorefront in North America (the “VP Territory”).  Symantec will not offer downloadable versionsof the Veritas Products on the Storefront.

 

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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITHTHE SECURITIES AND EXCHANGE COMMISSION.

 

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b.              Pre-Closing Work. Symantec, and Digital River at Symantec’s reasonable request, willperform, prior to the Closing, the work Symantec deems reasonably necessary inorder be prepared to sell the Veritas Products on the Storefront immediatelyfollowing the Closing.  Such workincludes, but is not limited to: creating SKUs, developing and creating webpages and online links, providing Veritas Products to Digital River to fulfillpost-Closing sales, and creating internal processes and procedures to addressthe selling and fulfilling of Veritas Product on the Storefront (the “Pre-ClosingWork”).

 

c.               Purchase Orders for, and Stocking of,Veritas Product.  Symantec personnel will coordinate withDigital River, and Digital River will reasonably cooperate with Symantec,regarding Digital River obtaining Veritas Products from Symantec, prior to the Closing,in order that Digital River will be prepared to fulfill the initialpost-Closing sales of Veritas Products on the Storefront.

 

d.              Limitations. Prior to the Closing Date, under no circumstances: (a) will theStorefront display or refer to the Veritas Product; (b) will the Storefrontenable a user to purchase the Veritas Product; (c) will orders for VeritasProduct be accepted or fulfilled on the Storefront.  Under no circumstances will the VeritasProducts be sold on the Storefront outside the VP Territory.

 

e.               Pricing.  The VeritasProducts will be treated as Consumer Symantec Products, as that term is used inthe Agreement, for purposes of selling the Veritas Products on the Storefront,and for purposes of calculating the actual final price Digital River paysSymantec for the Veritas Products, which is based upon the Partner EfficiencySharing Model.

 

3.               PartnerEfficiency Model.  Section 11(c)(i),as amended by Amendment Four, is hereby deleted in its entirety and replacedwith the following.

 

c.               Paymentsby Digital River to Symantec.

 

i.                  SymantecPricing to Digital River.  From timeto time, Symantec shall provide Digital River with price lists setting forththe * prices from Symantec to Digital River for the Symantec Products (**“List Price(s)”**). The current price lists for the Symantec Products as of the Amended Dateis set forth as **Exhibit A** to thisAgreement.  Symantec’s Revenue Accountingdepartment and E-commerce Marketing team will maintain and update the SymantecProducts in terms of both product lines offered, their SKUs listing and anypricing changes, and forward this updated list to Digital River for the purposeof calculating the price adjustment for the actual final price that DigitalRiver pays to Symantec, in accordance with the Partner Efficiency SharingModel, as indicated below.  Unlessotherwise noted and provided as separate lists in **Exhibit A**, the List Price and the ERPs are the same.

 

The actual final pricethat Digital River pays Symantec for each Symantec Product shall be based uponthe Partner Efficiency Model, as defined and set forth below, which isdetermined based upon the volume of sales of Symantec Products made by DigitalRiver.  The calculation for the first twomonthly remittances from Digital River to Symantec of each quarter will bebased upon the previous established rate of * percent (*%).  At the end of each quarter, the Parties willagree on an estimated “Revenue @ ERP” for the upcoming quarter, which shall beno less than the prior quarter’s actual “Revenue @ ERP.”   After the conclusion of each quarter, a trueup against the actual “Revenue @ ERP” shall be

 

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performed per theschedule set forth below.  The amount duefor consumer Symantec Products will be determined as follows:  (i) the actual total dollar value of theconsumer Symantec Products sold for the quarter (which amount shall be derivedfrom the “penetration report” generated by Digital River) (the “*****”) will be multiplied by four (4) toannualize the amount, then (ii) locate that total amount in the column “Revenue@ ERP” on the Partner Efficiency Sharing Model below and (iii) find theapplicable * indicated at such level of “Revenue @ ERP” in the PartnerEfficiency Sharing Model. The applicable * will be applied to the * for suchconsumer Symantec Products to determine * that Digital River shall pay Symantecfor the Symantec Products.  The Partiesagree to communicate the actual amount due to Symantec on the fourth day of thenext quarter.

 

A finalized activityreport will be sent to Symantec on the tenth (10th) of eachmonth.  Digital River shall pay Symantecthe amount due by no later than the twentieth (20th) of eachmonth.  There are no other annual catchup adjustments or rebates based upon other quarterly activity that will beapplied in determining the final price that Digital River shall pay Symantecfor the Symantec Products.  Subject to theforegoing requirement, Symantec reserves the right, from time to time, increaseor decrease its List Prices to Digital River and the ERPs for the SymantecProducts, which changes shall be effected by Symantec’s delivery to DigitalRiver of an updated price list.  ThePartner Efficiency Sharing Model will be revisited by the Parties and may beadjusted by a mutually signed amendment.

 

The Partner EfficiencyModel will not apply to any sales from the “Call Center,” and “iStore,” whichare governed by a * of * and *.

 

**PartnerEfficiency Model**:

(All Revenue @ ERPin Millions)

 

*******                                         ***

 

4.               Term.  The Term of the Agreement is hereby mutuallyextended for an additional two years.  Asa result, the new expiration date of the Agreement is July 1, 2008.

 

5.               DedicatedTeam.  Section 3(m) of the Agreementis deleted in its entirety, and the term “Dedicated Team” in 3(b)(xii)(a)(iv)is hereby amended to mean no less than the following Digital River personnel: *software development engineers; * web developer(s) (Creative and site design);* project manager(s); * business analyst(s); and * Q&A engineer(s).  In addition, the following is hereby added tothe end of Section 3(b)(xii)(a)(iv) and all language in such Section contrary tothe below is hereby deleted:

 

The Dedicated Team will:(a) work solely on Symantec projects and requests at a one hundred percent(100%) utilization rate; (b) work only * per person, per week, or *, perperson, per quarter (less any holidays) (“Dedicated Team Hours”); (c) not workovertime on Symantec projects and requests. Digital River will be responsible for all costs and fees related to theDedicated Team.  For the avoidance ofdoubt, the special discounted Consulting Rate for each member of the DedicatedTeam will remain * per hour.  To the extentSymantec requires work by the Dedicated Team in excess of the Dedicated TeamHours, Symantec will request such work in writing, and will pay the ConsultingRate, which is defined as * per hour in the Agreement, for all such work.  Digital River will provide a weekly writtenreport to Symantec in substantially the form it has used to report on the team’sutilization throughout 2005.

 

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6.               Exhibits.  The Agreement is hereby amended to include anew Exhibit Y, “Veritas Products,” as attached hereto.

 

7.               Allother provisions of the Agreement, except as modified by this Amendment Eleven,shall remain in full force and effect and are hereby reaffirmed.

 

8.               ThisAmendment Eleven is considered effective on the last date for the Symantecsignature lines set forth below on this page (the “**Amendment Eleven Effective Date”**) provided that it has beensigned by Digital River and has been accepted by Symantec at its principalplace of business.  Notwithstanding theforegoing, the effective date of paragraphs three (3) and five (5) above willbe April 1, 2005.

 

IN WITNESS WHEREOF, theparties hereto have executed this Eleventh Amendment on the date specifiedbelow.

 
| SYMANTEC  CORPORATION |                     | DIGITAL  RIVER |
|-----------------------|--------------------------|----------------|
|                  |                     |           |
| Signature:            | /s/  Arthur F. Courville |           |   | Signature: | /s/  Carter Hicks |   |
|                  |                     |           |
| Printed  Name:        | Arthur  F. Courville     |           |   | Printed  Name: | Carter  Hicks |   |
|                  |                     |           |
| Title:                | SVP  and General Counsel |           |   | Title: | Chief  Financial Officer |   |
|                  |                     |           |
| Date:                 | June  15, 2005           |           |   | Date: | June  15, 2005 |   |
|                  |                     |           |
|                  |                     |           |
| SYMANTEC  LIMITED     |                     |           |   |
|                  |                     |           |
| Signature:            | /s/  Arthur F. Courville |           |   |   |
|                  |                     |           |
| Printed  Name:        | Arthur  F. Courville     |           |   |   |
|                  |                     |           |
| Title:                | Director                 |           |   |   |
|                  |                     |           |
| Date:                 | June  15, 2005           |           |   |   |
|                       |                          |                |  |  |  |  |  |  |  |  |  |  |  |  |  |

 

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**ExhibitY**

 

1.               ReplicationExec v3.1

2.               VERITASBackup ExecTM 10 for Windows Servers

3.               VERITASBackup ExecTM 10 for Windows Small Business Server

4.               VERITASBackup ExecTM 10.0 for Windows Small Business Servers Remote Agent for WindowsServers (CAL) 1-pack

5.               VeritasBackup ExecTM 10.0 for Windows Servers Agent for Microsoft Exchange Servers

6.               VERITASBackup ExecTM 10.0 Agent for Microsoft SQL Server (CAL)

7.               VERITASBackup ExecTM 10.0 for Windows Servers Remote Agent (CAL) for Windows or NetWareServers

 

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*CONFIDENTIAL INFORMATION HAS BEEN OMITTED AND FILED SEPARATELY WITHTHE SECURITIES AND EXCHANGE COMMISSION.

 

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