Exhibit 10.22


 


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


 





 


AMENDMENT
ELEVEN


TO THE
AMENDED AND RESTATED


AUTHORIZED
SYMANTEC ELECTRONIC RESELLER


FOR SHOP SYMANTEC
AGREEMENT


 


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


 


RECITALS


 


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


 


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


 


NOW, THEREFORE, in
consideration of the foregoing, and of the mutual covenants and agreements
hereinafter set forth, Symantec and Digital River agree as follows:


 


1.               Capitalized
terms used herein and not otherwise defined below shall have the meanings set
forth in the Agreement.


 


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


 


Selling Veritas
Products on the Storefront Post Closing.


 


a.               Background.  While
Symantec currently anticipates completing its acquisition of all the assets of
Veritas Software Corporation (“Veritas”), which will result in Veritas becoming
a wholly owned subsidiary of Symantec (the “Closing”), by June 30, 2005, this
date is subject to change.  As a result,
the effective date of the Closing for purposes of this Amendment Eleven is the
date upon which Digital River receives written notice that the Closing has
occurred (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 Y
hereto, as it may be amended from time to time (“Veritas Products”), on the
Storefront in North America (the “VP Territory”).  Symantec will not offer downloadable versions
of the Veritas Products on the Storefront.


 










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


 


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b.              Pre-Closing Work. 
Symantec, and Digital River at Symantec’s reasonable request, will
perform, prior to the Closing, the work Symantec deems reasonably necessary in
order be prepared to sell the Veritas Products on the Storefront immediately
following the Closing.  Such work
includes, but is not limited to: creating SKUs, developing and creating web
pages and online links, providing Veritas Products to Digital River to fulfill
post-Closing sales, and creating internal processes and procedures to address
the selling and fulfilling of Veritas Product on the Storefront (the “Pre-Closing
Work”).


 


c.               Purchase Orders for, and Stocking of,
Veritas Product.  Symantec personnel will coordinate with
Digital 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 initial
post-Closing sales of Veritas Products on the Storefront.


 


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


 


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


 


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


 


c.               Payments
by Digital River to Symantec.


 


i.                  Symantec
Pricing to Digital River.  From time
to time, Symantec shall provide Digital River with price lists setting forth
the * 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 Date
is set forth as Exhibit A to this
Agreement.  Symantec’s Revenue Accounting
department and E-commerce Marketing team will maintain and update the Symantec
Products in terms of both product lines offered, their SKUs listing and any
pricing changes, and forward this updated list to Digital River for the purpose
of calculating the price adjustment for the actual final price that Digital
River pays to Symantec, in accordance with the Partner Efficiency Sharing
Model, as indicated below.  Unless
otherwise noted and provided as separate lists in Exhibit A, the List Price and the ERPs are the same.


 


The actual final price
that Digital River pays Symantec for each Symantec Product shall be based upon
the Partner Efficiency Model, as defined and set forth below, which is
determined based upon the volume of sales of Symantec Products made by Digital
River.  The calculation for the first two
monthly remittances from Digital River to Symantec of each quarter will be
based upon the previous established rate of * percent (*%).  At the end of each quarter, the Parties will
agree on an estimated “Revenue @ ERP” for the upcoming quarter, which shall be
no less than the prior quarter’s actual “Revenue @ ERP.”   After the conclusion of each quarter, a true
up against the actual “Revenue @ ERP” shall be


 










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


 


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


 


A finalized activity
report will be sent to Symantec on the tenth (10th) of each
month.  Digital River shall pay Symantec
the amount due by no later than the twentieth (20th) of each
month.  There are no other annual catch
up adjustments or rebates based upon other quarterly activity that will be
applied in determining the final price that Digital River shall pay Symantec
for the Symantec Products.  Subject to the
foregoing requirement, Symantec reserves the right, from time to time, increase
or decrease its List Prices to Digital River and the ERPs for the Symantec
Products, which changes shall be effected by Symantec’s delivery to Digital
River of an updated price list.  The
Partner Efficiency Sharing Model will be revisited by the Parties and may be
adjusted by a mutually signed amendment.


 


The Partner Efficiency
Model will not apply to any sales from the “Call Center,” and “iStore,” which
are governed by a * of * and *.


 


Partner
Efficiency Model:


(All Revenue @ ERP
in Millions)


 


*                                         *


 


4.               Term.  The Term of the Agreement is hereby mutually
extended for an additional two years.  As
a result, the new expiration date of the Agreement is July 1, 2008.


 


5.               Dedicated
Team.  Section 3(m) of the Agreement
is 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 to
the end of Section 3(b)(xii)(a)(iv) and all language in such Section contrary to
the 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 *, per
person, per quarter (less any holidays) (“Dedicated Team Hours”); (c) not work
overtime on Symantec projects and requests. 
Digital River will be responsible for all costs and fees related to the
Dedicated Team.  For the avoidance of
doubt, the special discounted Consulting Rate for each member of the Dedicated
Team will remain * per hour.  To the extent
Symantec requires work by the Dedicated Team in excess of the Dedicated Team
Hours, Symantec will request such work in writing, and will pay the Consulting
Rate, which is defined as * per hour in the Agreement, for all such work.  Digital River will provide a weekly written
report to Symantec in substantially the form it has used to report on the team’s
utilization throughout 2005.


 










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


 


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


 


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


 


8.               This
Amendment Eleven is considered effective on the last date for the Symantec
signature lines set forth below on this page (the “Amendment Eleven Effective Date”) provided that it has been
signed by Digital River and has been accepted by Symantec at its principal
place of business.  Notwithstanding the
foregoing, the effective date of paragraphs three (3) and five (5) above will
be April 1, 2005.


 


IN WITNESS WHEREOF, the
parties hereto have executed this Eleventh Amendment on the date specified
below.


 


	
  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

  	
   

  	
   

  	
   

  
																



 










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


 


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Exhibit
Y


 


1.               Replication
Exec v3.1


2.               VERITAS
Backup ExecTM 10 for Windows Servers


3.               VERITAS
Backup ExecTM 10 for Windows Small Business Server


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


5.               Veritas
Backup ExecTM 10.0 for Windows Servers Agent for Microsoft Exchange Servers


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


7.               VERITAS
Backup ExecTM 10.0 for Windows Servers Remote Agent (CAL) for Windows or NetWare
Servers


 










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


 


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