Exhibit 10.38


 


Description of the Material Terms of
the


MIVA, Inc. 2009 Long Term
Incentive Compensation Program


 


On December 17,
2008, the Compensation Committee of the Board of Directors (the “Board”) of
MIVA, Inc. (the “Company”) approved the MIVA, Inc. 2009 Long Term
Incentive Compensation Program.


 


The
program provides for grants of Restricted Stock Units (each an “RSU”) under the
MIVA, Inc. 2006 Stock Award and Incentive Plan to certain employees,
including executive officers, of the Company. Under the program, 80% of the
total grant to a participant will be service-based RSUs and 20% will be
performance-based RSUs. Each RSU represents the right to receive one share of
the Company’s common stock upon satisfaction of the vesting conditions. Up to
1,300,000 shares of the Company’s common stock are initially reserved for
issuance and may be granted under the program.


 


Service-based
RSUs will vest at the rate of 25% per year beginning one year from the date of
grant. Except as provided below, vesting of service-based RSUs is contingent
upon continued employment with the Company and, unless vested, service-based
RSUs will be forfeited upon separation of employment from the Company for any
reason. Service-based RSUs will immediately and fully vest in the event of a
change in control of the Company as defined in the MIVA, Inc. 2006 Stock
Award and Incentive Plan.


 


For
certain participants who have employment agreements with the Company, subject
to the terms of the specific employment agreements, if the person is terminated
without cause or the person resigns from the Company for good reason, any
unvested service-based RSUs generally will immediately and fully vest upon
termination of employment. If a participant’s employment with the Company is
terminated due to death, any unvested service-based RSUs will not become vested
due to such death.


 


Performance-based
RSUs will vest based on the Company’s stock obtaining a pre-determined closing
price for a period of time. For performance-based RSUs to vest, the Company’s
stock must close above the target price of $1.00 per share for 10 consecutive
trading days (the “Performance Goal”). However, for grants made after January 5,
2009, the target price for the Performance Goal will be the greater of $1.00
per share or 100% above the fair market value of the Company’s stock on the
date of grant. If the Performance Goal is met, then the performance-based RSUs
will vest on the vesting day, which is the day following the achievement of the
Performance Goal; provided, however, if the Performance Goal is met prior to June 30,
2009, then the vesting day will be on June 30, 2009.


 


Vesting
of performance-based RSUs is contingent upon continued employment with the
Company and, unless a participant is employed on the date the Performance Goal
is met, the performance-based RSUs will terminate upon the date of termination
of such participant. Also, if a participant is terminated for cause following
attainment of the Performance Goal but prior to the vesting day, then such
participant’s performance-based RSUs will terminate. If the Performance Goal is
met prior to June 30, 2009 and a participant’s employment terminates other
than for cause after the Performance Goal is met and prior to June 30,
2009, then the vesting day is June 30, 2009.


 


If
there is a change in control and the Performance Goal is not met prior to the
date of such change in control, then the participant’s performance-based RSUs
will terminate. If there is a change in control prior to June 30, 2009 but
following attainment of the Performance Goal, then the participant’s
performance-based RSUs will vest on the date of such change in control.


 


On January 5,
2009, it is anticipated that the following named executive officers of the
Company will receive the following RSUs under the program:


 


1

















 


	
  Peter Corrao, Chief
  Executive Officer

  	
   

  	
  380,000

  	
   

  
	
  Lowell Robinson, Chief
  Financial Officer and Chief Operating Officer

  	
   

  	
  125,000

  	
   

  
	
  John Pisaris, General
  Counsel

  	
   

  	
  124,116

  	
   

  
	
  Subhransu Mukherjee,
  Senior Vice President MIVA Media

  	
   

  	
  100,000

  	
   

  
	
  Robert Roe, Senior Vice
  President MIVA Direct

  	
   

  	
  90,000