Exhibit 10.22


 


EXECUTION
VERSION


 


CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO CERTAIN
PORTIONS OF THIS AGREEMENT.  CONFIDENTIAL
PORTIONS HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.


 


AMENDMENT NO. 2 TO


THE AGREEMENT AND WORK ORDER NO. 3


 


THIS AMENDMENT NO. 2 TO THE AGREEMENT AND WORK ORDER NO. 3
(this “Amendment”) is entered into effective as of February 1, 2009
(the “Amendment Date”) by and between MIVA, Inc. (“Customer”)
and Perot Systems Corporation (“Supplier”).


 


WHEREAS, effective May 11,
2007, Supplier and Customer entered into a Master Services Agreement (as
amended, the “Master Agreement”) and the following Statements of Work
thereunder (each as amended, a “SOW”): (i) IT Infrastructure
Statement of Work under which Supplier provides information technology and
related services, (ii) ADM Statement of Work under which Supplier provides
applications development and maintenance services, (iii) F&A Statement
of Work under which Supplier provides finance and accounting-related business
process services, and (iv) Media Support Statement of Work under which
Supplier provides business process services related to Customer’s media and
advertising “partners.”


 


WHEREAS,
effective November 26, 2007, Supplier and Customer entered into Work Order
No. 3 under the ADM Statement of Work ( “Work Order 3”) describing
the services to be provided by Supplier in connection with the development and
implementation of applications to replace Customer’s existing, global Internet advertising
management systems (as described in Work Order 3, the “Transformation
Project”).


 


WHEREAS,
effective September 1, 2008, Supplier and Customer entered into Amendment No. 1
to the Agreement and Work Order No. 3 (“Amendment 1”), pursuant to
which Supplier, at Customer’s request, changed and eliminated various Services
provided under the Agreement in an effort to reduce the Charges.  Such changes included:  (i) the elimination of all Services
provided in support of Customer’s European operations to reflect the decreased
scope and scale of its European business, (ii) reduction of the number of
FTEs in the Applications Maintenance Pool, (iii) termination of the
F&A Statement of Work and the assumption by Customer of Supplier’s
responsibilities thereunder, and (iv) Customer assuming responsibility
under Work Order 3 for the procurement, purchase, deployment, installation,
configuration and implementation of the Transformation Assets.


 


WHEREAS,
in a further effort to reduce costs, Customer has requested that Supplier
terminate all Services provided under the Agreement pursuant to Section 12.1(c) of
the Master Agreement, as of the dates and under the conditions set forth in
this Amendment.


 


NOW,
THEREFORE, for good and valuable consideration, the Parties agree as follows:


 


MIVA/PSC CONFIDENTIAL


 


[***] = Confidential treatment requested for redacted portion; redacted
portion has been filed separately with the Securities and Exchange Commission.


 


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1.                                      TERMINATION OF SERVICES


 


1.1                               General


 


(a)                                 Service Desk Services.   Effective as of January 1, 2009, Supplier shall terminate and
discontinue all Services provided in connection with the Service Desk including
the Services described in Schedule A to the IT SOW.


 


(b)           IT SOW.   Effective as of  the Amendment
Date, the IT SOW (including all Schedules) shall be terminated in its entirety
and of no further force or effect, and Supplier shall terminate and discontinue
all other Services provided under or in connection with such SOW.


 


(c)                                  ADM SOW.  Effective as of  the Amendment
Date, except with respect to the Development Services under Work Order 3 (which
shall continue to be provided by Supplier in accordance with this Amendment),
all ADM Services and the terms under the ADM SOW applicable thereto, shall be
terminated and of no further force or effect, and Supplier shall discontinue
all Services provided under or in connection with such SOW.  For the avoidance of doubt, the following Schedules
under the ADM SOW are deleted in their entirety, effective as of the Amendment
Date:  Schedule A (Services
Description/Responsibility Matrix); Schedule C (Service Level
Agreement); Schedule D (Charges); Schedule E (Transition Plan); Schedule
N (Termination Assistance Services) and Schedule O (Termination
Charges).  Upon expiration or termination
of Work Order 3, to the extent not terminated in accordance with this
Section,  the ADM SOW shall automatically
terminate and be of no further force or effect and Supplier shall terminate and
discontinue all Services provided under or in connection with such SOW.


 


(d)           Media Support SOW.  Effective as of April 30, 2009, the Media Support SOW, as amended
hereunder, shall be terminated in its entirety and of no further force or
effect, and Supplier shall terminate and discontinue all Services provided
under or in connection with such SOW, unless Customer provides written notice
to Supplier of its intent to renew the Media Support SOW for  an additional one month term not later than
thirty (30) days prior to the then-current termination date.  Customer shall have two such extension
options.


 


(e)                                  Master Agreement.  Effective as of termination or expiration of the Media Support SOW, the
Master Agreement shall be terminated and Supplier shall terminate and
discontinue all other Services provided under or in connection with the Master
Agreement.


 


1.2                               Transition.  Supplier and Customer will reasonably cooperate in the orderly
termination and transfer of the services, functions, responsibilities, tasks
and operations comprising the Services provided under the IT and ADM SOWs and
the  orderly wind down and transfer of
the services, functions, responsibilities,


 


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tasks
and operations comprising the Services provided under the Media Support
SOW.  Supplier shall provide the services
described in Annex A (the “Transition Services”) for the periods
described therein.  Any additional
assistance (i.e., beyond the Transition Services) requested by Customer in
writing shall be provided subject to the availability of qualified Supplier
resources and on such additional terms and conditions as set forth in Section 4.3
hereof.  Except as provided in this
Section, Supplier shall have no obligation to provide Termination Assistance
Services in connection with the termination of the SOWs.


 


1.3                               Service Levels.  As of the Amendment Date, Exhibit 15 is terminated in its
entirety and all Service Levels are terminated.   Customer acknowledges and agrees that
Supplier has met all Service Levels applicable to Services provided on or after
September 1, 2008 and that no Service Level Credits are due to Customer.


 


2                                         PERSONNEL TRANSFER


 


2.1                               General.  On or
before January 20, 2009, Customer will offer employment to each of the
employees of Supplier providing Services to Customer identified in Annex B
(the “Personnel”), provided, however, such offers shall be conditioned
upon successful negotiation and execution of this Agreement.


 


2.2                               Offer Terms.  ***.


 


2.3                               Release of Personnel;
Solicitation by Supplier.  Supplier shall release any Personnel who
accept Customer’s offer of employment and are hired by Customer from any
non-competition or other restrictive covenants that would prevent or interfere
with their becoming an employee of Customer. This release shall be a limited
release effective on the Personnel’s hire date by Customer and shall not affect
any other obligations of the Transitioned Personnel under the terms of their
Associate Employment Agreement or other agreements with Supplier, including
their obligations of confidentiality and their obligations to not solicit other
Supplier customer.  Supplier may solicit,
hire and engage Personnel for continued or new employment with Supplier.


 


2.4                               Personnel
Expenses.   Customer shall be
responsible for all cell phone, data card, and home internet or similar charges
submitted by or for the Personnel after January 1, 2009 which are used for
the provision of the Services.  Any such
charges incurred after the date of hire shall be paid for by Customer in
accordance with Customer’s standard reimbursement policies.  Customer shall purchase from Supplier the two
personal laptop computers used by the Personnel as of their hire date.  Customer shall pay Supplier $3,150 for such
computers on or before February 5, 2009. 
The computers are provided by Supplier
on an as-is, where-is basis.  Supplier
expressly disclaims any representations or warranties, express or implied, as
to such computers, or the condition or 


 


[***] = Confidential treatment requested for redacted portion; redacted
portion has been filed separately with the Securities and Exchange Commission.


 


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suitability of such materials, including any
warranties of merchantability or fitness for a particular purpose.


 


3.                                      WORK ORDER 3.


 


3.1                               General. 
Effective as of the Amendment Date, Work Order 3 shall be amended to
provide as set forth in the version attached hereto as Annex C.


 


 3.2                            Warranty
Obligations.  Notwithstanding Section 6.4
of the Master Agreement, Supplier warrants that for a period of *** days
following Final Acceptance of the Developed Software under Work Order 3, such
Developed Software will, when maintained and operated in accordance with
Supplier’s written instructions, not exhibit Severity One Defects or Severity Two Defects, (as such terms are defined
in Schedule C to the ADM SOW). 
If such defects are discovered and reported by Customer during the
warranty period, Supplier shall promptly remedy them at no additional cost to
Customer.


 


4.                                      CHARGES/ PAYMENTS


 


4.1                               Outstanding Charges.  Nothing in this Amendment shall affect
Customer’s payment obligations with respect to the Charges and other amounts
invoiced by Supplier prior to the Amendment Date (copies of which are attached
to Annex D hereto), which have not yet been paid by Customer (“Outstanding
Charges”).  Customer shall pay such
Outstanding Charges on or before the dates set forth in Annex D.


 


4.2                               Media Charges.    As of the Amendment Date, the Base Charges for the Media Support SOW
shall be adjusted to be as set forth in the Annex D.   Customer shall pay such Base
Charges on or before the dates set forth in Annex D.


 


4.3                               Transition Services.  Customer shall pay Supplier for the Transition Services described in Section 1.2
and Annex A to this Amendment the fixed monthly Charges identified as
charges for transition services in Annex D.  Customer shall pay such Charges on or before
the dates set forth in Annex D. Customer shall pay Supplier Charges for
any other services provided to Customer or its Affiliates under Section 1.2
on a time-and-materials basis at the following rates in accordance with Section 4.3
of the Master Agreement:


 


(a)                                  for services related to the IT Infrastructure
Statement of Work provided by the resource types identified in Attachment D7
of the “Charges” Schedule to the IT Infrastructure Statement of Work,
Supplier will charge Customer at the applicable “Standard Hourly Rates” set
forth therein;


 


(b)                                  for services related to the ADM Statement of
Work provided by the resource types identified in Attachment D4 of the “Charges”
Schedule to


 


[***] = Confidential treatment requested for redacted portion; redacted
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the
ADM Statement of Work, Supplier will charge Customer at the applicable “Standard
Hourly Rates”  set forth therein;


 


(c)                                  for services related to the Media Support
Statement of Work provided by the resource types identified in Attachment D1
of the “Charges” Schedule to the Media Support Statement of Work,
Supplier will charge Customer at the applicable “FTE Rates” set forth therein;
or


 


(d)                                  for all other such services, Supplier will
charge Customer at its standard commercial rates or such other rates as the
Parties agree in writing.


 


4.4                               Work
Order 3 Fees.  Customer shall remain
responsible for, and shall pay to Supplier, Charges for Services provided under
Work Order 3 as set forth in Work Order 3, as amended hereunder. All amounts
due to Supplier under Work Order 3 shall be due and payable within two (2) Business
Days of the occurrence of a payment trigger event  (as described in Work Order 3).


 


4.5                               Work
Order 3 Change Orders


 


(a)                                        Notwithstanding
anything to the contrary in Exhibit 11 to the Master Agreement, Change
Orders 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 to Work Order 3, attached as Annex
E to this Amendment, shall become effective as of the dates specified
therein.


 


(b)             On
or before the dates specified in Annex D, Customer shall pay Supplier
the amounts due under Change Orders 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18; provided that the payments due for Change
Orders 11 and 12 are conditioned upon Supplier’s completion of the Services to
be provided thereunder.


 


4.6                               Pass-Through Charges.  Customer shall remain responsible for, and shall pay to Supplier, Pass
Through Charges as provided in the Master Agreement.  Pass Through Charges include expenses for any
travel by Supplier Personnel in connection with the Services when approved in
advance by Customer in writing and according to Supplier travel guidelines.


 


4.7                               Amendment 1 Charges.  Customer shall remain responsible for, and shall pay to Supplier, Make
Whole Costs and Charges for transition-related services under Sections 1.1(b) and
3.2 of Amendment No. 1.


 


5.                                      TERMINATION CHARGES


 


Subject
to Customer’s payment of the amount identified in Annex D as a “Conditional
Payment” on or before the due dates set forth therein, notwithstanding anything
to the contrary in the Agreement, except as expressly provided in this Section:
(a) Customer shall not be responsible for payment of Termination Charges
or other similar charges or


 


[***] = Confidential treatment requested for redacted portion; redacted
portion has been filed separately with the Securities and Exchange Commission.


 


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penalties
in connection with this Agreement, and (b) Supplier shall waive, release
and forever discharge Customer and its Affiliates from and against any and all
claims for Termination Charges or other similar charges or penalties
attributable in connection with this Agreement, including any Claims that
Customer did not provide any required notice of termination.


 


5.1                               Make Whole Costs.


 


(a)                                  General. 
Customer shall reimburse Supplier for any costs described in this Section 5.1
in connection with the termination of the Services (“Make Whole Costs”).  Supplier shall use commercially reasonable
efforts to minimize Make Whole Costs. 
Notwithstanding Section 6.2, Supplier shall invoice Customer
for Make Whole Costs as and when they are incurred or become due, but Customer
shall not be responsible for any such expenses not identified within ninety
(90) days after April 1, 2009.  Supplier will provide all information
reasonably requested by Customer in connection with the Make Whole Costs
including any updates with respect to the timing or amount thereof.


 


(b)           Equipment.  Make
Whole Costs shall include the following for Cost Plus Assets and other
Equipment that Supplier uses exclusively for the provision of the
Services.  ***


 


(i)                                     Leased Equipment.  With
respect to such Equipment that is leased by Supplier, Make Whole Costs shall
consist of: (A) any termination or cancellation charges (or similar
amounts) that Supplier is contractually required to pay to a third party in
connection with the early termination of such lease, (B) subject to clause
(C), any non-cancelable charges that Supplier is contractually required to pay
to a third party during the remaining term of such lease; and (C) any
lease or other payments previously paid by Supplier under any Equipment leases
which are not fully amortized (on the basis regularly and consistently used by
Supplier for such items) as of the date that such Equipment leases are no
longer used in the provision of Services.


 


(ii)                                  Supplier Owned Equipment. With respect to such Equipment that is
owned by Supplier, Make Whole Costs shall consist of the net book value of such
Equipment as of the Amendment Date (calculated using a straight-line method
over a period equal to the applicable asset useful life), whereupon title to
such Equipment shall be transferred to Customer pursuant to Section 12.5(a) of
the Master Agreement.


 


(c)                                  Software and Other Third Party
Contracts.  Make Whole Costs shall include the following
for any Cost Plus Assets and other


 


[***] = Confidential treatment requested for redacted portion; redacted
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Supplier-Licensed Software or other Third Party contract (other than
any Equipment lease but including any Replacement Agreements) that Supplier
uses exclusively for the provision of the Services: (i) any termination or
cancellation charges (or similar amounts) that Supplier is contractually
required to pay to a Third Party in connection with the early termination of such
lease, license or other contract; (ii) subject to clause (iii), any
non-cancelable charges that Supplier is contractually required to pay to a
third party during the remaining term of such lease, license or other contract;
and (iii) any lease, license or other contract or other payments
previously paid by Supplier under the Third Party Contract which are not fully
amortized (on the basis regularly and consistently used by Supplier for such
items) as of the date that such Third Party Equipment leases are no longer used
in the provision of Services.  ***


 


(d)           Supplier Employees.  With
respect to Supplier’s employees who are primarily assigned  to
the provision of the Services on or after the Amendment Date (“Eligible
Supplier Employees”), Make Whole Costs shall consist of the actual
severance payments made to Eligible Supplier Employees pursuant to the
then-current Supplier severance policy, provided that (A) notice
of severance occurs within ninety (90) days after each such employee ceases to
perform Services, and (B) the severance payments made to such employees do
not exceed those available to similarly situated employees under the applicable
Supplier severance policy in place as of the Amendment Date.    ***


 


5.2          Termination Charges Schedule.  As of the Amendment Date, Schedule O
(Termination Charges) to the Media Support SOW shall be deleted in its entirety
and shall be of no further force or effect. 
For the avoidance of doubt, in accordance of Sections 1.2(b) and
(c) hereof, Schedules O (Termination Charges) to each of the
IT SOW and ADM SOW shall be terminated and of no further force or effect,
effective as of the Amendment Date and no payments shall be due thereunder.


 


6.                                      OTHER AGREEMENT CHANGES


 


6.1                               Service Level Credits.  Customer hereby waives, releases and forever discharges Supplier and
its Affiliates from and against any and all Claims for Service Level Credits or
for Losses arising from or related to Service Level Defaults alleged to have
occurred prior to the Amendment Date.


 


6.2                               Disputed Charges.  Section 4.7(b) of
the Master Agreement is hereby revised to provide in its entirety:


 


If the total Charges then under dispute pursuant to this Section 4.7
exceed ***Customer shall
pay the amount exceeding the ***to
Supplier under protest.  All amounts
determined through the Dispute Resolution Procedures to be owed by


 


[***] = Confidential treatment requested for redacted portion; redacted
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one Party to the other Party shall be paid or credited promptly upon
resolution of the Dispute, together with interest at the lesser of (i) the
highest rate allowed by Law and (ii) one percent (1%) simple interest per
month, pro-rated for partial months.


 


6.3                               Changes to the Media Pool.  Effective as of April 1, 2009: (i) Section 3.4(b)(1)(i) of
Schedule D to the Media Support SOW is deleted in its entirety, such
that no minimum number or “floor” shall apply in connection with FTEs in the
Media Pool, and (ii) Customer shall have the right to decrease the number
of FTEs in the Media Pool as specified in any written notice to Supplier under Section 1.1(d).


 


7.                                       LETTER OF CREDIT.


 


7.1                               General.  This Amendment shall be subject to the
condition precedent that Customer shall have delivered to Supplier, on or
before February 2, 2009 an irrevocable standby letter of credit in favor
of Supplier in the original face amount of $1,043,628 issued by a financial
institution acceptable to Supplier (it being acknowledged that Bridge Bank,
N.A. is acceptable to Supplier) (“Issuing Bank”) substantially in the
form of Annex F (the “Letter of Credit”).   The Letter of Credit shall have
an expiry date of nine months after its stated date of issuance.


 


7.2                               Draw Conditions. Each of the following events shall entitle
Supplier to draw on the Letter of Credit:


 


(a)                                  Supplier shall be entitled to draw on the
Letter of Credit in accordance with the terms thereof to pay those amounts due
under Work Order 3 and those amounts indicated as “LOC” in the “Source” column
in Annex D (collectively, the “Covered Charges”), as and when such
Covered Charges become due and payable to Supplier pursuant to the terms of
Work Order 3 and Annex D, provided that Supplier provides written notice
to Customer contemporaneously with drawing 
on the Letter of Credit.


 


(b)                                 If less than 15 days remain before the final
expiry date of the Letter of Credit and all Covered Charges have not been paid
to Supplier, Supplier may draw on the Letter of Credit in an amount equal to
the remaining amount available thereunder and shall hold the proceeds thereof
in escrow for application, as and when due, to the Covered Charges payable to
Supplier under Work Order 3 and Change Orders.


 


 7.3                            Other.  Notwithstanding
anything herein or in the Master Agreement to the contrary, with respect to any
amount that (i) should be reimbursed to Customer under this Amendment or
the Master Agreement; or (ii) is otherwise payable to Customer pursuant to
this Amendment or the Master Agreement, Customer may deduct the entire
undisputed amount owed to Customer against the charges otherwise payable or
expenses owed to Supplier under this Amendment or the


 


[***] = Confidential treatment requested for redacted portion; redacted
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Master
Agreement. If Supplier submits documentation to the Issuing Bank other than as
permitted hereunder or in Annex C, Supplier agrees that Customer shall
be entitled to apply to a court of competent jurisdiction for an injunction and
shall be granted an injunction against same without the necessity of posting
any bond, if the court having jurisdiction over such matter finds that Supplier
submitted such documentation other than in accordance with the terms hereof or
in Annex C. The foregoing shall not prevent Customer from seeking any
other remedy available to it in connection with such circumstance under this
Amendment, at law or in equity.


 


8.                                      MISCELLANEOUS


 


8.1                               No Waiver.  No
waiver or course of dealing shall be deemed to have occurred as a result of
this Amendment including with respect to Supplier’s right to receive
Termination Charges as specified in the Agreement.


 


8.2                               Due Authorization.  This
Amendment has been duly authorized, executed and delivered by each of Customer
and Supplier and constitutes a valid and binding agreement of it, enforceable
in accordance with its terms.


 


8.3                               Interpretation. 
Unless otherwise specified, capitalized terms used herein shall have the
respective meaning ascribed to each by the Agreement or Work Order 3 except as
otherwise expressly set forth in this Amendment.  The words “include” and “including” shall not
be construed as terms of limitation. 
Neither this Amendment nor any provision contained in this Amendment
will be interpreted in favor of or against any Party hereto because such Party
or its legal counsel drafted the Amendment or such provision.  The Parties hereby declare that the terms of
this Amendment have been completely read; and that each Party has discussed the
terms of this settlement with legal counsel of its choice and said terms are
fully understood and voluntarily accepted.


 


8.4                               Counterparts.  This Amendment may be executed by the Parties hereto in separate
counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the Parties hereto.


 


8.5                               Applicability of Provisions of
Agreement and Work Order 3.  This Amendment is subject to, and shall be
governed by, all of the provisions of the Agreement (including Work Order 3),
except to the extent such provisions are expressly modified by this
Amendment.  To the extent this Amendment
conflicts with, overlaps or is inconsistent with the terms or conditions of the
Agreement or Work Order 3, the terms of this Amendment shall control.  All other terms and conditions of the
Agreement shall remain in full force and effect and shall be unaffected by this
Amendment.


 


[***] = Confidential treatment requested for redacted portion; redacted
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8.6                               Entire Agreement.  This
Amendment, including the attachments, constitutes the final, entire and
exclusive agreement between the Parties with respect to their subject matter,
and there are no prior representations, understandings, or agreements relative
hereto which are not expressed herein.


 


SPACE BELOW INTENTIONALLY
BLANK — SIGNATURE PAGE FOLLOWS


 


[***] = Confidential treatment requested for redacted portion; redacted
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IN WITNESS WHEREOF, Customer and Supplier
have each caused this Amendment to be signed and delivered by its duly
authorized officer, all as of the Amendment Date.


 


 


	
  PEROT SYSTEMS CORPORATION

  	
   

  	
  MIVA, INC.

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
  Eric Hutto

  	
   

  	
  Name:

  	
  John Pisaris

  
	
  Title:

  	
  Vice President

  	
   

  	
  Title:

  	
  General Counsel