Exhibit 10.1


 


WITHOUT PREJUDICE


 


AND
SUBJECT TO CONTRACT


 


 


 


DATED      5 AUGUST 
2008


 


 


 


 


 


 


(1)  MIVA (UK)
LIMITED


 


and


 


(2)  SEBASTIAN BISHOP


 


 


 


 






 


COMPROMISE
AGREEMENT


 






 


 

















 


THIS AGREEMENT is made the 5th day of August 2008


 


between:-


 


1.  MIVA (UK) LIMITED
of 1st Floor, Euston Xchange, 194 Euston Road, London, NW1 2DA (“the Company”);
and


 


2.  Sebastian Bishop
of 44 Lennox Gardens, London SW1X 0DJ (“the Employee”).


 


RECITALS


 


(A)                              The Employee is employed by
the Company under the terms of an Amended and Restated Employment Agreement
dated 18 November 2005 (the “Employment Agreement”).


 


(B)                                The Company is entering into
this Agreement for itself and as agent for all Group Companies and is duly
authorised on their behalf.  A “Group
Company” is any company which is for the time being a subsidiary or a holding
company of the Company or a subsidiary of any such company (“subsidiary” and “holding
company” shall have the meaning set out in section 736 of the Companies Act
1985 as amended).


 


(C)                                The Employee has received
independent legal advice from a relevant independent adviser (“the Adviser”) as
to the terms and effect of this Agreement.


 


(D)                               The Employee and the Company
have agreed that the Employee will resign from his position as President and
Chief Marketing Officer of the Company as of the Termination Date, and, upon
request of the Company, as a Director of the Company and Group Companies at any
time.  Notwithstanding the foregoing, it
is expressly understood that nothing in this Agreement requires Employee to
resign as a director of MIVA, Inc.


 


(E)                                 The Employee believes that he
may have statutory claims or contractual claims against the Company and
therefore he could bring proceedings against the Company or its shareholders,
officers or employees for the claims particularised in clause 8.1 and 8.2.


 


IT IS AGREED as follows:


 


1                                         TERMINATION
OF EMPLOYMENT


 


The Employee’s
employment with the Company will be terminated effective on 5 August 2008
(“the Termination Date”).


 


2                                         PAYMENT OF
SALARY AND BENEFITS UNTIL TERMINATION DATE


 


2.1                                 The Employee will:


 


2.1.1                        be paid his normal
remuneration and benefits until the Termination Date (less such sums as the
Company was obliged by law to deduct by way of tax and National Insurance);


 





















 


2.1.2                        be paid for all holiday which
he had accrued but not taken as at the Termination Date (less such sums as the
Company was obliged by law to deduct by way of tax and National Insurance);


 


2.1.3                        receive his P45 following the
Termination Date.


 


3                                         COMPENSATION
FOR LOSS OF EMPLOYMENT


 


(a)           At the Termination Date, the equity
grants of MIVA, Inc. (the Company’s ultimate parent) shall be treated as
follows (“the Severance Payment”):


 


(i)                                                        the following service based
restricted stock units currently held by you will immediately vest as of the Termination
Date and the Company shall issue such restricted stock after payment for
personal withholding taxes that may be payable by you upon the vesting of such
restricted stock units:


 


	
  Grant Date

  	
   

  	
  No. of RSUs Vested

  
	
  1-2-07

  	
   

  	
  119,275

  
	
  1-2-08

  	
   

  	
  159,033

  



 


(ii)                                                     the following stock options
granted under the indicated plan shall fully vest and remain exercisable
throughout their term as if you were an employee of the Company:


 


	
  Grant Date/ Type

  	
   

  	
  No. of Options Exercisable

  	
   

  	
  Strike Price

  	
   

  	
  Term. Date

  
	
  7-1-04 / NSO

  	
   

  	
  733

  	
   

  	
  $

  	
  3.88

  	
   

  	
  7-1-14

  
								



 


(b)                                  The Company confirms and
represents that the Compensation Committee of the Board as defined in the stock
award incentive plan has approved and consented to the Employee receiving the
shares referred to pursuant to clauses 3(a)(i) and (ii) above.


 


(c)                                   The Company warrants that the
shares being issued under this Agreement are not subject to any restriction
other than the Company trading window restrictions and applicable securities
laws.    The shares are fully paid and
duly authorised and issued and non-accessible.


 


4                                         TAX
INDEMNITY


 


It is believed
by the parties that £30,000 of the
Severance Payment may in accordance with s403 Income Tax (Earnings and
Pensions) Act 2003 and HM Revenue & Customs’ practice be paid without
deduction of tax and employee National Insurance Contributions, but the
Employee remains responsible for any tax which the HM Revenue &
Customs may require to be paid in respect of the Severance Payment and the
Employee agrees to indemnify and keep indemnified the Company against any
demand for payment of tax, National Insurance contributions, interest, fines or
penalties thereon which the Company may receive.  The Company agrees to allow the Employee a
reasonable opportunity to challenge, defend, negotiate or compromise any such
claim for monies which are to be paid to HM Revenue & Customs.  The Company further agrees that they will
provide the Employee within 5 days of receipt, copies of all paperwork
surrounding any claim from HM Revenue and Customs.  The Employee will not be responsible for any
penalties that are payable as a result of the Company’s failure to respond to
HM Revenue & Customs.  If the
Employee pays any tax to the Company to forward to HM Revenue &
Customs, and the Company fail to forward this on to HM Revenue &
Customs thereby incurring additional penalties, the Employee will not be liable
for those costs or penalties incurred as a result of the Company’s omission.


 

















 


5                                         TREATMENT
OF REMAINING EQUITY GRANTS


 


Additionally,
at the Termination Date, the following equity grants of MIVA, Inc. shall
be treated as follows:


 


(i)                                                        the following performance
based restricted stock units currently held by you will immediately terminate
as of the Termination Date:


 


	
  Grant Date

  	
   

  	
  No. of RSUs Terminated

  
	
  1-2-07

  	
   

  	
  29,818

  
	
  1-2-08

  	
   

  	
  39,758

  



 


(ii)                                                     the following stock options
granted under the indicated plan shall terminate as of the Termination Date:


 


	
  Grant Date/ Type

  	
   

  	
  No. of Options Exercisable

  	
   

  	
  Strike Price

  	
   

  
	
  7-1-04/ ISO

  	
   

  	
  4,321

  	
   

  	
  $

  	
  23.14

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2-1-05/ ISO

  	
   

  	
  18,867

  	
   

  	
  $

  	
  15.90

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  7-1-04/ NSO

  	
   

  	
  120,679

  	
   

  	
  $

  	
  23.14

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2-1-05/ NSO

  	
   

  	
  11,883

  	
   

  	
  $

  	
  15.90

  	
   

  



 


6                                         COMPANY
PROPERTY


 


The Employee
warrants that on or before the Termination Date he will return to the Company
all keys, electronic passes, documents, recordings, photographs, computer
hardware, computer discs, microfiches, Company credit card, and any other
property belonging to the Company including any copies thereof.  The Employee warrants that he has not made or
retained copies of or extracts from documents or any notes of or information
relating to the business of the Company, caused others to do so or distributed
the same to persons other than those authorised by the Company to be in
possession of such documents.  The
Company acknowledges that the Employee may remove his personal files and
property (including art, laptop, mobile phone and mementos) from the Company’s
London office.


 


7                                         EXPENSES


 


The Company
warrants that on or before the Termination Date it will reimburse Employee  for all expenses reasonably and properly incurred
and accounted for in accordance with Company policy in connection with the
Employee’s employment up to the Termination Date.


 


8                                         FULL AND
FINAL SETTLEMENT AND WAIVER OF CLAIMS


 


8.1                                 But for this Agreement, the
Employee acknowledges that he could bring proceedings against the Company or a
Group Company or its/their respective officers, directors, shareholders or
employees for the contractual, statutory and tortious claims listed below (“the
Claims”):


 


i                                             any claim for restricted stock
units, share options or for any share of equity in the Company;


 


ii                                          any claim for unpaid salary,
bonuses, commission, overtime, holiday pay, sick pay or reimbursement of
expenses;


 


iii                                       any claim for damages for
breach of contract however arising, including in respect of stigma;


 





















 


iv                                      any claim for unfair dismissal
or a redundancy payment or any other termination payment;


 


v                                         any claim for unlawful
deduction of wages or any other claim under Part II of the Employment
Rights Act 1996;


 


vi                                      any claim under the Employment
Relations Act 1999;


 


vii                                   any claim under the Employment
Act 2002;


 


viii                                any claim under the Working
Time Regulations 1998;


 


ix                                        any claim under the Employment
Equality (Age) Regulations 2006 including any claim for direct or indirect
discrimination, harassment and/or for victimisation;


 


x                                           any claim for physical or
psychiatric illness relating to any act of discrimination;


 


xi                                        any personal injury claims
that the Employee is aware of or should reasonably be aware of at the time of
signing this Agreement; and


 


xii                                     any claim under the Protection
from Harassment Act 1997.


 


8.2                                 The Employee accepts the terms
of this Agreement and the Severance Payment in full and final settlement of the
Claims and all and any other claims, whether under contract, at common law,
under statute or pursuant to European Community Law which the Employee has, or
may have, against the Company or any Group Company and it’s/their officers,
employees and ex-employees arising directly or indirectly from the Employee’s
employment by the Company or its termination save for any claim in respect of
accrued pension rights save for any claim in respect of accrued pension rights
and any latent personal injury.


 


8.3                                 The Employee warrants that he
agrees that the circumstances set out in Recital (D) are accurate and that
he has raised any and all claims that he has or may be entitled to make against
the Company in respect of his employment and its termination, whether
contractual, statutory or otherwise and that they are fully particularised in
clause 8.1 and 8.2 and that other than the claims listed he warrants that he
has no further claims or potential claims against the Company.


 


8.4                                 The Employee warrants that he
has not already instituted a claim or claims against the Company.


 


8.5                                 The Company enters into this
Agreement in reliance on the warranties given by the Employee in clause 6.  The Employee acknowledges that in the event
of any proceedings being commenced by him in respect of any claims referred to
in paragraph 8.1, 8.2 or otherwise the Severance Payment shall be repaid to the
Company and shall be recoverable as a debt from the Employee.


 


8.6                                 The Employee warrants that he
has provided the Adviser with all available information which the Adviser
requires or may require in order to advise whether he has any such claims.


 


8.7                                 The Employee warrants that on
the date of this Agreement he is not aware of any conditions, illness or injury
that may give rise to a personal injury claim against the Company.


 





















 


9                                         EMPLOYEE’S
INDEPENDENT LEGAL ADVICE


 


9.1                                 The Employee warrants that he
has before signing this Agreement taken advice from Krishna Santra of Matthew
Arnold & Baldwin (“the Adviser”) on the terms and effect of this
Agreement and in particular its effect on his ability to pursue a complaint
before an Employment Tribunal, the County Court or High Court.


 


9.2                                 It is a condition of this
Agreement that the Adviser provides the Certificate annexed to this Agreement
at Schedule 1.


 


9.3                                 MIVA, Inc.
shall within 30 days of receipt pay against a properly constituted VAT invoice
addressed to the Employee but marked payable by the Company, a sum not
exceeding £2,500 plus VAT to the Adviser in respect of legal fees incurred in
taking independent legal advice in relation to this Agreement.


 


10                                  CONFIDENTIALITY


 


10.1                           In consideration of the sum of
£500 less such sums as the Company is obliged by law to deduct by way of tax
and National Insurance the Employee acknowledges and agrees that he continues
to be bound by:-


 


10.1.1                  his implied duties of confidentiality in
respect of Confidential Information; and


 


10.1.2                  The provisions of the express
confidentiality and post termination obligations contained in clauses 9 and 10
of his Amended and Restated Employment Agreement with the Company dated 18 November 2005.


 


10.2                           For the purposes of this
Agreement “Confidential Information” shall mean any information relating to the
Company or the business, prospective business, technical processes, computer
software, intellectual property rights or finances of the Company including
without limitation details of suppliers and their terms of business, details of
customers and their requirements, the prices charged to and terms of business
with the customers, marketing plans and sales forecasts, financial information,
results and forecasts (save to the extent that these are included in published
audited accounts), any proposals relating to the acquisition or disposal of the
Company or business or any part thereof or to any proposed expansion or
contraction of activities, details of employees and officers and of the
remuneration and other benefits paid to them, information relating to research
activities, inventions, secret processes, designs, formulae and product lines,
which comes into the employees possession by virtue of his employment, and any
other information which the Company could reasonably be expected to regard as
confidential, whether or not such information is reduced to a tangible form or
marked in writing as “confidential” and any information which has been or may
be derived or obtained from such information.


 


10.3                           The Employee agrees not to
make any statements to the press or other media in connection with the Company
and/or any Group Company, the termination of his employment or this Agreement.


 


10.4                           The Employee agrees not to
make, or cause to be made, any derogatory or critical or disparaging remarks,
comments or statements (whether orally or in writing) about the Company, its
suppliers, customers, clients, investors or advisers, its shareholders,
officers or employees.   The Company shall
cause its current executive officers not to make any derogatory or critical or
disparaging remarks, comments or statements (whether orally or in writing)
about the Employee.


 





















 


10.5                           Each Party agrees that it will
not disclose the fact or contents of this Compromise Agreement without the
prior written consent of the other party except to professional advisers, HM
Revenue & Customs or as otherwise required by law and that they will
otherwise make no statement to any person or body relating to the termination
of his employment nor any statement of any kind which is calculated or likely
to diminish the reputation of the other party.


 


11                                  RESIGNATION
FROM OFFICE


 


11.1                           On signing this Agreement the
Employee will provide to the Company his written resignation from the office
that he holds with the Company in the form attached at Schedule 2 with effect
at the Termination Date and shall execute such documents and do such other
things as are necessary to give effect to such resignation.  For the avoidance of doubt, the Employee will
continue to remain as a board director of the Company until he resigns or is
removed from office by the shareholders.


 


11.2                           Further it is understood
between the parties that the Employee may receive further shares in his
capacity as a board director after the Termination Date.


 


12                                  LEGAL &
OTHER ASSISTANCE


 


12.1                           The Employee agrees that he
will, at the request of the Company, provide the Company and/or any Group
Company with such assistance as it or they may require in the conduct of any
legal proceedings, investigation or enquiry in respect of which the Company or
its advisers believe that the Employee may be of assistance.


 


12.2                           If the Employee is required to
provide assistance to the Company and/or any Group Company, in accordance with
clause 12.1 the Company will reimburse the Employee for any reasonable expenses
which the Employee may incur and which are evidenced by appropriate receipts or
invoices.


 


13                                  EMPLOYMENT
LEGISLATION


 


The Company
and the Employee confirm that this Agreement satisfies the conditions
regulating compromise agreements and compromise contracts under Section 203(3) Employment
Rights Act 1996, Section 77 (4A) Sex Discrimination Act 1975, Section 72
(4A) Race Relations Act 1976, Section 288 (2B) Trade Union and Labour Relations
(Consolidation) Act 1992, Schedule 3A Part 1 Disability Discrimination Act
1995, Section 35(3) Working Time Regulations 1998 and Section 49(4) National
Minimum Wage Act 1998, Regulation 41(4) Transitional Information &
Consultation of Employees Regulations 1999, Regulation 9 of the Part Time
Workers (Prevention of Less Favourable Treatment) Regulations 2000, Regulation
10 of the Fixed Term Employees (Prevention of Less Favourable Treatment)
Regulations 2002, Schedule 4, Paragraph 2 (2) of the Employment Equality
(Religion or Belief) Regulations 2003, Schedule 4, Paragraph 2(2) of the
Employment Equality (Sexual Orientation) Regulations 2003, Regulation 40(4) Information
and Consultation of Employees Regulations 2004 and Schedule 5, Paragraph 2(2) of
the Employment Equality (Age) Regulations 2006 (together referred to as “the
Acts”).


 


14                                  GOVERNING
LAW AND JURISDICTION


 


This Agreement
is governed by the law of England and Wales and any dispute is subject to the
exclusive jurisdiction of the Courts and Tribunals of England and Wales.


 


 





















 


15                                  MISCELLANEOUS


 


15.1                           Any Group Company, subject at
all times to the provision of the Contracts (Rights of Third Parties) Act 1999,
may enforce the terms set out in this Agreement.


 


15.2                           This Agreement although marked
“without prejudice” will upon signature by all parties be treated as an open
document evidencing an agreement binding on the parties.


 


15.3                           This Agreement may be executed
in any number of counterparts, each of which, when executed and delivered,
shall be an original, and such counterparts or duplicates together shall
constitute one and the same instrument.


 


15.4                           Nothing in this Agreement
supersedes the Company’s obligations under Section 7 of the Employment
Agreement.


 


	
  SIGNED by

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  For and on
  behalf of MIVA (UK) LIMITED

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  in the
  presence of:)

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  SIGNED by SEBASTIAN BISHOP

  	
  /s/ Seb
  Bishop

  	
  )

  	
   

  
	
   

  	
   

  	
   

  
	
  in the
  presence of:

  	
   

  	
   

  	
  )

  	
   

  
	
   

  	
   

  	
   

  	
   

  
									



 

















 


SCHEDULE
1


 


Adviser’s
Certificate


 


 


I confirm
that:


 


 


 


1.                                       I am a relevant independent
adviser within the meaning of the Acts as defined in clause [10] of this
Agreement.


 


2.                                       I have advised the Employee of
the terms and effect of this Agreement and in particular its affect on his
abilities to pursue a claim before an Employment Tribunal.


 


3.                                       There is in force a contract
of insurance or indemnity provided for members of a professional body covering
the risk of a claim by the Employee in respect of loss arising in consequences
of my advice.


 


	
  Signed:   

  	
  /s/ Krishna
  Santra

  
	
   

  	
   

  
	
  Name:   

  	
  KRISHNA
  SANTRA

  



 


[IN CAPITALS]


 


Capacity:   Solicitor


 


(eg.
Solicitor, Barrister, Advocate, Authorised litigator, Officer of Trade Union,
Authorised Advice Centre Worker)


 

















 


SCHEDULE
2


 


To the
Company Secretary of MIVA (UK) Limited


First Floor
Euston Xchange


194 Euston
Road


London


NW1 2DA


 


 


5 August 2008


 


 


Dear
Company Secretary


 


RESIGNATION
AS President and Chief Marketing Officer


 


I hereby
confirm my resignation as a President and Chief Marketing Officer of MIVA (UK)
Limited (“the Company”) with immediate effect.  
To the extent I may be deemed an officer of MIVA, Inc., I hereby
also confirm my resignation therefrom with immediate effect.


 


I confirm that
I have no claim whatsoever against the Company arising from my appointment as a
President and Chief Marketing Officer or its termination either under Common
Law or Statute or otherwise howsoever arising from my resignation of this
office.


 


To the extent
that any such claim exists or the Company could have any such debt or other
obligation to me, I irrevocably and unconditionally waive that claim and that
right in respect of debt or other obligation owed to me, and release the
Company from any liability whatsoever in respect of it.


 


Yours
sincerely


 


	
  /s/ Seb
  Bishop

  
	
   

  
	
   

  
	
   

  
	
  Seb
  Bishop