SPS COMMERCE, INC. 2002 MANAGEMENT INCENTIVE AGREEMENT
Exhibit 10.15
SPS COMMERCE, INC.
2002 MANAGEMENT INCENTIVE AGREEMENT
2002 MANAGEMENT INCENTIVE AGREEMENT
THIS 2002 MANAGEMENT INCENTIVE AGREEMENT (this “Agreement”) is entered into effective as of
the 1st day of July, 2002, by and between SPS Commerce, Inc., a Delaware corporation
(the “Company”), and Xxxxx Xxxxx (“Employee”).
WHEREAS, the Company has in the past considered the possible sale of the Company, and may
consider such a sale in the future; and
WHEREAS, subject to the terms and under the conditions herein, the Company desires to provide
an additional inducement for Employee to assist the Company at such time (if any) during which the
Company considers pursuing such a sale.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and conditions
contained herein, the parties hereto agree as follows:
1. Sale Bonus. Subject to the conditions and limitations herein (including without
limitation Sections 1(b), 1(c), 1(d) and 1(e) below), if a Sale (as hereinafter defined) of the
Company occurs, the Company shall pay to Employee an amount equal to the Sale Bonus (as hereinafter
defined) as follows:
(a) Calculation. If the Purchase Price (as hereinafter defined) to the Company in
respect of any Sale is at least $25,000,000, then the “Sale Bonus” shall be an amount equal
to .115% (the “Designated Percentage”) of the amount of the Purchase Price that (x) exceeds
$25,000,000 and (y) does not exceed $65,000,000, subject to adjustment and paid as follows:
(i) The Company shall pay the Sale Bonus to Employee within 5 days after the closing
date of the Sale.
(ii) If Employee’s employment with the Company terminates for any or no reason (whether
voluntary, involuntary, or with or without cause, by death or for any other reason), such
termination shall not affect the Company’s obligation to pay the Sale Bonus to Employee, or
Employee’s rights thereto, in the event of a Sale.
(iii) The form of payment of any Sale Bonus due hereunder shall be in the sole
discretion of the Board of Directors of the Company, and may consist of cash, securities,
other property, or a combination of the foregoing, all as decided by the Board of Directors.
For the avoidance of doubt, the following example of the above calculation is set forth: If a Sale
occurs with a Purchase Price of $70,000,000, then the amount of the Sale Bonus (to the extent
otherwise due hereunder) would be $46,000, which is the amount equal to the Designated Percentage
of $40,000,000 (which $40,000,000 is in turn the amount of such Purchase Price that exceeds
$25,000,000 but does not exceed $65,000,000).
(b) Minimum Purchase Price. If the Purchase Price to the Company in respect of any
Sale of the Company is less than $25,000,000, then Employee shall not be entitled to any Sale Bonus
or other payment pursuant to this Agreement, and all of the Company’s obligations to pay the Sale
Bonus shall be canceled and be of no effect.
(c) Termination of Right to Receive Payments. Notwithstanding any other provision
herein, if a Sale does not occur by June 30, 2012, then the Company’s obligation to make any
payment to Employee pursuant to this Agreement, and all of Employee’s rights thereto, shall be
canceled and be of no effect.
(d) Possible Reduction of Payments Pursuant to Section 280G of the Internal Revenue
Code. Notwithstanding any provision to the contrary contained herein, if the payments to which
Employee may become entitled under this Section 1, either alone or together with other payments (if
any) in the nature of compensation to Employee which are contingent on a change in the ownership or
effective control of the Company or in the ownership of a substantial portion of the assets of the
Company or otherwise, would constitute a “parachute payment” as defined in Section 280G of the
Internal Revenue Code of 1986, as amended (the “Code”) (or any successor provision thereto,
together “Section 280G”), such cash payments and/or such other benefits shall be reduced (but not
below zero) to the largest aggregate amount as will result in no portion thereof being subject to
the excise tax imposed under Section 4999 of the Code (or any successor provision thereto, together
“Section 4999”), or being non-deductible to the Company for federal income tax purposes pursuant to
Section 280G. Company shall determine the amount of any reduction to be made pursuant to this
Section 1(d) and shall select from among the foregoing benefits and payments those that shall be
reduced.
(e) Company Right to Amend Agreement. Notwithstanding any provision to the contrary
contained herein, Employee acknowledges that an independent committee of the Company’s Board of
Directors (“independent” in that it does not contain representatives of the preferred stockholders
of the Company), in its sole discretion, may at any time (upon notice to Employee) amend this
Agreement to reflect an equitable (as determined by the such committee in its sole discretion)
adjustment as a result of any (i) merger or acquisition made by the Company, (ii) additional rounds
of financing or (iii) similar events that the Company enters into prior to the occurrence of a
Sale, but only to the extent such committee determines that such events independently increased the
Purchase Price and that an equitable adjustment is required as a result. Such an amendment may
include, without limitation, a reduction in the Designated Percentage or other revisions to the
calculation of the Sale Bonus. EMPLOYEE AGREES THAT ANY SUCH AMENDMENT SHALL BE IN THE SOLE
DISCRETION OF THE INDEPENDENT COMMITTEE OF THE COMPANY’S BOARD OF DIRECTORS AND SHALL BE BINDING
UPON EMPLOYEE. EMPLOYEE WAIVES ANY AND ALL RIGHTS EMPLOYEE MAY HAVE TO CHALLENGE SUCH AMENDMENT.
(f) Certain Definitions. As used herein, the following terms shall have the following
respective meanings:
(i) “Sale” shall mean the actual closing (if any) of (A) the sale of all or
substantially all of the assets of the Company, other than to one or more persons who
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are stockholders of, or employed by, the Company on the date of this letter, an entity
controlled by or affiliated with such persons, an entity controlled by, or under common
control with, the Company, or any of them, (B) the sale of more than 70% of the voting stock
of the Company (on an as-converted basis) in a single transaction or series of transactions
other than to one or more persons who are stockholders of, or employed by, the Company on
the date of this Agreement, an entity controlled by or affiliated with such persons, an
entity controlled by, or under common control with, the Company, or any of them, or (C) a
merger or consolidation of the Company resulting in more than 70% of the voting power of the
Company or of the surviving or resulting corporation being vested in persons other than one
or more persons who are stockholders of, or employed by, the Company on the date of this
Agreement, an entity controlled by or affiliated with such persons, an entity controlled by,
or under common control with, the Company, or any of them.
(ii) “Purchase Price” shall mean the aggregate of (A) cash amounts payable to
the Company as consideration pursuant to the terms of the Sale (including any
non-competition payments payable to the Company, but excluding any amounts payable to any
employees in connection with the Sale); and (B) any bona fide debt (i.e., debt represented
by a written promissory note or similar instrument) of the Company assumed by the purchaser
as consideration pursuant to the terms of the Sale. Notwithstanding the foregoing, to the
extent any amount of the Purchase Price is (x) subject to a post-closing adjustment (for
example, to reflect actual inventory or accounts receivables), or (y) payable only as an
“earn-out” contingency upon certain performance thresholds being achieved (i.e., minimum
revenue or earnings thresholds), then the Company shall, in consultation with its certified
public accountant, have the right in its discretion to determine an appropriate amount (if
any) to reflect the probable amount (as of the date of closing of the Sale) payable (or
other adjustment to be made) as a result of such an adjustment or earn-out contingency, and
in such event Employee hereby waives to the fullest extent permitted by law, any and all
rights to challenge or question such determination by the Company, it being understood by
Employee that any such determination would be based upon assumptions and projections that
might well be proven inaccurate.
2. Effect on Other Bonus or Severance Programs. Any payments made under Section 1(a)
above shall be in addition to, and not in lieu of, any payments (if any) that may become due to
Employee under any existing or future executive management bonus or severance program of the
Company or any agreements in respect thereof.
3. Sale at Company’s Discretion; No Obligation to Inform. Employee hereby
acknowledges and agrees that any decision to consider or pursue a Sale (and to establish the amount
of any consideration related thereto) shall be in the Company’s sole discretion, and that the
Company has no obligation to Employee (including without limitation pursuant to this Agreement) to
(a) cause a Sale to occur, including without limitation to seek
or entertain offers from third parties relating to any such matter, (b) negotiate with any third party regarding any
such matter, (c) seek any alternative to any such matter, or (d) establish the amount of any
consideration relating to a Sale in a manner that would cause the Company to be obligated to pay
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a Sale Bonus or maximize the amount of any Sale Bonus. Employee further acknowledges and agrees that
the Company shall have no obligation to disclose to Employee the status of the Company’s efforts in
pursuing a Sale.
4. Certain Representations, Warranties and Covenants of Employee. Employee hereby
represents, warrants and covenants to the Company as follows:
(a) While an employee of the Company, Employee shall assist the Company in preparation for,
and in the consummation of, a Sale if requested by the Company, through the performance of
Employee’s normal and customary employment duties, as well as those duties as may be reasonably
requested by the Company from time to time, including without limitation assisting in the
compilation and analysis of data relating to the Company.
(b) Employee acknowledges and agrees that the Company’s entering into this Agreement, and its
contingent obligations to make payments pursuant to Section 1 hereof, constitute full and complete
consideration for each of Employee’s obligations hereunder.
5. No Right to Employment or Benefits. This Agreement does not constitute or imply
(a) any obligation or undertaking to employ Employee for any period of time or in any position, or
(b) any limitation on the right of the Company to terminate Employee’s employment at any time with
or without notice or cause.
6. Withholding/Reduction of Payments. All payments hereunder are subject to
withholding of all taxes and other amounts required by law to be withheld or paid to others. The
Company may, in its discretion and to the full extent permitted by law, apply a payment otherwise
due Employee to pay any amounts, debts or claims owed to the Company by Employee, until all such
amounts, debts and claims are paid in full.
7. No Waiver. No delay or failure by any party hereto to insist, in any one or more
instances, upon performance of any of the terms and conditions of this Agreement or to exercise any
rights or remedies hereunder shall constitute a waiver or relinquishment of such rights or remedies
or any other rights or remedies hereunder.
8. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of the successors, legal representatives and assigns of the parties hereto;
provided, however, that Employee shall not have any right to assign, pledge or
otherwise dispose of or transfer any interest in this Agreement or any payment hereunder, whether
directly or indirectly or in whole or in part, without the prior written consent of the Company,
and any such attempted assignment, pledge or other disposition or transfer in contravention of the
foregoing shall be null and void. Notwithstanding the foregoing, in the event of Employee’s death,
the Employee’s estate and/or legal beneficiaries shall be entitled to the rights of Employee
hereunder in the event of a Sale occurring prior to June 30, 2012.
9. Separate Representation. Employee hereby acknowledges that Employee has been
advised, and has had ample opportunity, to obtain independent advice and representation from
counsel of Employee’s own selection in connection with this Agreement and has not relied
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to any extent on any officer, director or shareholder of, or counsel to, the Company in deciding to enter
into this Agreement.
10. Amendment; Complete Agreement. No provision of this Agreement may be altered,
amended, modified, waived or discharged in any manner whatsoever except (i) by the independent
committee pursuant to Section 1(e) and (ii) by written agreement executed by both parties hereto.
This Agreement contains the entire understanding of the parties hereto with respect to the subject
matter hereof.
11. Governing Law. This Agreement shall be construed under and governed by the laws
of the State of Minnesota, without giving effect to principles of conflicts of law.
12. Severability. In the event that any portion of this Agreement is held to be
invalid or unenforceable for any reason, such invalidity or unenforceability shall not affect the
other portions of this Agreement, and the remaining covenants, terms and conditions or portions
hereof shall remain in full force and effect, and any court of competent jurisdiction may so modify
the objectionable provision so as to make it valid, enforceable and as close in meaning and
economic effect to the original provision as possible.
13. Counterparts. This Agreement may be executed by facsimile signature and in
counterparts, each of which shall be deemed an original, and all of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Management Incentive Agreement as of the
date first above written.
| SPS COMMERCE, INC. | EMPLOYEE | |||||
By:
|
/s/ Xxxxxx Xxxxx | /s/ Xxxxx Xxxxx | ||||
| Name: Xxxxxx Xxxxx | Xxxxx Xxxxx | |||||
| Its: CEO | ||||||
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