Attached files
file | filename |
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S-1/A - FORM S-1/A - SPS COMMERCE INC | c54716a1sv1za.htm |
EX-23.1 - EX-23.1 - SPS COMMERCE INC | c54716a1exv23w1.htm |
EX-10.1 - EX-10.1 - SPS COMMERCE INC | c54716a1exv10w1.htm |
EX-4.2 - EX-4.2 - SPS COMMERCE INC | c54716a1exv4w2.htm |
EX-10.5 - EX-10.5 - SPS COMMERCE INC | c54716a1exv10w5.htm |
EX-10.3 - EX-10.3 - SPS COMMERCE INC | c54716a1exv10w3.htm |
EX-10.2 - EX-10.2 - SPS COMMERCE INC | c54716a1exv10w2.htm |
EX-10.9 - EX-10.9 - SPS COMMERCE INC | c54716a1exv10w9.htm |
EX-10.14 - EX-10.14 - SPS COMMERCE INC | c54716a1exv10w14.htm |
EX-10.10 - EX-10.10 - SPS COMMERCE INC | c54716a1exv10w10.htm |
EX-10.12 - EX-10.12 - SPS COMMERCE INC | c54716a1exv10w12.htm |
EX-10.17 - EX-10.17 - SPS COMMERCE INC | c54716a1exv10w17.htm |
EX-10.15 - EX-10.15 - SPS COMMERCE INC | c54716a1exv10w15.htm |
EX-10.11 - EX-10.11 - SPS COMMERCE INC | c54716a1exv10w11.htm |
EX-10.13 - EX-10.13 - SPS COMMERCE INC | c54716a1exv10w13.htm |
EX-10.18 - EX-10.18 - SPS COMMERCE INC | c54716a1exv10w18.htm |
EX-10.4 - EX-10.4 - SPS COMMERCE INC | c54716a1exv10w4.htm |
Exhibit 10.19
SPS COMMERCE, INC.
INDEMNIFICATION AGREEMENT
INDEMNIFICATION AGREEMENT
This
Indemnification Agreement (the Agreement) is made
and entered into as of , 2009
between SPS Commerce, Inc., a Delaware corporation (the Company), and Archie C.
Black (Indemnitee).
WITNESSETH THAT:
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate
itself to indemnify, and to advance expenses on behalf of, directors to the fullest extent
permitted by applicable law so that they will serve or continue to serve the Company free from
undue concern that they will not be so indemnified; and
WHEREAS, this Agreement is intended to clarify Indemnitees entitlement, in his capacity as a
director of the Company, to the maximum indemnity afforded directors under the Delaware General
Corporation Law (the DGCL) and is a supplement to and in furtherance of the provision calling for
indemnification of directors contained in the By-laws or Certificate of Incorporation
(collectively, the Charter Documents) of the Company and any resolutions adopted pursuant
thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of
Indemnitee thereunder.
NOW, THEREFORE, in consideration of Indemnitees agreement to serve as a director from and
after the date hereof, the parties hereto agree as follows:
1. Indemnity of Indemnitee. The Company hereby agrees to hold harmless and indemnify
Indemnitee to the fullest extent permitted by law, as such may be amended from time to time. In
furtherance of the foregoing indemnification, and without limiting the generality thereof:
(a) Proceedings Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section l(a) if, by
reason of his or her Corporate Status (as hereinafter defined), the Indemnitee is, or is threatened
to be made, a party to or participant in any Proceeding (as hereinafter defined) other than a
Proceeding by or in the right of the Company. Pursuant to this Section 1(a), Indemnitee
shall be indemnified against all Expenses (as hereinafter defined), judgments, penalties, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee, or on his or her behalf,
in connection with such Proceeding or any claim, issue or matter therein, if the Indemnitee acted
in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to the
best interests of the Company, and with respect to any criminal Proceeding, had no reasonable cause
to believe the Indemnitees conduct was unlawful.
(b) Proceedings by or in the Right of the Company. Indemnitee shall be entitled to
the rights of indemnification provided in this Section 1(b) if, by reason of his or her
Corporate Status, the Indemnitee is, or is threatened to be made, a party to or participant in any
Proceeding brought by or in the right of the Company. Pursuant to this Section 1(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably incurred by the
Indemnitee, or on the Indemnitees behalf, in connection with such Proceeding if the Indemnitee
acted in good faith and in a manner the Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company; provided, however, if applicable law so provides, no
indemnification against such Expenses shall be made in respect of any claim, issue or matter in
such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company unless
and to the extent that the Court of Chancery of the State of Delaware shall determine that such
indemnification may be made.
(c) Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, to the extent that Indemnitee is, by reason
of his or her Corporate Status, a party to and is successful, on the merits or otherwise, in any
Proceeding, Indemnitee shall be indemnified to the maximum extent permitted by law, as such may be
amended from time to time, against all Expenses actually and reasonably incurred by Indemnitee or
on
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 1 |
Indemnitees behalf in connection therewith. If Indemnitee is not wholly successful in such
Proceeding but is successful, on the merits or otherwise, as to one or more but less than all
claims, issues or matters in such Proceeding, the Company shall indemnify Indemnitee against all
Expenses actually and reasonably incurred by Indemnitee or on Indemnitees behalf in connection
with each successfully resolved claim, issue or matter. For purposes of this Section and without
limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with
or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
2. Additional Indemnity. In addition to, and without regard to any limitations on,
the indemnification provided for in Section 1 of this Agreement, the Company shall and
hereby does indemnify and hold harmless Indemnitee against all Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on
Indemnitees behalf if, by reason of his or her Corporate Status, Indemnitee is, or is threatened
to be made, a party to or participant in any Proceeding (including a Proceeding by or in the right
of the Company), including, without limitation, all liability arising out of the negligence or
active or passive wrongdoing of Indemnitee. Except as provided in Section 13, the only limitation
that shall exist upon the Companys obligations pursuant to this Agreement shall be that the
Company shall not be obligated to make any payment to Indemnitee that is finally determined (under
the procedures, and subject to the presumptions, set forth in Sections 6 and 7
hereof) to be unlawful.
3. Contribution.
(a) Whether or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any threatened, pending or completed action, suit or proceeding involving
Indemnitee by reason of his Corporate Status in which the Company is jointly liable with Indemnitee
(or would be if joined in such action, suit or proceeding), the Company shall pay, in the first
instance, the entire amount of any judgment or settlement of such action, suit or proceeding
without requiring Indemnitee to contribute to such payment and the Company hereby waives and
relinquishes any right of contribution it may have against Indemnitee. The Company shall not enter
into any settlement of any action, suit or proceeding involving Indemnitee by reason of his
Corporate Status in which the Company is jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding) unless such settlement provides for a full and final release of
all claims asserted against Indemnitee by reason of his Corporate Status.
(b) Without diminishing or impairing the obligations of the Company set forth in the preceding
subparagraph, if, for any reason, Indemnitee shall elect or be required to pay all or any portion
of any judgment or settlement in any threatened, pending or completed action, suit or proceeding
involving Indemnitee by reason of his Corporate Status in which the Company is jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), the Company shall contribute
to the amount of Expenses, judgments, fines and amounts paid in settlement actually and reasonably
incurred and paid or payable by Indemnitee by reason of his Corporate Status in proportion to the
relative benefits received by the Company and all officers, directors or employees of the Company,
other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in such
action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, from the
transaction from which such action, suit or proceeding arose; provided, however, that the
proportion determined on the basis of relative benefit may, to the extent necessary to conform to
law, be further adjusted by reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly liable with Indemnitee
(or would be if joined in such action, suit or proceeding), on the one hand, and Indemnitee, on the
other hand, in connection with the events that resulted in such expenses, judgments, fines or
settlement amounts, as well as any other equitable considerations which the Law may require to be
considered. The relative fault of the Company and all officers, directors or employees of the
Company, other than Indemnitee, who are jointly liable with Indemnitee (or would be if joined in
such action, suit or proceeding), on the one hand, and Indemnitee, on the other hand, shall be
determined by reference to, among other things, the degree to which their actions were motivated by
intent to gain
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 2 |
personal profit or advantage, the degree to which their liability is primary or secondary and
the degree to which their conduct is active or passive.
(c) The Company hereby agrees to fully indemnify and hold Indemnitee harmless from any claims
of contribution relating to Indemnitees Corporate Status which may be brought by officers,
directors or employees of the Company, other than Indemnitee, who may be jointly liable with
Indemnitee.
(d) To the fullest extent permissible under applicable law, if the indemnification provided
for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu
of indemnifying Indemnitee, shall contribute to the amount incurred by Indemnitee by reason of his
Corporate Status, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid
in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event
under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the
circumstances of such Proceeding in order to reflect (i) the relative benefits received by the
Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such
Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees
and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
4. Indemnification for Expenses of a Witness. Notwithstanding any other provision of
this Agreement, to the extent that Indemnitee is, by reason of his or her Corporate Status, a
witness, or is made (or asked to) respond to discovery requests, in any Proceeding to which
Indemnitee is not a party, Indemnitee shall be indemnified against all Expenses actually and
reasonably incurred by Indemnitee or on Indemnitees behalf in connection therewith.
5. Advancement of Expenses. Notwithstanding any other provision of this Agreement,
the Company shall advance all Expenses incurred by or on behalf of Indemnitee in connection with
any Proceeding by reason of Indemnitees Corporate Status within thirty (30) days after the receipt
by the Company of a statement or statements from Indemnitee requesting such advance or advances
from time to time, whether prior to or after final disposition of such Proceeding. Such statement
or statements shall reasonably evidence the Expenses incurred by Indemnitee and shall include or be
preceded or accompanied by a written undertaking by or on behalf of Indemnitee to repay any
Expenses advanced if it shall ultimately be determined that Indemnitee is not entitled to be
indemnified against such Expenses. Any advances and undertakings to repay pursuant to this
Section 5 shall be unsecured and interest free.
6. Procedures and Presumptions for Determination of Entitlement to Indemnification.
It is the intent of this Agreement to secure for Indemnitee rights of indemnity with respect to his
Corporate Status that are as favorable as may be permitted under the DGCL and public policy of the
State of Delaware. Accordingly, the parties agree that the following procedures and presumptions
shall apply in the event of any question as to whether Indemnitee is entitled to indemnification
under this Agreement:
(a) To obtain indemnification under this Agreement, Indemnitee shall submit to the Company a
written request, including therein or therewith such documentation and information as is reasonably
available to Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Secretary of the Company shall, promptly upon
receipt of such a request for indemnification, advise the Board of Directors in writing that
Indemnitee has requested indemnification. Notwithstanding the foregoing, any failure of Indemnitee
to provide such a request to the Company, or to provide such a request in a timely fashion, shall
not relieve the Company of any liability that it may have to Indemnitee unless, and to the extent
that, such failure actually and materially prejudices the interests of the Company.
(b) Upon written request by Indemnitee for indemnification pursuant to the first sentence of
Section 6(a) hereof, a determination with respect to Indemnitees entitlement thereto shall
be made in the specific case by one of the following four methods, which shall be at the election
of
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 3 |
the board: (1) by a majority vote of the disinterested directors, even though less than a
quorum, (2) by a committee of disinterested directors designated by a majority vote of the
disinterested directors, even though less than a quorum, (3) if there are no disinterested
directors or if the disinterested directors so direct, by independent legal counsel in a written
opinion to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (4) if
so directed by the Board of Directors, by the stockholders of the Company. For purposes hereof,
disinterested directors are those members of the board of directors of the Company who are not
parties to the action, suit or proceeding in respect of which indemnification is sought by
Indemnitee.
(c) If the determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof, the Independent Counsel shall be selected as
provided in this Section 6(c). The Independent Counsel shall be selected by the Board of
Directors and Indemnitee shall be promptly notified of such selection. Indemnitee may, within ten
(10) days after such written notice of selection shall have been given, deliver to the Company a
written objection to such selection; provided, however, that such objection may be asserted only on
the ground that the Independent Counsel so selected does not meet the requirements of Independent
Counsel as defined in Section 14 of this Agreement, and the objection shall set forth with
particularity the factual basis of such assertion. Absent a proper and timely objection, the
person so selected shall act as Independent Counsel. If a written objection is made and
substantiated, the Independent Counsel selected may not serve as Independent Counsel unless and
until such objection is withdrawn or a court has determined that such objection is without merit.
If, within 20 days after submission by Indemnitee of a written request for indemnification pursuant
to Section 6(a) hereof, no Independent Counsel shall have been selected and not objected
to, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware or
other court of competent jurisdiction for resolution of any objection which shall have been made by
the Indemnitee to the Companys selection of Independent Counsel and/or for the appointment as
Independent Counsel of a person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or the person so
appointed shall act as Independent Counsel under Section 6(b) hereof. The Company shall
pay any and all reasonable fees and expenses of Independent Counsel incurred by such Independent
Counsel in connection with acting pursuant to Section 6(b) hereof, and the Company shall
pay all reasonable fees and expenses incident to the procedures of this Section 6(c),
regardless of the manner in which such Independent Counsel was selected or appointed.
(d) In making a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume that Indemnitee is entitled to
indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence. Neither the failure
of the Company (including by its directors or independent legal counsel) to have made a
determination prior to the commencement of any action pursuant to this Agreement that
indemnification is proper in the circumstances because Indemnitee has met the applicable standard
of conduct, nor an actual determination by the Company (including by its directors or independent
legal counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that Indemnitee has not met the applicable standard of
conduct.
(e) Indemnitee shall be deemed to have acted in good faith if Indemnitees action is based on
the advice of legal counsel for the Company or on information or records given or reports made to
the Company by an independent certified public accountant or by an appraiser or other expert
selected with reasonable care by the Company. Whether or not the foregoing provisions of this
Section 6(e) are satisfied, it shall in any event be presumed that Indemnitee has at all
times acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to
the best interests of the Company. Anyone seeking to overcome this presumption shall have the
burden of proof and the burden of persuasion by clear and convincing evidence.
(f) If the person, persons or entity empowered or selected under Section 6 to
determine whether Indemnitee is entitled to indemnification shall not have made a determination
within
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 4 |
sixty (60) days after receipt by the Company of the request therefor, the requisite
determination of entitlement to indemnification shall be deemed to have been made and Indemnitee
shall be entitled to such indemnification absent (i) a misstatement by Indemnitee of a material
fact, or an omission of a material fact necessary to make Indemnitees statement not materially
misleading, in connection with the request for indemnification, or (ii) a prohibition of such
indemnification under applicable law; provided, however, that such 60-day period may be extended
for a reasonable time, not to exceed an additional thirty (30) days, if the person, persons or
entity making such determination with respect to entitlement to indemnification in good faith
requires such additional time to obtain or evaluate documentation and/or information relating
thereto; and provided, further, that the foregoing provisions of this Section 6(f) shall
not apply if the determination of entitlement to indemnification is to be made by the stockholders
pursuant to Section 6(b) of this Agreement and if (A) within fifteen (15) days after
receipt by the Company of the request for such determination, the Board of Directors or the
Disinterested Directors, if appropriate, resolve to submit such determination to the stockholders
for their consideration at an annual meeting thereof to be held within seventy-five (75) days after
such receipt and such determination is made thereat, or (B) a special meeting of stockholders is
called within fifteen (15) days after such receipt for the purpose of making such determination,
such meeting is held for such purpose within sixty (60) days after having been so called and such
determination is made thereat.
(g) Indemnitee shall cooperate with the person, persons or entity making such determination
with respect to Indemnitees entitlement to indemnification, including providing to such person,
persons or entity upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee
and reasonably necessary to such determination. Any Independent Counsel, member of the Board of
Directors or stockholder of the Company shall act reasonably and in good faith in making a
determination regarding the Indemnitees entitlement to indemnification under this Agreement. Any
costs or expenses (including attorneys fees and disbursements) incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall be borne by the
Company (irrespective of the determination as to Indemnitees entitlement to indemnification) and
the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom.
(h) The Company acknowledges that a settlement or other disposition short of final judgment
may be successful if it permits a party to avoid expense, delay, distraction, disruption and
uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is
resolved in any manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without payment of money or
other consideration) it shall be presumed that Indemnitee has been successful on the merits or
otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall
have the burden of proof and the burden of persuasion by clear and convincing evidence.
(i) The termination of any Proceeding or of any claim, issue or matter therein, by judgment,
order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not
(except as otherwise expressly provided in this Agreement) of itself adversely affect the right of
Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of
the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to
believe that his or her conduct was unlawful.
7. Remedies of Indemnitee.
(a) In the event that (i) a determination is made pursuant to Section 6 of this
Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement
of Expenses is not timely made pursuant to Section 5 of this Agreement, (iii) no
determination of entitlement to indemnification is made pursuant to Section 6(b) of this
Agreement within 90 days after receipt by the Company of the request for indemnification, (iv)
payment of indemnification is not made pursuant to this Agreement within ten (10) days after
receipt by the Company of a written request therefor or (v) payment
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 5 |
of indemnification is not made within ten (10) days after a determination has been made that
Indemnitee is entitled to indemnification or such determination is deemed to have been made
pursuant to Section 6 of this Agreement, Indemnitee shall be entitled to an adjudication in
an appropriate court of the State of Delaware, or in any other court of competent jurisdiction, of
Indemnitees entitlement to such indemnification. Indemnitee shall commence such proceeding
seeking an adjudication within 180 days following the date on which Indemnitee first has the right
to commence such proceeding pursuant to this Section 7(a). The Company shall not oppose
Indemnitees right to seek any such adjudication.
(b) In the event that a determination shall have been made pursuant to Section 6(b) of
this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding
commenced pursuant to this Section 7 shall be conducted in all respects as a de novo trial
on the merits, and Indemnitee shall not be prejudiced by reason of the adverse determination under
Section 6(b).
(c) If a determination shall have been made pursuant to Section 6(b) of this Agreement
that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in
any judicial proceeding commenced pursuant to this Section 7, absent (i) a misstatement by
Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitees
misstatement not materially misleading in connection with the application for indemnification, or
(ii) a prohibition of such indemnification under applicable law.
(d) In the event that Indemnitee, pursuant to this Section 7, seeks a judicial
adjudication of Indemnitees rights under, or to recover damages for breach of, this Agreement, or
to recover under any directors and officers liability insurance policies maintained by the
Company, the Company shall pay on Indemnitees behalf, in advance, any and all expenses (of the
types described in the definition of Expenses in Section 14 of this Agreement) actually and
reasonably incurred by Indemnitee in such judicial adjudication, regardless of whether Indemnitee
ultimately is determined to be entitled to such indemnification, advancement of expenses or
insurance recovery.
(e) The Company shall be precluded from asserting in any judicial proceeding commenced
pursuant to this Section 7 that the procedures and presumptions of this Agreement are not
valid, binding and enforceable and shall stipulate in any such court that the Company is bound by
all the provisions of this Agreement. The Company shall indemnify Indemnitee against any and all
Expenses and, if requested by Indemnitee, shall (within ten (10) days after receipt by the Company
of a written request therefore) advance, to the extent not prohibited by law, such expenses to
Indemnitee, which are incurred by Indemnitee in connection with any action brought by Indemnitee
for indemnification or advance of Expenses from the Company under this Agreement or under any
directors and officers liability insurance policies maintained by the Company, regardless of
whether Indemnitee ultimately is determined to be entitled to such indemnification, advancement of
Expenses or insurance recovery, as the case may be.
(f) Notwithstanding anything in this Agreement to the contrary, no determination as to
entitlement to indemnification under this Agreement shall be required to be made prior to the final
disposition of the Proceeding.
8. Non-Exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The rights of indemnification as provided by this Agreement shall not be deemed exclusive
of any other rights to which Indemnitee may at any time be entitled under applicable law, the
Charter Documents, any agreement, a vote of stockholders, a resolution of directors or otherwise,
of the Company. No amendment, alteration or repeal of this Agreement or of any provision hereof
shall limit or restrict any right of Indemnitee under this Agreement in respect of any action taken
or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or
repeal. To the extent that a change in the DGCL, whether by statute or judicial decision, permits
greater indemnification than would be afforded currently under the Certificate of Incorporation,
By-laws and this Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change. No right or remedy herein
conferred is intended to be exclusive of any other
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 6 |
right or remedy, and every other right and remedy shall be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other right or remedy.
(b) To the extent that the Company maintains an insurance policy or policies providing
liability insurance for directors, officers, employees, or agents or fiduciaries of the Company,
Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the
maximum extent of the coverage available for any director, officer, employee, agent or fiduciary
under such policy or policies. If, at the time of the receipt of a notice of a claim pursuant to
the terms hereof, the Company has director and officer liability insurance in effect, the Company
shall give prompt notice of the commencement of such proceeding to the insurers in accordance with
the procedures set forth in the respective policies. The Company shall thereafter take all
necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all
amounts payable as a result of such proceeding in accordance with the terms of such policies.
(c) In the event of any payment under this Agreement, the Company shall be subrogated to the
extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers
required and take all action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.
(d) The Company shall not be liable under this Agreement to make any payment of amounts
otherwise indemnifiable hereunder if and to the extent that Indemnitee has otherwise actually
received such payment under any insurance policy, contract, agreement or otherwise.
9. Exception to Right of Indemnification. Notwithstanding any provision in this
Agreement, the Company shall not be obligated under this Agreement to make any indemnity in
connection with any claim made against Indemnitee:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance
policy or other indemnity provision, except with respect to any excess beyond the amount paid under
any insurance policy or other indemnity provision, provided; or
(b) for an accounting of profits made from the purchase and sale (or sale and purchase) by
Indemnitee of securities of the Company within the meaning of Section 16(b) of the
Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common
law; or
(c) except with respect to a Proceeding relating to enforcement of, or to indemnity under this
Agreement, or under the Charter Documents, the DGCL, or any insurance policy relating to
Indemnitees Corporate Status, in connection with any Proceeding (or any part of any Proceeding)
initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by
Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless
(i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding)
prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion,
pursuant to the powers vested in the Company under applicable law.
10. Duration of Agreement. All agreements and obligations of the Company contained
herein shall commence upon the execution of this Agreement, and shall continue thereafter so long
as Indemnitee could be subject to any Proceeding (or any proceeding commenced under Section
7 hereof) by reason of Indemnitees Corporate Status, whether or not Indemnitee is acting or
serving in any such capacity at the time any liability or expense is incurred for which
indemnification can be provided under this Agreement and regardless of any subsequent amendment to
the Charter Documents, the DGCL or any other agreement relating to indemnification of Indemnitee.
This Agreement shall be binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors (including any direct or indirect successor by purchase,
merger, consolidation or otherwise to all or
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 7 |
substantially all of the business or assets of the Company), assigns, spouses, heirs,
executors and personal and legal representatives.
11. Security. To the extent requested by Indemnitee and approved by the Board of
Directors of the Company, the Company may at any time and from time to time provide security to
Indemnitee for the Companys obligations hereunder through an irrevocable bank line of credit,
funded trust or other collateral. Any such security, once provided to Indemnitee, may not be
revoked or released without the prior written consent of the Indemnitee.
12. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and
assumes the obligations imposed on it hereby in order to induce Indemnitee to serve as a director
of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in
serving as a director of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to
the subject matter hereof and supersedes all prior agreements and understandings, oral, written and
implied, between the parties hereto with respect to the subject matter hereof.
13. Limitation on Indemnity. Notwithstanding any provision to the contrary in this
Agreement, this Agreement applies only to indemnification of Indemnitee in his capacity as a
director of the Company and does not, and shall not be deemed to, apply in any way with respect to
Indemnitees status as an officer or employee of the Company or otherwise expand or affect the
indemnification provisions of the Companys Charter Documents as they relate to indemnification of
officers. For avoidance of doubt, the Companys sole obligation to Indemnitee with respect to
indemnification (and related contribution and advancement of expenses) with respect to Indemnitees
status as an officer of the Company are as set forth in the Companys Charter Documents.
14. Definitions. For purposes of this Agreement:
(a) Corporate Status describes the status of a person who is or was a director of the
Company in his or her official capacity as such or as agent or fiduciary of the Company related to
such status as a director (but not as an officer or employee).
(b) Disinterested Director means a director of the Company who is not and was not a party to
the Proceeding in respect of which indemnification is sought by Indemnitee.
(c) Expenses shall include all reasonable attorneys fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating costs, printing and
binding costs, telephone charges, postage, delivery service fees and all other disbursements or
expenses of the types customarily incurred in connection with prosecuting, defending, preparing to
prosecute or defend, investigating, participating, or being or preparing to be a witness in a
Proceeding, or responding to, or objecting to, a request to provide discovery in any Proceeding.
Expenses also shall include Expenses incurred in connection with any appeal resulting from any
Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of
the actual or deemed receipt of any payments under this Agreement, including without limitation the
premium, security for, and other costs relating to any cost bond, supersede as bond, or other
appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by
Indemnitee or the amount of judgments or fines against Indemnitee.
(d) Independent Counsel means a law firm, or a member of a law firm, that is experienced in
matters of corporation law and neither presently is, nor in the past five (5) years has been,
retained to represent: (i) the Company or Indemnitee in any matter material to either such party
(other than with respect to matters concerning Indemnitee under this Agreement, or of other
indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding
giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term
Independent Counsel shall not include any person who, under the applicable standards of
professional conduct then prevailing, would
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 8 |
have a conflict of interest in representing either the Company or Indemnitee in an action to
determine Indemnitees rights under this Agreement. The Company agrees to pay the reasonable fees
of the Independent Counsel referred to above and to fully indemnify such counsel against any and
all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its
engagement pursuant hereto.
(e) Proceeding includes any threatened, pending or completed action, suit, arbitration,
alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other
actual, threatened or completed proceeding, whether brought by or in the right of the Company or
otherwise and whether civil, criminal, administrative or investigative, in which Indemnitee was, is
or will be involved as a party or otherwise, by reason of the fact that Indemnitee is or was a
director of the Company, by reason of any action taken by Indemnitee or of any inaction on
Indemnitees part while acting as a director of the Company; in each case whether or not Indemnitee
is acting or serving in any such capacity at the time any liability or expense is incurred for
which indemnification can be provided under this Agreement; including one pending on or before the
date of this Agreement, but excluding one initiated by an Indemnitee pursuant to Section 7
of this Agreement to enforce Indemnitees rights under this Agreement.
15. Severability. The invalidity or unenforceability of any provision hereof shall in
no way affect the validity or enforceability of any other provision. Without limiting the
generality of the foregoing, this Agreement is intended to confer upon Indemnitee indemnification
rights to the fullest extent permitted by applicable laws. In the event any provision hereof
conflicts with any applicable law, such provision shall be deemed modified, consistent with the
aforementioned intent, to the extent necessary to resolve such conflict.
16. Modification and Waiver. No supplement, modification, termination or amendment of
this Agreement shall be binding unless executed in writing by both of the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of
any other provisions hereof (whether or not similar) nor shall such waiver constitute a continuing
waiver.
17. Notice By Indemnitee. Indemnitee agrees promptly to notify the Company in writing
upon being served with or otherwise receiving any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter which may be subject
to indemnification covered hereunder. The failure to so notify the Company shall not relieve the
Company of any obligation which it may have to Indemnitee under this Agreement or otherwise unless
and only to the extent that such failure or delay materially prejudices the Company.
18. Notices. All notices and other communications given or made pursuant to this
Agreement shall be in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified, (b) when sent by confirmed electronic mail or facsimile if sent during
normal business hours of the recipient, and if not so confirmed, then on the next business day, (c)
five (5) days after having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (d) one (1) day after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of receipt. All communications shall be
sent:
(a) To Indemnitee at the address set forth below Indemnitee signature hereto.
(b) To the Company at:
SPS Commerce, Inc.
Attention: Chief Executive Officer
Accenture Tower
333 South Seventh Street, Suite 1000
Minneapolis, MN 55402
Fax: 612-435-9402
Attention: Chief Executive Officer
Accenture Tower
333 South Seventh Street, Suite 1000
Minneapolis, MN 55402
Fax: 612-435-9402
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 9 |
or to such other address as may have been furnished to Indemnitee by the Company or to the Company
by Indemnitee, as the case may be.
19. Counterparts. This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same Agreement. This Agreement may also be executed and delivered by facsimile signature and in
two or more counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
20. Headings. The headings of the paragraphs of this Agreement are inserted for
convenience only and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
21. Governing Law and Consent to Jurisdiction. This Agreement and the legal relations
among the parties shall be governed by, and construed and enforced in accordance with, the laws of
the State of Delaware, without regard to its conflict of laws rules. The Company and Indemnitee
hereby irrevocably and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the Chancery Court of the State of Delaware
(the Delaware Court), and not in any other state or federal court in the United States of America
or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the
Delaware Court for purposes of any action or proceeding arising out of or in connection with this
Agreement, (iii) waive any objection to the laying of venue of any such action or proceeding in the
Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action
or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
22. Amendment and Restatement of Prior Agreements. The parties hereby agree that this
Agreement supersedes any prior indemnification agreement between the parties in its entirety and
this Agreement is hereby determined to amend and restate such prior agreements, if any.
SIGNATURE PAGE TO FOLLOW
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Page 10 |
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on and as of the day and
year first above written.
COMPANY | ||||||
By: | ||||||
Name: | ||||||
Its: | ||||||
INDEMNITEE | ||||||
Name: Archie C. Black | ||||||
Address: | ||||||
c/o SPS Commerce, Inc. | ||||||
Accenture Tower | ||||||
333 South Seventh Street, Suite 1000 | ||||||
Minneapolis, MN 55402 |
SPS Commerce, Inc. Director Indemnification Agreement [Black] | Signature Page |