sv8
As filed with the Securities and Exchange Commission on February 4, 2011
Registration Number 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
SPS COMMERCE, INC.
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
|
|
41-2015127 |
(State of incorporation)
|
|
(IRS Employer Identification No.) |
333 South Seventh Street, Suite 1000
Minneapolis, MN 55402
(Address of Principal Executive Offices) (Zip Code)
SPS COMMERCE, INC. 2010 EQUITY INCENTIVE PLAN
(Full title of the plan)
|
|
|
|
|
Copy to: |
|
|
|
Archie C. Black
|
|
Jonathan R. Zimmerman |
President and Chief Executive Officer
|
|
Faegre & Benson LLP |
SPS Commerce, Inc.
|
|
2200 Wells Fargo Center |
333 South Seventh Street, Suite 1000
|
|
90 South Seventh Street |
Minneapolis, MN 55402
|
|
Minneapolis, MN 55402-3901 |
(612) 435-9400
|
|
(612) 766-7000 |
(Name, address and telephone number, including area code, of agent for service)
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check one):
Large accelerated filer o |
Accelerated filer o |
Non-accelerated filer o (Do not check if a smaller reporting company) |
Smaller reporting company þ |
Calculation of Registration Fee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed |
|
|
|
|
|
|
|
|
|
|
|
|
|
Proposed |
|
|
maximum |
|
|
|
|
|
Title of |
|
|
Amount |
|
|
maximum |
|
|
aggregate |
|
|
Amount of |
|
|
securities to |
|
|
to be |
|
|
offering price |
|
|
offering |
|
|
registration |
|
|
be registered |
|
|
registered(1) |
|
|
per share(3) |
|
|
price |
|
|
fee |
|
|
Common Stock, par value $0.001 per share |
|
|
710,974 shares(2) |
|
|
$ |
15.67 |
|
|
|
$ |
11,140,962.58 |
|
|
|
$ |
1,293.47 |
|
|
|
|
|
|
(1) |
|
Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act),
this Registration Statement includes an indeterminate number of additional shares as may be
issuable as a result of a stock split, stock dividend or similar adjustment of the outstanding
shares of common stock, par value $0.001 per share (the Common Stock) of the Registrant. |
|
(2) |
|
Represents 710,974 additional shares of common stock reserved for future issuance under the
2010 Plan. |
|
(3) |
|
Computed in accordance with Rule 457(h) and 457(c) of the Securities Act of 1933. Such
computation is based on the average of the high and low prices as reported on the Nasdaq
Global Market on January 28, 2011. |
TABLE OF CONTENTS
EXPLANATORY NOTE
This Registration Statement on Form S-8 is being filed for the purpose of registering 710,974
shares of the Companys Common Stock to be issued pursuant to the SPS Commerce, Inc. 2010 Equity
Incentive Plan (the Plan). In accordance with Section E of the General Instructions to Form S-8,
the Registration Statement previously filed with the Securities and Exchange Commission (the
Commission) relating to the Plan (File No. 333-167315) is incorporated by reference herein.
Part IIInformation Required in the Registration Statement
Item 3. Incorporation of Documents by Reference
The following documents of SPS Commerce, Inc. (the Company) filed with the Securities and
Exchange Commission (the SEC) are incorporated in this Registration Statement by reference:
(1) |
|
The prospectus filed by the Company with the SEC pursuant to Rule 424(b) under the Securities
Act, on December 3, 2010, relating to the registration statement on Form S-1, as amended
(Registration No.333-170544), which contains the Companys audited financial statements for
the latest fiscal year for which such statements have been filed; |
(2) |
|
The Companys Quarterly Reports on Form 10-Q for the quarters ended March 31, 2010, June 30,
2010 and September 30, 2010, filed with the SEC on May 17, 2010, August 4, 2010 and November
4, 2010, respectively, including all material incorporated by reference therein; |
(3) |
|
The description of the Companys Common Stock contained in its registration statement on Form
8-A, including any amendments or supplements thereto. |
All reports and other documents filed by the Company with the SEC pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (except for information furnished and not filed with the
Commission in a Current Report on Form 8-K) after the date of this Registration Statement and prior
to the filing of a post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold shall be deemed to be incorporated
by reference in and to be a part of this Registration Statement from the date of filing of such
documents.
Any statement contained in a document incorporated by reference herein shall be modified or
superseded for purposes of this Registration Statement to the extent that a statement contained
herein (or in any other subsequently filed document which also is incorporated by reference herein)
modifies or supersedes such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities
Not applicable.
Item 5. Interests of Named Experts and Counsel
Not applicable.
Item 6. Indemnification of Directors and Officers
The Company is a corporation organized under the laws of the State of Delaware. Section 145 of
the Delaware General Corporation Law provides that a corporation may indemnify any person who was
or is a party or is threatened to be made a party to an action by reason of the fact that he or she
was a director, officer, employee or agent of the corporation or is or was serving at the request
of the corporation against expenses (including attorneys fees), judgments, fines and amounts paid
in settlement actually and reasonably incurred by him or her in connection with such action if he
or she acted in good faith and in a manner he or she reasonably believed to be in, or not opposed
to, the best interests of the corporation and, with respect to any criminal action or proceeding,
had no reasonable cause to believe his or her conduct was unlawful, except that, in the case of an
action by or in right of the corporation, no indemnification may generally be made in respect of
any claim as to which such person is adjudged to be liable to the corporation. The Companys
bylaws provide that it will indemnify and advance expenses to its directors and officers (and may
choose to indemnify and advance expenses to other employees and other agents) to the fullest extent
permitted by law; provided, however, that if the Company enters into an indemnification agreement
with such directors or officers, such agreement controls.
Section 102(b)(7) of the Delaware General Corporation Law permits a corporation to provide in
its certificate of incorporation that a director of the corporation shall not be personally liable
to the corporation or its stockholders for monetary damages for breach of fiduciary duties as a
director, except for liability for any:
|
|
|
breach of a directors duty of loyalty to the corporation or its stockholders; |
|
|
|
|
act or omission not in good faith or that involves intentional misconduct or a
knowing violation of law; |
|
|
|
|
unlawful payment of dividends or redemption of shares; or |
|
|
|
|
transaction from which the director derives an improper personal benefit. |
The Companys certificate of incorporation provides that its directors are not personally
liable for breaches of fiduciary duties to the fullest extent permitted by the Delaware General
Corporation Law. These limitations of liability do not apply to liabilities arising under federal
securities laws and do not affect the availability of equitable remedies such as injunctive relief
or rescission.
Section 145(g) of the Delaware General Corporation Law permits a corporation to purchase and
maintain insurance on behalf of any person who is or was a director, officer, employee or agent of
the corporation. The Companys bylaws permit it to secure insurance on behalf of any officer,
director, employee or other agent for any liability arising out of his or her actions in connection
with their services to the Company, regardless of whether the Companys bylaws permit
indemnification. The Company obtained a directors and officers liability insurance policy.
As permitted by the Delaware General Corporation Law, the Company entered into indemnity
agreements with each of its directors that require it to indemnify such persons against various
actions including, but not limited to, third-party actions where such director, by reason of his or
her corporate status, is a party or is threatened to be made a party to an action, or by reason of
anything done or not done by such director in any such capacity. The Company indemnifies directors
against all costs, judgments, penalties, fines, liabilities, amounts paid in settlement by or on
behalf such directors, and for any expenses actually and reasonably incurred by such directors in
connection with such action, if such directors acted in good faith and in a manner they reasonably
believed to be in or not opposed to the best interests of the corporation, and with respect to any
criminal proceeding, had no reasonable cause to believe their conduct was unlawful. The Company
also advances to its directors expenses (including attorneys fees) incurred by such directors in
advance of the final disposition of any action after the receipt by the corporation of a statement
or statements from directors requesting such payment or payments from time to time, provided that
such statement or statements are accompanied by an undertaking, by or on behalf of such directors,
to repay such amount if it shall ultimately be determined that they are not entitled to be
indemnified against such expenses by the corporation.
The indemnification agreements set forth certain procedures that will apply in the event of a
claim for indemnification or advancement of expenses, including, among others, provisions about
providing notice to the corporation of any action in connection with which a director seeks
indemnification or advancement of expenses from the corporation, and provisions concerning the
determination of entitlement to indemnification or advancement of expenses.
Item 7. Exemption From Registration Claimed
Not applicable.
Item 8. Exhibits
See the Exhibit Index following the signature page.
Item 9. Undertakings
(a) The Company hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration Statement. Notwithstanding
the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Securities and Exchange
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in the effective
Registration Statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the Registration
Statement is on Form S-8 and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the
Securities and Exchange Commission by the Company pursuant to Section 13 or Section 15(d) of
the Securities Exchange Act of 1934 that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under the Securities Act of
1933, each such post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the offering.
(b) The Company hereby undertakes that, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Companys annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the securities being
registered, the Company will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements for filing on Form
S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of Minneapolis, State of Minnesota, on February 4, 2011.
|
|
|
|
|
|
|
|
|
SPS COMMERCE, INC. |
|
|
|
|
|
|
|
|
|
|
|
By:
Name:
|
|
/s/ Kimberly K. Nelson
Kimberly K. Nelson
|
|
|
|
|
Title:
|
|
Executive Vice President and Chief Financial Officer |
|
|
We, the undersigned officers and directors of SPS Commerce, Inc., hereby severally constitute
Archie C. Black and Kimberly K. Nelson, and each of them singly, as true and lawful attorneys with
full power to them, and each of them singly, to sign for us and in our names, in the capacities
indicated below the Registration Statement filed herewith and any amendments to said Registration
Statement, and generally to do all such things in our name and behalf in our capacities as officers
and directors to enable SPS Commerce, Inc. to comply with the provisions of the Securities Act of
1933 and all requirements of the Securities and Exchange Commission, hereby ratifying and
confirming our signatures as they may be signed by our said attorneys, or any of them, to said
Registration Statement and any and all amendments thereto. Pursuant to the requirements of the
Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
|
|
|
|
|
Signature |
|
Title |
|
Date |
|
/s/ Archie C. Black
Archie C. Black
|
|
President, Chief Executive Officer and Director
(principal executive officer)
|
|
February 4, 2011 |
|
|
|
|
|
/s/ Kimberly K. Nelson
Kimberly K. Nelson
|
|
Executive Vice President and Chief Financial Officer
(principal financial and accounting officer)
|
|
February 4, 2011 |
|
|
|
|
|
|
|
Director
|
|
|
|
|
|
|
|
/s/ Michael B. Gorman
Michael B. Gorman
|
|
Director
|
|
February 4, 2011 |
|
|
|
|
|
/s/ Martin J. Leestma
Martin J. Leestma
|
|
Director
|
|
February 4, 2011 |
|
|
|
|
|
/s/ Philip E. Soran
Philip E. Soran
|
|
Director
|
|
February 4, 2011 |
|
|
|
|
|
/s/ George H. Spencer, III
George H. Spencer, III
|
|
Director
|
|
February 4, 2011 |
|
|
|
|
|
|
|
Director
|
|
|
EXHIBIT INDEX
|
|
|
|
|
Exhibit |
|
Description |
|
Manner of Filing |
4
|
|
Specimen Certificate representing shares of
common stock of the Registrant
|
|
Incorporated by
reference to Exhibit
4.1 to Amendment No. 3
to the Registrants
Registration Statement
on Form S-1
(Registration No.
333-163476), filed with
the SEC on March 5,
2010) |
|
|
|
|
|
5
|
|
Opinion of Faegre & Benson LLP
|
|
Filed Electronically |
|
|
|
|
|
23.1
|
|
Consent of Faegre & Benson LLP
|
|
Included in Exhibit 5 |
|
|
|
|
|
23.2
|
|
Consent of Grant Thornton LLP
|
|
Filed Electronically |
|
|
|
|
|
24
|
|
Powers of Attorney
|
|
Included with Signatures |
|
|
|
|
|
99.1
|
|
SPS Commerce, Inc. 2010 Equity Incentive Plan
|
|
Incorporated by
reference to Exhibit
10.6 to Amendment No. 3
to the Registrants
Registration Statement
on Form S-1
(Registration No.
333-163476), filed with
the SEC on March 5,
2010 |
|
|
|
|
|
99.2
|
|
Form of Incentive Stock Option Agreement
under SPS Commerce, Inc. 2010 Equity
Incentive Plan
|
|
Incorporated by
reference to Exhibit
10.7 to Amendment No. 3
to the Registrants
Registration Statement
on Form S-1
(Registration No.
333-163476), filed with
the SEC on March 5,
2010 |
|
|
|
|
|
99.3
|
|
Form of Non-Statutory Stock Option Agreement
under SPS Commerce, Inc. 2010 Equity
Incentive Plan
|
|
Incorporated by
reference to Exhibit
10.8 to Amendment No. 3
to the Registrants
Registration Statement
on Form S-1
(Registration No.
333-163476), filed with
the SEC on March 5,
2010 |
exv5
EXHIBIT 5
FAEGRE & BENSON LLP
90 South Seventh Street
Minneapolis, Minnesota 55402
Telephone (612) 766-7000
Facsimile (612) 766-1600
February 4, 2011
Board of Directors
SPS Commerce, Inc.
333 South Seventh Street, Suite 1000
Minneapolis, MN 55402
|
Re: |
|
SPS Commerce, Inc. Registration Statement on Form S-8 |
Ladies and Gentlemen:
In connection with the Registration Statement on Form S-8 under the Securities Act of 1933, as
amended (the Registration Statement), relating to the registration of an additional 710,974
Shares under the SPS Commerce, Inc. 2010 Equity Incentive Plan (the 2010 Plan), we have examined
such corporate records and other documents, including the Registration Statement, and have reviewed
such matters of law as we have deemed relevant hereto, and, based upon such examination and review,
it is our opinion that all necessary corporate action on the part of the Company has been taken to
authorize the issuance and sale of the additional Shares to be issued in accordance with the 2010
Plan and that, when issued and sold as contemplated in the Registration Statement and in accordance
with the 2010 Plan, the additional Shares will be legally issued, fully paid and nonassessable.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness
of all signatures, the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. We have also assumed that the Companys
Board of Directors, or a duly authorized committee thereof, will have approved the issuance of each
award under the 2010 Plan prior to the issuance thereof. As to any facts material this opinion
which we did not independently establish or verify, we have relied upon oral or written statements
and representations of officers and other representatives of the Company and others.
The foregoing opinions are limited to the General Corporation Law of the State of Delaware and
the federal laws of the United States of America. While we are not licensed to practice law in the
State of Delaware, we have reviewed applicable provisions of the Delaware General Corporation Law
as we have deemed appropriate in connection with the opinion.
We consent to the filing of this opinion as an exhibit to the Registration Statement.
|
|
|
|
|
|
Very truly yours,
FAEGRE & BENSON LLP
|
|
|
By: |
/s/ Jonathan R. Zimmerman
|
|
|
|
Jonathan R. Zimmerman |
|
|
|
|
|
exv23w2
EXHIBIT 23.2
Consent of Independent Registered Public Accounting Firm
Board of Directors
SPS Commerce, Inc.:
We consent to the use of our report dated February 12, 2010, except for Note J, as to which the
date is April 13, 2010, accompanying the financial statements and schedule of SPS Commerce, Inc.
contained in Amendment No. 7 to the Registration Statement (Form S-1 No. 333-163476) and
Prospectus. We consent to the incorporation by reference in this Registration Statement on Form
S-8 of the aforementioned report in Amendment No. 7 to the Registration Statement and Prospectus.
/s/ Grant Thornton LLP
Minneapolis, Minnesota
February 4, 2011