KLDiscovery 2020 Americas Legal Technology Sales Commission Plan, by and between the Company and Krystina Jones
Exhibit 10.8
| Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. |
KLDiscovery
2020 Americas Legal Technology Sales Commission Plan
| 1. | Plan Purpose |
| 1.1 | This document outlines the terms and conditions of the Sales Commission Plan commencing from January 1, 2020 through December 31, 2020 (the “2020 Commission Plan”) for KLDiscovery (the “Company”). The 2020 Commission Plan is designed to compensate, reward and provide incentive to each Legal Technology sales employee (“Employee”) to achieve superior sales performance, whilst at the same time encouraging the highest level of client satisfaction in an ethical and responsible manner. |
| 1.2 | The definitions that apply to certain terms of the 2020 Commission Plan are set out in Appendix 1. |
| 2. | Legacy Plans |
| 2.1 | The 2018 Commission Plan for Legacy LDiscovery (Virginia only) covering matters with a FID from April 1, 2017 and before April 1, 2018 that were subject to commission payments upon paid invoicing will continue in place through December 31, 2020. The related commission payments will only be made once the outstanding balance on the invoice is paid in full. |
| 3. | Summary of Employee Compensation |
| 3.1 | Each Employee will be remunerated through two types of compensation: (i) Monthly Draw; and (ii) Commission pursuant to the terms of the 2020 Commission Plan (as described in section 5 below) |
| 4. | Monthly Draw |
| 4.1 | An Employee’s monthly draw equals their base salary divided by twelve (12) months to establish a base monthly amount (“Monthly Draw”). Irrespective of any Commission payable pursuant to the 2020 Commission Plan, an Employee will always receive their Monthly Draw. The Monthly Draw amount is important as it regulates the Commission payments due to the Employee under the 2020 Commission Plan. Note that the Monthly Draw amount applies to the Calculation Period regardless of the Payment Period and regardless of the Employee’s employment status with the Company (such as termination). |
| 5. | Description of 2020 Commission Plan |
| 5.1 | Commission is based upon invoiced customer revenue multiplied by the appropriate commission rate % relating to the applicable service as set out in the commission table below (“Commission”). |
Standard Revenue
| 5.2 | An Employee will receive Commission based on the applicable Commission rate in the table below for all invoiced revenue other than Professional Services (products detailed in section 5.3 below). Commission rates are based on list price and vary depending on type of services and timing of the FID for a matter or subscription. Subscription renewals will be paid out using the initial subscriptions FID as the base for determining the Commission rate, unless otherwise approved in writing by the EVP, Global LT Sales. |
The following definitions apply:
[*] = Invoice [*]
[*] = Invoice [*]
[*] = Invoice [*]
| [*] | [*] | ||
| [*] | [*] | [*] | |
| [*](1) | [*]% | [*]% | [*]% |
| [*] | [*]% | [*]% | [*]% |
| [*] | [*]% | [*]% | [*]% |
| [*](2) | [*]% | [*]% | [*]% |
Notes:
|
| 1. | [*]% rate for [*] if pricing does not exceed minimum pricing thresholds for established services. In addition, projects where outside contractors are used to perform the services will be paid commission only on the gross margin dollars of the project for the Company versus the full revenue invoiced to the customer. |
|
| 2. | Including but not limited to [*], travel expenses, supplies, freight, delivery media, etc. These are all items where the Company makes zero to small profit margins |
Professional Services Revenue
| 5.3 | Professional Services includes all billed revenue relating to [*] services. |
General Principles relating to Commission
| 5.4 | It is at Company’s discretion to modify the commission rates on specified large client accounts and Employees may be compensated at different commission rates and thresholds for such matters. |
| 5.5 | All Commission is based on invoiced revenue only excluding any sales or value added taxes added to any invoices. Invoiced revenue is calculated after taking into consideration: (i) any sales credits issued against the invoice or estimated sales reserves; and (ii) any service credits issued against the invoice (e.g. for poor or defective work performance or other disputes with clients). Fully executed customer contracts are required for all commissionable revenue with the exception of transactional paper services. Commissions will not be earned or paid unless an executed customer contract is available by the end of the Calculation Period. |
| 5.6 | For the sake of clarity, unless specifically approved by the EVP, Global LT Sales, any and all customer credits, debits, voids, returns or other adjustments to a customer’s invoice will be deducted from the Employee’s revenue and individual Quota attainment used in determining Commissions. |
| 5.7 | Commissions will only be paid to an Employee in the applicable Payment Period to the extent that the total Commissions in the Calculation Period exceeds the Employee’s Monthly Draw. For example, in the event that the Employee’s Monthly Draw is $[*] a month and their monthly Commission total was |
| $[*], the Employee would only receive the Monthly Draw for that month. If the Commission total was $[*], the Employee would receive an additional $[*] in Commission, which is the amount by which the Commission exceeds the Monthly Draw. |
| 5.8 | A worked example of how Commission and Monthly Draw may operate is set out in Appendix 2. |
| 6. | Clawback Adjustments |
| 6.1 | If customer payment is not received within [*] days from the invoice date, any Commission previously paid to the Employee will be deducted from any Commission payment due to the Employee in the Calculation Period in which the [*] day limit is reached (“Claw Back”). Commissions subject to Claw Back adjustment will subsequently be re-evaluated during the regular Commission calculations to determine if customer payment has been received in full prior to the end of any subsequent Calculation Period for which Commission is being calculated. In such an event, the Commission will be paid to the Employee at the next possible payment date and will not be subject to the Monthly Draw. Should the Employee not exceed the Monthly Draw in the period when a Claw Back is due, the Claw Back will carry forward until such time that either the invoice is paid or an amount is earned above the Monthly Draw in subsequent months to cover the Claw Back amount Any commissions subject to Claw Back that remain without customer payment in excess of [*] months from the invoice date will be subject to permanent Claw Back unless specifically approved otherwise by the EVP, Global LT Sales. Partial payments will not qualify for return of a portion of the Claw Back adjustments. For the sake of clarity, any invoices or portion of invoices which are written off as bad debts are considered permanent Claw Backs. In the event of a negative balance to any Employee, the Claw Back amount will be rolled over into subsequent months until the Claw Back balance is cleared. |
| 7. | Data Recovery Commissions |
| 7.1 | Data Recovery will be compensated based on selling strategy: |
i) Signed Master Service Agreement for a legitimate opportunity within an [*] will be compensated with a $[*] bonus. This is not subject to the Monthly Draw; and
ii) Data recovery invoices greater than $[*] will be compensated at [*]% of the invoiced revenue. Data recovery Commissions in this 7.1(ii) are subject to the Monthly Draw.
| 8. | Additional Calendar Year 2020 Accelerators and Incentives |
| 8.1 | Accelerator for [*] Projects |
[*] matters with a FID from November 1, 2020 or after and invoiced at greater than $[*] per gigabyte will be paid an incremental [*]% on the invoiced amount for all commissionable revenue except Managed Review and Paper Services. [*] matters priced below $[*] per gigabyte may be subject to reduced commission rates at the discretion of the EVP, Global LT Sales. Subscription renewals do not qualify for this Accelerator. Final decisions of whether a [*] client qualifies for this incentive will be determined solely by the EVP, Global LT Sales. Any Accelerator earned for the Calculation Period will be combined with any other Commissions in the Calculation Period and shall be expressly subject to the Monthly Draw.
| 8.2 | Accelerator for Net [*]clients |
Net [*]clients will be paid an incremental [*]% on the invoiced amount for all commissionable revenue except Managed Review and Paper Services. This incentive applies to all [*] matters with a FID from November 1, 2020 or after for qualifying clients. Subscription renewals do not qualify as ‘net new’. New buyers or new offices for existing clients do not qualify as ‘net new’. Final decisions of whether an [*] client is considered ‘net new’ for this incentive will be determined solely by the EVP, Global LT Sales. Any Accelerator earned for the Calculation Period will be combined with any other Commissions in the Calculation Period and shall be expressly subject to the Monthly Draw.
| 8.3 | Bonus for selling Managed Review |
A one-time per annum bonus of $[*] will be paid to any sales employee who sells $[*] or more in managed review revenue. Revenue from projects that are outsourced or below floor pricing will be excluded from the cumulative revenue used for this calculation. Final decisions of whether a project is considered outsourced or below floor pricing for this incentive will be determined by the EVP, Global LT Sales.
| 9. | Employee Quota |
| 9.1 | Each Employee will be given a yearly quota which will be the yearly expected sales revenue expected by that individual Employee (“Quota”). Individual 2020 Quotas are determined based on growth factors applied to 2019 individual Employees sales results, business needs and potential for clients. The Quota is based off all revenue credited to the Employee regardless whether a particular subset of the revenue is non-commissionable (for example [*]). Likewise, achievement of Quota is based on the same. The final 2020 Quota for each Employee is included in the signature page of this document. The yearly Quota value may be adjusted during the year at the discretion of the EVP, Global LT Sales. These adjustments to Quota may be made for factors not present when the Quota was established and can include: a) customer accounts reassigned from a former Employee to the current Employee; b) windfall new accounts where the Employee did not participate in a significant way to acquire the business; and c) other unforeseen changes not considered when the Employee’s Quota was created. Any adjusted yearly Quota shall be communicated to Employee prior to implementation of the adjusted Quota. |
| 9.2 | Accelerator Upon Quota Achievement |
The 2020 Commission Plan will incentivize individual Employee’s with a [*]% accelerator (“Accelerator”). The Accelerator will be earned on every dollar over the Employee’s 2020 Quota [*]% year over year. In the event the mix shifts toward [*] by more than [*]%, any excess DR will not apply toward Quota attainment. The Accelerator will start to be paid in the next Commission payment cycle following the month the Employee exceeds their Quota. Once triggered, it will continue to be paid out on all subsequent 2020 invoiced revenue. Note that the Accelerator will only be paid on the commissionable revenue subset of any invoiced revenue in excess of the Employee’s Quota.
| 10. | At what point Commissions are deemed “Earned” |
| 10.1 | Commissions are considered fully earned for the Calculation Period only following payment by the customer and only to the extent they exceed the Employee’s Monthly Draw. Any payments made prior to customer payment are expressly subject to the terms of the 2020 Commission Plan, including all its conditions, including but not limited to any amounts subject to Clawback. |
| 11. | Other Conditions |
| 11.1 | Exception Approval Process |
Any exceptions to the 2020 Commission Plan must be documented and approved in Salesforce at the time of the sale by the EVP, Global LT Sales. Commission rates are subject to modification at any time in whole or for a specific project/subscription at the discretion of the Company. The Company may consider, without limitation, the following factors in determining commission rates: (i) changes in Company policy; (ii) pricing services at discounted rates; (iii) the size and scope of the client matter; (iv) deals deemed as “windfalls”; and (v) actual or anticipated profit margins for a specific client matter, customer, type of service or the Company generally.
| 11.2 | Commission Allocation |
The Company may allocate credit for revenue, and so divide Commissions, between more than one Employee as it deems appropriate and to the extent they are actively involved in the sales process and materially contributed to the sale. Employees can also agree to split Commission, but any proposed
split is subject to approval by the EVP, Global LT Sales prior to the Commission being allocated. Any allocation must be documented and approved in Salesforce at the time of the sale. Subsequent changes in splits must be approved and communicated prior to the end of the Calculation Period and updated in Salesforce as soon as possible.
| 11.3 | Employees will only receive Commissions on future projects or subscriptions from accounts which have been re-assigned from House Account status or a prior Employee. No Commissions will be earned or paid to a new Employee on existing projects, subscriptions, or new projects related to an existing client matter. These matters will be considered House Accounts unless otherwise approved by the EVP, Global LT Sales. |
| 11.4 | Continuation of 2020 Commission Plan beyond December 31, 2020 |
Notwithstanding that the 2020 Commission Plan is scheduled for the calendar year 2020, the terms of the 2020 Commission Plan shall apply into 2021 until such time as the 2021 commission plan (“2021 Commission Plan”) is finalised. However, only Standard Revenue (set out in section 5.2 above) for the purposes of Commission shall apply during the period from December 31, 2020 until the 2021 Commission Plan is finalised. Any accelerators set out in this 2020 Commission Plan (set out in sections 8 and 9 above) shall cease on December 31, 2020. For the avoidance of doubt, Commission will still be subject to the terms of this 2020 Commission Plan including but not limited to Claw Back adjustment, Monthly Draw and the Employee’s 2020 Quota. Once the 2021 Commission Plan is finalised, any adjustments to Commission already earned shall be made to each individual Employee overall compensation.
| 11.5 | Global Sales Commission Allocation |
Employees will have assigned regional territories for global crediting purposes. The current regions are the Americas, EMEA and APAC and will be deemed to be an Employee’s “home territory”. Any time an Employee pursues an opportunity outside their home territory, they must engage sales management and determine the sales approach and related crediting for Commissions. Global crediting guidelines to address the various sales crediting scenarios will be provided as a separate document. Management reserves the right to modify sales crediting based on influence and effort.
| 11.6 | Taxation |
Compensation in the form of both cash and non-cash incentives is included as income and FICA taxable wages. As a result, all incentives will be recorded and reported according to applicable state and federal tax regulations. All payments are subject to all applicable withholdings, including without limitations, 401(k) contributions, state, federal and FICA withholdings. Employees expressly authorize the Company to recover/Claw Back any outstanding overpayment from future Commission payments, unless prohibited by law.
| 11.6 | Termination |
The Employee must be actively employed by the Company through to the end of the month in order to qualify for the Calculation Period sales Commission for that month. In the event an Employee resigns, or their employment is terminated by the Company, prior to the end of any month, for Commission purposes, they shall not be eligible for any Commission in that partial month. In addition, if the Employee has ongoing substantial job duties to the customer after the sale closing, the Employee must be actively working and performing such additional duties in order to earn any Commission. Employee shall be paid any Monthly Draw for the pro rata period in the month of termination. For the avoidance of doubt, Commission payments in the months following termination are subject to the Monthly Draw.
| 11.8 | Problem Resolution |
The Employee must report any errors or discrepancies to their line manager in writing within 60 days from receipt of the applicable Commission statement. Any claim for additional Commissions, not
submitted in writing within this time period, will not be considered and will be treated as conclusively resolved, unless otherwise determined by the Company. Corrections to Commission will be paid in the payroll for the next pay period after the correction is approved. It is understood that there will be situations requiring the Company to exercise discretion and judgment to address conflicts. Where intervention is deemed necessary, the Company’s decision in resolving such conflicts shall be final, binding and conclusive on all concerned.
| 11.9 | 2020 Commission Plan Administration |
This 2020 Commission Plan constitutes highly confidential and proprietary information of the Company. Disclosure of the contents of this 2020 Commission Plan to any third party without the Company’s prior written consent is expressly prohibited.
| 11.10 | All Employees are expected to fully abide by the Company’s practices regarding proper conduct in business dealings. Such practices include, but are not limited to, not creating or participating in situations where the Employee has a conflict of interest, not engaging in antitrust activities or reciprocal business dealings, and not providing or accepting third party gratuities. Violation of these policies may be cause for disciplinary action which may lead to termination. |
| 11.11 | This 2020 Commission Plan is not intended and shall not be construed to create or imply a guarantee of employment for any specific period of time. Nothing in this 2020 Commission Plan shall modify, limit or restrict the standard terms and conditions governing the employment relationship between the Company and the Employee. Company continues to employ individuals “at will”, subject to applicable law. |
| 11.12 | Employees subject to the 2020 Commission Plan will be asked to sign an individual 2020 Commission Plan document acknowledging acceptance of the terms of the 2020 Commission Plan. It is a condition of eligibility to earn Commission under the 2020 Commission Plan that the Employee timely signs and returns the Employee’s 2020 Commission Plan document. For the avoidance of all doubt, unless and until the Employee has executed the 2020 Commission Plan containing the Quota, the Employee will not receive any Commission that may be due pursuant to the 2020 Commission Plan. |
| 11.13 | The Company will have the right to administer, interpret and construe the terms of this 2020 Commission Plan and resolve all issues and disputes all in its sole and absolute discretion. In the event of any inconsistency or conflict between the provisions of any separate communications (other than an amendment or revision of this 2020 Commission Plan) and the terms of the 2020 Commission Plan, the terms outlined in this 2020 Commission Plan shall prevail. Specifically, the 2020 Commission Plan and/or its application to a given Employee may be modified or terminated at any time in the Company’s discretion, with or without advance notice. Such modification may apply retrospectively. Employees shall not have the right to assign, pledge, or otherwise transfer any payments to which they may be eligible under the 2020 Commission Plan. |
| 11.14 | The Company reserves the right to deduct any monies owed to the Company by an Employee from any payment under this 2020 Commission Plan, unless otherwise required by federal, state, or local laws. If any term or condition of this 2020 Commission Plan is found not to conform with a given state or federal law, that term or condition will not be enforced in the jurisdiction in which it does not conform, but this will not negate other terms and conditions of the 2020 Commission Plan. |
| 11.15 | If any provision of this 2020 Commission Plan is held to be unenforceable for any reason, it shall be adjusted, if possible, rather than voided in order to preserve the original intent of this 2020 Commission Plan. In any event, all other provisions of this 2020 Commission Plan will be deemed valid and enforceable. Any such determination will be final, conclusive and binding, unless otherwise specifically determined in writing by the Company, in its discretion. |
| Employee Krystina Jones |
|
| 2020 Quota [*] |
|
| Signature: /s/ Krystina Jones | Date: March 25, 2020 |
| Company Authorised Representative |
|
| Name: Andrew Southam , GC |
|
| Signature: /s/ Andrew Southam | Date: March 25, 2020 |
Appendix 1 – Definitions
In this 2020 Commission Plan, when the following capitalized terms are used, they shall refer to the description below:
Accelerator: means an additional % Commission in addition to regular Commission determined according to this 2020 Commission Plan;
Calculation Period: means the calendar month for which the commission is being calculated;
Commission: means the % of commission that an Employee may earn based on the commission tables set out in section 5;
Claw Back: means the Company’s right to reclaim commission advances previously paid to the Employee as defined in Section 6.1;
Employee: as defined in section 1.1;
FID: means “first invoice date” and refers to the date a matter/SO number is first invoiced by the Company. The FID governs commission rates for the ongoing matter/SO number;
House Account: means customer sales brought in by a non-Sales representative and are not eligible for commission payment. When an Employee eligible for Commission payments contract of employment is terminated, their customer accounts and matters default to House Accounts for future Calculation Periods unless specifically approved otherwise by the EVP, Global LT Sales;
Monthly Draw: as defined in Section 4;
Payment Period: means the month in which the commission is paid to the Employee. Commissions are paid two months in arrears on the bi-weekly payroll scheduled during the second half of each month. By way of example, commissions for revenue invoiced in the month of May (i.e. the “Calculation Period”) would be paid during the second half of July (i.e. the “Payment Period”);
Quota: as defined in section 9.1;
Appendix 2 – Worked Example
Worked Examples of Commissions and Monthly Draw
Employee has an annual salary of $[*] (equally a Monthly Draw of $[*]) and for the month of April 2020, Employee has 6 customer invoices:
|
| 1. | An [*] Service matter invoiced for $[*] with a FID of April 2017 will earn Commission at the [*]% rate for Year 3 or $[*]. |
|
| 2. | A [*]matter invoiced for $[*] with a FID of May 2019 will earn commission at the [*]% rate for Year 1 or $[*] of gross Commission. |
|
| 3. | A matter with a [*] of January 2020 invoiced for $[*]consisting of: (a) $[*]of [*] will earn Commission at [*]% or $[*]; (b) $[*]of [*] will earn at [*]% or $[*]; and (c) $[*]of Managed Review will earn Commission at [*]% or $[*]. This matter is split 50%/50% with another sales employee, so Employee’s gross Commission share is $[*] (i.e. half of the total Commission of $[*]). |
|
| 4. | An [*] Service matter invoiced for $[*]with a FID of April 2018 will earn Commission at the [*]% rate for Year 2 or $[*]of gross Commission. |
|
| 5. | A [*] matter with a FID of December 2019 invoiced for $[*]consisting of: (a) $[*] of [*] will earn Commission at the [*]% rate for Year 1 or $[*]; and (b) $[*]of Managed Review will earn Commission at the [*]% rate for Year 1 or $[*]. As the [*] was priced at $[*] per [*], Joe will earn an additional [*]% or $[*] for this project as it is part of the Accelerator. The Managed Review portion is ineligible for the additional [*]%. |
|
| 6. | A Professional Services invoice for $[*]with a FID of March 2017 (Year 3) will earn Commission at [*]% or $[*]. |
|
| 7. | Employee’s gross Commission would be $[*] ($[*]+ $[*] + $[*] + $[*]+ $[*]+ $[*]). Employee’s draw of $[*] per month will be subtracted from the gross Commission to arrive at a net commission of $[*]. |
Next, for the purposes of this Worked Example, the review date is April 30, 2020. At this time, of Employee’s four customer invoices from November 2019: (a) three have been paid off in full by the customers; and (b) one is still outstanding or uncollected. The outstanding invoice is for $[*] of eDiscovery Service with a FID of December 2017 (calculated for Commission at [*]% or $[*]) on this invoice. The outstanding invoice has now exceeded [*] days from the invoice date and was previously paid out as Commission. Accordingly, it qualifies for Claw Back in April 2020. The $[*]Commission is deducted from Employee’s net Commission of $[*] to arrive at an adjusted Commission payment for April of $[*]. The $[*] in Commission would be paid out to Employee in a payroll during the 2nd half of June.
Worked Example of Individual Accelerator
For the example above, an assumption that it is November (later in the calendar year). Employee’s Quota for the calendar year 2020 is $[*]. Assume Employee’s cumulative revenue through October was $[*] (i.e. so Employee surpassed the Quota) and in November Employee sold an additional $[*]. Employee’s individual accelerator payment for November (paid in January) would be [*]% of $[*] ($[*]+ $[*]- $[*]) or $[*]. This example assumes all revenue is commissionable as accelerators do not apply to non-commissionable items as outlined in Section 5.2.
