Advantage Solutions Inc 8-K, filed Nov 2, 2026
Advantage Solutions Inc. (ADV)
About this 8-K
Advantage Solutions Inc filed this 8-K on November 2, 2026, reporting on events of October 30, 2026.
Advantage Solutions Inc. amended David Peacock's employment agreement on October 30, 2026, adding change-in-control severance of two times his target bonus and 100% accelerated vesting of time-based equity awards, subject to a 24-month condition for pre-effective-date awards. AI summary
Items reported
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Amended Employment Agreements with Named Executive Officers
On October 30, 2026 (the “Effective Date”), Advantage Solutions Inc. (together with its subsidiaries and affiliates, the “Company”) entered into a Second Amended and Restated Employment Agreement (the “Peacock A&R Employment Agreement”) with David Peacock, the Company’s Chief Executive Officer. In addition to his existing severance payments and benefits, the Peacock A&R Employment Agreement provides that, in the event that Mr. Peacock experiences a Change in Control Qualifying Termination (as defined below), he will also be entitled to (i) a lump sum amount equal to two times his target annual bonus, and (ii) 100% accelerated vesting of all outstanding time-based equity awards (provided, that, with respect to any equity awards granted prior to the Effective Date, he will only be entitled to the benefits provided under this clauses (i) and (ii) if his Qualifying Termination (as defined below) occurs within 24 months following a Change in Control).
On the Effective Date, the Company entered into a Second Amended and Restated Employment Agreement (the “Growe A&R Employment Agreement”) with Christopher Growe, the Company’s Chief Financial Officer, an Amended and Restated Employment Letter Agreement (the “Harsh A&R Employment Agreement”) with Jeffrey Harsh, the Company’s Chief Operating Officer, Branded Services, and an Amended and Restated Employment Agreement (the “Taylor A&R Employment Agreement”) with Michael Taylor, the Company’s Chief Operating Officer, Retailer Services and Activation. In addition to their existing severance payments and benefits, each of the Growe A&R Employment Agreement and the Harsh A&R Employment Agreement provides that, in the event that the executive experiences a Change in Control Qualifying Termination, he will be entitled to receive the following severance benefits: (i) continued payment of his base salary for a period of 18 months; (ii) employer-paid COBRA coverage for 18 months; (iii) a lump sum amount equal to 1.5 times his target annual bonus; and (iv) 100% accelerated vesting of all outstanding time-based equity awards and an 18 month post-termination exercise period for his outstanding stock options (provided, that, with respect to any equity awards granted prior to the Effective Date, the executive will only be entitled to the benefits provided under this clause (iv) if his Qualifying Termination occurs within 24 months following a Change in Control). The Harsh A&R Employment Agreement also provides Mr. Harsh with employer-paid COBRA coverage for 12 months following a Qualifying Termination.
The Taylor A&R Employment Agreement extends Mr. Taylor’s employer-paid COBRA coverage from nine months to 12 months following a Qualifying Termination. In addition, the Taylor A&R Employment Agreement provides that, in the event that Mr. Taylor experiences a Change in Control Qualifying Termination, he will be entitled to the following severance benefits: (i) an amount equal to 1.5 times Mr. Taylor’s base salary and target annual bonus, payable over a period of 18 months; (ii) a pro-rated annual bonus for the year of termination based on actual results; (iii) employer-paid COBRA coverage for 18 months; (iv) outplacement services; and (v) 100% accelerated vesting of all outstanding time-based equity awards and an 18 month post-termination exercise period for his outstanding stock options (provided, that, with respect to any equity awards granted prior to the Effective Date, Mr. Taylor will only be entitled to the benefits provided under this clause (v) if his Qualifying Termination occurs within 24 months following a Change in Control).
For purposes of the amended employment agreements, a “Change in Control Qualifying Termination” means (i) a termination of the executive’s employment by the Company without cause or by the executive for good reason (a “Qualifying Termination”) that occurs within 24 months after a change in control, or (ii) a Qualifying Termination that occurs (a) following the execution of a definitive agreement that, if the transaction(s) contemplated thereunder are consummated, would result in a Change in Control (as defined in the amended employment agreements), (b) (1) in connection with or as a result of the potential Change in Control transaction (as determined by the Company in good faith) and (2) other than by reasons unrelated to the potential Change in Control transaction (including, without limitation, for purposes of this clause (2), due to a reduction in force, termination due to poor performance,
restructuring, position elimination organization structure redesign or leadership change or consolidation, in each case, unrelated to the potential Change in Control transaction), and (c) within six months prior to the date of a Change in Control.
The foregoing descriptions of the Peacock A&R Employment Agreement, Growe A&R Employment Agreement, Harsh A&R Employment Agreement, and Taylor A&R Employment Agreement are qualified in their entirety by reference to the full text of such agreements, which are filed as Exhibits 10.1, 10.2, 10.3 and 10.4 to this Current Report on Form 8-K and are incorporated by reference herein.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
| * | Certain portions of this document that constitute confidential information have been redacted pursuant to Item 601(b)(10) of Regulation S-K. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.
| Date: November 2, 2026 | ADVANTAGE SOLUTIONS INC. | |||||
| By: | /s/ Christopher Growe | |||||
| Christopher Growe Chief Financial Officer | ||||||
Exhibit 10.1
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of October 30, 2026 (the “Effective Date”), by and between Advantage Solutions Inc., a Delaware corporation (the “Company”), and David Peacock (the “Executive”).
WHEREAS, the Company and the Executive previously entered into that certain Amended and Restated Employment Agreement dated as of February 1, 2023 (the “Prior Agreement”);
WHEREAS, the Company and the Executive desire to amend and restate the terms of the Prior Agreement as set forth herein; and
WHEREAS, it is the desire of Executive to continue to provide services to the Company on and after the Effective Date on the terms herein provided.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive agree as follows:
1. Agreement to Employ; No Conflicts.
(a) This Agreement shall become effective on the Effective Date.
(b) Upon the terms and subject to the conditions of this Agreement, the Company hereby employs the Executive, and the Executive hereby accepts employment with the Company. The Executive represents that (a) the Executive is entering into this Agreement voluntarily and that the Executive’s employment hereunder and compliance with the terms and conditions hereof will not conflict with or result in the breach by the Executive of any agreement to which the Executive is a party or by which the Executive may be bound (including, without limitation, any non-competition, non-solicitation, confidentiality or proprietary non-disclosure, or other similar covenant or agreement); (b) in connection with Executive’s employment with the Company, Executive will not use any confidential or proprietary information Executive may have obtained in connection with employment with any prior employer; (c) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Executive, enforceable in accordance with its terms; and (d) the Executive does not have any interest in any intangible asset including, without limitation, intellectual property, goodwill, trade secrets, and general know-how, used in, or useful to the Company’s business.
2. Employment Duties. During the Term (as defined below), the Executive shall serve as the Company’s Chief Executive Officer and shall serve as a member of the Board of Directors of the Company (the “Board”). The Executive shall also serve on request during all or any portion of the Term as an officer, director, and/or manager of any of the Company’s subsidiaries or affiliates as the Board may deem appropriate, without any additional compensation therefor, and the Executive acknowledges and agrees that the Executive’s compensation and benefits under this Agreement, as applicable, may be paid to the Executive by a subsidiary or affiliate of the Company (including, without limitation, Advantage Sales & Marketing LLC). During the Term, the Executive will use the Executive’s best efforts to advance the business interests of, and devote substantially all of Executive’s working time, attention, and efforts to the business and affairs of the Company (which shall include service to its affiliates). The Executive may engage in appropriate civic, charitable, or religious activities of the Executive’s own choosing; provided that such activities do not materially interfere with Executive’s performance of Executive’s duties and responsibilities hereunder (including the Restrictive Covenants) and are not otherwise contrary to the Company’s interests, in each case as determined by the Board in its reasonable good faith business judgment. Notwithstanding anything to the contrary in this Agreement, except as provided in Exhibit A, attached hereto, the Executive will not engage in any other business activities, including serving on outside boards or committees (whether or not the Executive receives any compensation therefor) without the prior written consent of the Company.
3. Term of Employment; Term Expiration.
(a) The term of the Executive’s employment under this Agreement shall commence on the Effective Date and continue until terminated as provided in Section 6 below (the “Term”).
(b) Upon termination of this Agreement, the Executive shall not be entitled to any rights or benefits hereunder.
4. Place of Employment. The Executive’s principal place of employment shall be in St. Louis, Missouri or, at the Company’s sole discretion, at the Company’s offices in the Chicago-metro area, or such other place as mutually agreed between the Company and the Executive, and from time to time Executive may be required to travel to other locations in the performance of Executive’s responsibilities under this Agreement.
5. Compensation; Reimbursement. During the Term, the Company shall pay or provide to the Executive, in full satisfaction for the Executive’s services provided hereunder, the following:
(a) Base Salary. During the Term, the Company shall pay the Executive a base salary of $1,100,000 (“Base Salary”), and which shall be subject to annual review and payable in accordance with the payroll policies of the Company for senior executives as from time to time in effect (the “Payroll Policies”), less such amounts as may be required to be withheld by applicable federal, state, and local law and regulations or otherwise elected by the Executive to be withheld. The Base Salary may only be reduced as part of a reduction in the base salary of all executive officers of the Company, and in no event may the Base Salary be reduced below ninety percent (90%) of the Base Salary provided for in this Agreement.
(b) Cash Bonus. During the Term (and subject to Section 6), the Executive shall be eligible to receive a target bonus of one hundred fifty percent (150%) of the Executive’s Base Salary (“Target Bonus Opportunity”) pursuant to the terms of the Executive Bonus Plan approved by the Board or the compensation committee of the Board (the “Human Capital Committee”), based on performance metrics to be established by the Board or the Human Capital Committee in its discretion following consultation with the Executive. Executive may be eligible for a maximum bonus opportunity as approved in writing from time to time by the Board or the Human Capital Committee. If Executive earns a bonus in accordance with the Executive Bonus Plan, Executive’s bonus will be paid in the calendar year immediately following the year to which the bonus relates, on or about March 15 of such year, or, if later, as soon as practicable following the completion of the Company’s audited financial statements for the year to which the bonus relates, and in no event later than December 31 of the calendar year immediately following the year to which the bonus relates.
(c) [Reserved.]
(d) Annual Equity Grants. For each fiscal year during the Term, the Executive will, upon the date annual equity grants are made to the other officers of the Company in the ordinary course and subject to the approval of the Board, receive equity grants in the same amount and upon the same terms as the long-term incentive awards granted to the Executive in connection with his commencement of employment. Any such grants of equity are subject to the terms and conditions of the issuing company’s organizational documents, any applicable plan documents, and individual award agreements, as such documents and agreements may be amended from time to time.
(e) Expenses. During the Term, the Company will pay or reimburse the Executive for ordinary and reasonable business-related expenses the Executive incurs in the performance of Executive’s duties upon presentation of appropriate documentation, subject to the Company’s expense reimbursement policies for senior executives, which are subject to the review and approval of the Board or the Human Capital Committee.
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(f) Benefits.
(i) During the Term, the Executive shall be entitled to participate in all health, life, disability, and other benefits generally made available from time to time by the Company to its senior executives pursuant to the terms of those plans; provided, however, that the Company shall be entitled to amend, modify or terminate any employee benefit plans.
(ii) During the Term, the Company shall maintain and the Executive shall be eligible to participate in Benicomp or any replacement executive healthcare plan that provides reimbursement for out of pocket healthcare costs, the Company’s executive long-term disability plan, and other executive benefit programs (if and as applicable); provided, however, that the Company shall be entitled to amend, modify or terminate any such plans (collectively, the “Benefit Plans”). Further, the Company’s maintaining any or all of the Benefit Plans for senior executives consistent with current levels shall be subject to review and approval of the Human Capital Committee.
(g) Commuting Allowance. During the Term, the Company will provide the Executive with a commuting allowance in an amount not to exceed $3,000 per month, less such amounts as may be required to be withheld by applicable federal, state, and local law and regulations or otherwise elected by the Executive to be withheld, subject to such policies as may from time to time be established and amended by the Company.
(h) Vacation and Sick Time. The Executive shall not earn, accrue, or receive vacation or floating holidays. The Executive shall be entitled to take paid vacation on an as-needed basis, subject to the approval of the Board, so long as the Executive’s absence from work does not interfere with the performance of the Executive’s job duties and the interests of the Company. Notwithstanding this provision, the Executive shall be eligible for sick time in accordance with the Company’s sick time policy and entitled to any leave of absence for which the Executive would otherwise be eligible in accordance with Company policy or any applicable local, state, or federal law.
6. Termination. The following shall apply in the event Executive’s employment terminates during the Term at any time for any of the reasons set forth below:
(a) Upon Death or Disability.
(i) If during the Term, the Executive shall become physically or mentally disabled, whether totally or partially, either permanently or so that the Executive, in the good faith judgment of the Company, is unable to perform Executive’s duties hereunder (with or without reasonable accommodation) for a period of twenty-six (26) weeks during any twelve (12) month period during the Term (a “Disability”), the Company may terminate the Executive’s employment hereunder. In order to assist the Company in making a Disability determination, the Executive shall, as reasonably requested by the Company, (A) make the Executive available for medical examinations by one or more physicians chosen by the Company and reasonably acceptable to the Executive; and (B) to the extent reasonably necessary to make such determination, grant to the Company and any such physicians access to all relevant medical information concerning the Executive, arrange to furnish copies of the Executive’s medical records to the Company, and use the Executive’s best efforts to cause the Executive’s own physicians to be available to discuss the Executive’s health with the Company and the Company will keep such records and information confidential except as reasonably necessary to make such determination. If the Executive dies during the Term, the Executive’s employment hereunder shall automatically terminate as of the close of business on the date of Executive’s death.
(ii) If the Executive’s employment is terminated as a result of the Executive’s Disability or death, the Executive (or Executive’s legal representative, as applicable) shall be entitled to receive: (A) the Executive’s Base Salary then in effect at the time of termination, through the date of termination; (B) reimbursement for any unreimbursed business expenses properly incurred by the Executive in accordance with Section 5(e); (C) employee benefits that Executive was receiving at such time through the date of termination; (D) the opportunity to elect
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benefits continuation post-employment, which opportunity the Executive may be entitled under the Benefit Plans as of the date of such termination pursuant to the terms thereof (the amounts described in clauses (A) through (D) hereof being referred to as the “Accrued Rights”); and (E) any bonus earned, but unpaid, as of the date of termination for the immediately preceding fiscal year (“Accrued Bonus”).
(iii) In addition to the Accrued Rights and Accrued Bonus, if the Executive’s employment is terminated as a result of the Executive’s Disability or death, the Company will, subject to Section 6(f), pay to the Executive or the Executive’s legal representative the Executive’s Base Salary then in effect at the time of such termination for twelve (12) months following such termination, less any amounts received by the Executive under the Company’s disability policies, if applicable. Such payments will be made in equal installments over such twelve (12)-month period in accordance with the Payroll Policies. The Executive will also, in the case of a termination for Disability, be entitled to a lump sum cash payment of $36,000, subject to applicable taxes and withholdings, which amount may be used by the Executive to pay for health insurance premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) or other continuation health care coverage, in the Executive’s sole discretion, which amount shall be payable on the First Payment Date (as defined below).
(iv) Following the termination of the Executive’s employment on account of the Executive’s Disability or upon the Executive’s death, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executive’s employment with the Company except as set forth in this Section 6(a) or as provided under any equity award agreement or plan under which any equity awards were granted to the Executive by the Company.
(b) For Cause. The Company may terminate the Executive’s employment hereunder at any time, effective immediately upon written notice to the Executive, for Cause (as defined below), subject to the notice and cure periods set forth below. If the Executive’s employment is terminated by the Company for Cause, the Executive shall be entitled to receive the Accrued Rights. Following a termination of the Executive’s employment by the Company for Cause, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executive’s employment with the Company except as set forth in this Section 6(b). The Company shall have “Cause” for termination of the Executive’s employment if any of the following has occurred:
(i) the Executive’s dishonesty or gross negligence in the performance of the Executive’s duties hereunder, which dishonesty or gross negligence, if curable in the reasonable determination of the Company, is not cured within 10 calendar days after a written notice specifying such dishonesty or gross negligence is received by the Executive from the Company;
(ii) the Executive’s willful or continued failure to perform the Executive’s duties in all material respects, which failure, if curable in the reasonable determination of the Company, is not cured within 10 calendar days after a written notice specifying such failure is received by the Executive from the Company;
(iii) the Executive’s intentional misconduct in connection with the performance of the Executive’s duties, which misconduct, if curable in the reasonable determination of the Company, is not cured within 10 calendar days after a written notice specifying such misconduct is received by the Executive from the Company;
(iv) the Executive’s conviction of, nolo contendere or guilty plea to, a crime that constitutes a felony, or a misdemeanor involving moral turpitude;
(v) a material breach by the Executive of this Agreement or any restrictive covenant(s) entered into by and between the Company and the Executive (including, without limitation, any restrictive covenant agreement or confidentiality, property protection, non-competition and/or non-solicitation agreement executed by Executive, collectively, the “Restrictive Covenant(s)”), which breach, if curable in the reasonable determination of the Company, is not cured within 10 calendar days after a written notice specifying such breach is received by the Executive from the Company;
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(vi) following a reasonable investigation by the Company, the Company finds a violation by the Executive of any material written policy of the Company, including, but not limited to, policies and procedures pertaining to harassment, discrimination, and drug and alcohol use, which violation, if curable in the reasonable determination of the Company, is not cured within 10 calendar days after a written notice specifying such violation is received by the Executive from the Company; or
(vii) confirmed positive illegal drug test result for the Executive, after the Executive has been given a reasonable opportunity to present evidence refuting such result to the Company.
(c) Without Cause or With Good Reason.
(i) The Company may terminate the Executive’s employment hereunder without Cause at any time upon written notice to the Executive and the Executive may terminate Executive’s employment for Good Reason (as defined below) if Executive provides three (3) months prior written notice to the Company, which notice period may be reduced by the Company upon receipt of such notice. If the Executive’s employment is terminated by the Company without Cause or by the Executive with Good Reason during the Term, the Executive shall be entitled to receive the Accrued Rights, any Accrued Bonus and, subject to Section 6(e), the additional benefits provided in this Section 6(c).
(ii) The Executive will be entitled to continue to receive as severance Executive’s Base Salary then in effect at the time of such termination (or in the case of a diminution in the Executive’s Base Salary which would give rise to Good Reason for the Executive’s resignation, the Base Salary in effect prior to such diminution) for a period of twenty-four (24) months (the “Severance Period”). Such payments will be made in equal installments over the Severance Period in accordance with the Payroll Policies.
(iii) The Executive shall receive a pro-rated portion of the annual bonus payable for the year of termination under Section 5(b), based upon the number of days in the year of termination through the date of termination relative to 365 and based on actual performance as determined by the Human Capital Committee, to be paid at the same time as other executives of the Company. In addition, if the Executive’s employment is terminated during the Term by reason of a Change in Control Qualifying Termination (as defined below), in addition to the prorated bonus set forth in the preceding sentence, Executive will also receive a lump sum cash payment equal to two times his Target Bonus Opportunity (the “CIC Bonus”), payable on the later of (a) the First Payment Date or (b) the date of the Change in Control (as defined in Exhibit B).
(iv) To the extent such termination is not a Change in Control Qualifying Termination (as defined below), with respect to each outstanding equity award, the Executive shall be eligible to vest in an additional number of Executive’s then outstanding equity awards equal to (i) the amount of the equity awards scheduled to vest on the next applicable vesting date, multiplied by (ii) a fraction, the numerator of which is the number of days worked in the vesting period through the date of termination and the denominator of which is the total number of days in the vesting period ending with the next applicable vesting date. To the extent equity awards that are subject solely to time-based vesting become vested pursuant to this Section 6(c)(iv), they shall vest immediately effective as the date of the Executive’s termination of employment. To the extent PSUs and any other equity awards that are subject to performance-based vesting become vested pursuant to this Section 6(c)(iv), they shall vest on the next applicable vesting date, provided that such PSUs and other equity awards subject to performance-based vesting shall only vest to the extent of actual performance.
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(B) To the extent such termination is a Change in Control Qualifying Termination, with respect to each outstanding equity award then held by the Executive, the Executive shall be eligible to vest in one hundred percent (100%) of Executive’s then-outstanding equity awards the vesting of which is time-based effective as the date of the Executive’s termination of employment, which vesting shall occur effective as of the later of (1) the effective date of the Release or (2) the date of a Change in Control; provided, however, that with respect to equity awards granted to Executive prior to the Effective Date (the “Existing Equity Awards”), the foregoing acceleration shall only apply to the extent the Executive’s Change in Control Qualifying Termination occurs pursuant to clause (i) of the definition of such term and during the period commencing on or after the date of a Change in Control and ending twenty-four (24) months thereafter. To the extent any equity awards are subject to performance-based vesting, the accelerated vesting of such equity awards that are performance-based shall be governed by the applicable equity plan and agreement pursuant to which they were granted.
(C) In addition, the post-termination exercise period for any vested stock options held by the Executive as of the date of the Executive’s termination shall be extended through the earlier to occur of (i) the third anniversary of the Executive’s date of termination and (ii) the expiration date of such stock option.
(D) The foregoing provisions are hereby deemed to be a part of each equity award and to supersede any less favorable provision in any agreement or plan regarding such equity award (and, for the avoidance of doubt, if any equity award is subject to more favorable vesting pursuant to any agreement or plan regarding such equity award, such more favorable provisions shall continue to apply and shall not be limited by this clause (iv)).
(E) For the avoidance of doubt, if Executive’s termination without Cause or resignation for Good Reason occurs prior to a Change in Control but under circumstances that mean such termination or resignation could constitute a Change in Control Qualifying Termination, then any unvested portion of Executive’s outstanding equity awards that are eligible for additional accelerated vesting under clause (iv)(B) (in addition to any accelerated vesting that will occur under clause (iv)(A)) will remain outstanding for six (6) months or until the occurrence of a Change in Control (whichever is earlier) so that any additional vesting acceleration benefits provided under clause (iv)(B) can be provided if a Change in Control occurs within six (6) months following such termination and Executive experiences a Change in Control Qualifying Termination (provided that in no event will any awards remain outstanding beyond their maximum term or expiration date). The Company shall in good faith consider an amendment to the Executive’s Existing Equity Awards at the time of his termination without Cause or resignation for Good Reason occurring prior to a Change in Control to provide that such awards shall be eligible for the same acceleration treatment if such termination ultimately qualifies as a Change in Control Qualifying Termination.
(v) The Executive will also be entitled to a lump sum cash payment of $72,000, subject to applicable taxes and withholdings, which amount may be used by the Executive to pay for health insurance premiums under COBRA or other continuation health care coverage, in the Executive’s sole discretion, which amount will be payable on the First Payment Date.
(vi) Following a termination of the Executive’s employment by the Company without Cause, the Executive shall have no further rights to any compensation or any other benefits except as set forth in this Section 6(c).
(vii) For purposes of this Agreement, the “Change in Control Qualifying Termination” shall mean (a) a termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason occurring on or following the date of a Change in Control but prior to the date that is twenty-four (24) months following such Change in Control, or (b) a termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason that occurs (1) following the execution of a definitive agreement
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that, if the transaction(s) contemplated thereunder are consummated, would result in a Change in Control (a “Change in Control Agreement”), (2) (I) in connection with or as a result of the potential Change in Control transaction (as determined by the Company in good faith) and (II) other than a termination or resignation for reasons unrelated to the potential Change in Control transaction (including, without limitation, for purposes of this clause (II), due to a reduction in force, termination due to poor performance, restructuring, position elimination, organizational structure redesign or leadership change or consolidation, in each case, unrelated to the potential Change in Control transaction), and (3) within six (6) months prior to the date of the consummation of a Change in Control (whether or not pursuant to such Change in Control Agreement). For the avoidance of doubt, with respect to clause (b) above, if a Change in Control does not occur within six (6) months following a termination of Executive’s employment by the Company without Cause or by Executive for Good Reason, then such termination will cease to be a Change in Control Qualifying Termination for purposes of this Agreement, and Executive will not be entitled to the CIC Bonus.
(d) Resignation Without Good Reason. The Executive may terminate Executive’s employment without Good Reason (as defined below) upon thirty (30) days’ prior written notice to the Company, which notice period may be reduced by the Company upon receipt of such notice. In the event of such a termination, the Executive shall be entitled to receive the Accrued Rights. Following a termination of the Executive’s employment by the Executive without Good Reason, the Executive shall have no further rights to any compensation or any other benefits except as set forth in this Section 6(d). The Executive shall have “Good Reason” for termination of Executive’s employment hereunder if, other than for Cause, any of the following has occurred:
(i) a reduction in the Base Salary or Target Bonus Opportunity, other than as described under Section 5(a) of this Agreement;
(ii) the movement by the Company, without the Executive’s consent, of the Executive’s principal place of employment to a site that is more than 50 miles from the Executive’s current principal place of employment;
(iii) the Company has reduced or reassigned, in any material respect, the duties and responsibilities of the Executive hereunder and such event has not been rescinded within sixty (60) business days after the Executive notifies the Company that the Executive objects thereto;
(iv) the diminution or other reduction in the title of the Executive’s position with the Company;
(v) the Company requires the Executive to directly report to anyone other than the Board; or
(vi) any material breach by the Company of this Agreement.
Notwithstanding the foregoing, the Executive shall not have “Good Reason” to terminate the Executive’s employment in connection with any of the foregoing events unless (1) Executive provides the Company with three (3) months prior written notice of such termination, and such notice is provided within ninety (90) days of the initial occurrence of the event constituting Good Reason; (2) such termination is conditioned upon the Company failing to cure the event constituting Good Reason within the thirty (30)-day period following provision of notice; and (3) the Company fails to cure such event constituting Good Reason within such thirty (30)-day period.
(e) Release. Notwithstanding the foregoing, in order to be eligible for any of the payments under Section 6(a) (in the case of termination for Disability) or 6(c), the Executive must (a) execute and deliver to the Company a general release, substantially in the form attached hereto as Exhibit C (the “Release”) (as may be modified only to the extent necessary to (i) have the same legal effect on the date of
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execution as it would if it were executed on the date hereof, and (ii) be in accordance with the limitations and requirements of applicable law) and not subsequently revoke such Release; and (b) be and remain in compliance with the Executive’s obligations under this Agreement and the Restrictive Covenant(s). In the event that the Executive materially breaches the Executive’s obligations hereunder or under the Restrictive Covenant(s), any and all payments or benefits provided for in Sections 6(a) or 6(c) shall cease immediately.
(f) No Reduction of Severance. Except as provided above, the amount of any severance payment or benefit shall not be reduced or offset by reason of any compensation earned by the Executive from a subsequent employer, and the Executive will not be under any obligation to seek other employment or to take any other actions to mitigate any severance payments or benefits amounts payable to the Executive.
(g) Resignations. The Executive shall be deemed to have voluntarily resigned from each officer and each director position the Executive holds with the Company and/or any of its subsidiaries or affiliates upon the termination of the Executive’s employment for any reason. The Executive agrees to provide the Company with any documentation requested by it to evidence such resignation(s) promptly following the Company’s request.
(h) Sole and Exclusive Remedy. It is further acknowledged and agreed by the parties that the actual damages to the Executive in the event of termination would be difficult if not impossible to ascertain, and, therefore, the salary and benefit continuation provisions set forth in this Section 6 shall be the Executive’s sole and exclusive remedy in the case of termination and shall, as liquidated damages or severance pay or both, be considered for all purposes in lieu of any other rights or remedies, at law or in equity, which the Executive may have in the case of such termination.
(i) Return of Information. On or before the termination of Executive’s employment, or at any time upon demand of the Company, for whatever reason, Executive will return to the Company, all Company property, equipment, confidential information, records, electronically stored data, and other materials relating to Executive’s employment, including tools, documents, papers, computer software, and passwords and other identification materials. This obligation applies to all materials relating to the affairs of the Company or any of its customers, clients, vendors, or agents that may be in Executive’s possession or control.
7. Non-Disparagement. The Executive will not, during the Term and thereafter: (a) make any statement disparaging or criticizing the Company or any products or services offered by the Company or any of its affiliates; or (b) make any other statement which would be reasonably expected to (i) impair the goodwill or reputation of the Company, or (ii) impair the goodwill or reputation of any products or services offered by the Company or any of its affiliates. For the avoidance of doubt, the foregoing shall not prohibit the Executive during the Term from discharging Executive’s duties by providing constructive criticism to Executive’s peers and superiors within the Company concerning the Company’s products and services for the purpose of improving their quality and efficiency or from responding to a valid subpoena, or other form of legal process.
8. Certain Agreements.
(a) Customers, Suppliers. The Executive does not have, and at any time during the Term shall not have, any employment with or any direct or indirect interest in (as owner, partner, shareholder, employee, director, officer, agent, consultant, or otherwise) any client or customer of or supplier to the Company, other than the ownership of less than five percent (5%) of the securities of any class of corporation whose shares are listed or admitted to trade on a national securities exchange or are quoted on Nasdaq or a similar means if Nasdaq is no longer providing such information.
(b) Code of Conduct. The Executive has reviewed, is familiar with, and agrees to abide by the Company’s Code of Business Conduct and Ethics, as may be amended from time to time.
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9. Necessary Amendments to Comply with Section 409A. The parties intend that the payments and benefits provided for in this Agreement either be exempt from Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), or be provided in a manner that complies with Section 409A of the Code and any ambiguity herein shall be interpreted so as to be consistent with the intent of this Section. Notwithstanding anything contained herein to the contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a “separation from service” from the Company within the meaning of Section 409A of the Code (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)). Further, if the Executive is a “specified employee” as such term is defined under Section 409A of the Code and the regulations and guidance promulgated thereunder, any payments described in Section 6 shall be delayed for a period of six (6) months following the Executive’s termination of employment to the extent and up to the amount necessary to ensure such payments are not subject to the penalties and interest under Section 409A of the Code. The Executive’s right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A of the Code. The Release to be executed pursuant to Section 6(e) shall be executed by Executive no later than thirty (30) days following the Executive’s separation from service (such thirty (30) day deadline, the “Release Date”), and if the Executive fails or refuses to do so the Executive shall forfeit the right to such severance compensation as would otherwise be due and payable. If the Executive executes such release, payment of the severance compensation that becomes payable hereunder shall commence on the Company’s first payroll date that is coincident with or immediately following the Release Date (the “First Payment Date”), and the Executive shall receive any severance compensation that otherwise would have been paid prior to such payroll date absent the application of this Section 9 in a lump-sum payment on such payroll date. All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (A) any reimbursement is for expenses incurred during the Executive’s lifetime (or during a shorter period of time specified in this Agreement), (B) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (C) the reimbursement of any eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (D) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. If additional guidance is issued under, or modifications are made to, Section 409A of the Code or any other law affecting payments to be made under this Agreement, the Executive agrees that the Company may take such reasonable actions and adopt such amendments as the Company believes are necessary to ensure continued compliance with the Code, including Section 409A thereof. However, the Company does not hereby or otherwise represent or warrant that any payments hereunder are or will be in compliance with Section 409A, and the Executive shall be responsible for obtaining his own tax advice with regard to such matters.
10. Notices. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) by hand (with written confirmation of receipt), (b) by registered mail, return receipt requested, or (c) by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate address set forth below (or to such other address as a party may designate by notice given in accordance herewith).
(a) For notices and communications to the Company:
Advantage Solutions Inc.
7676 Forsyth Boulevard, Fifth Floor
St. Louis, Missouri 63105
Attn: Chief Legal Officer
(b) For notices and communications to the Executive, to the Executive’s most recent address on file with the Company. Any party hereto may, by notice to the other, change its address for receipt of notices hereunder.
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11. Parachute Payments.
(a) Notwithstanding any other provisions of this Agreement or any employee benefit plans, programs or arrangements, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits under Section 6 above, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (in the order provided in Section 11(b) below) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state, and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state, and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(b) The Total Payments shall be reduced in the following order: (i) reduction on a pro-rata basis of any cash severance payments that are exempt from Section 409A of the Code, (ii) reduction on a pro-rata basis of any non-cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code; provided, that in case of subclauses (ii), (iii) and (iv), any reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on the Executive under Section 409A of the Code, and that results in the maximum economic benefit to Executive on an after-tax basis.
(c) The Company will select an adviser with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax prior to the date of the applicable change in ownership or control (the “Independent Advisers”) to make determinations regarding the application of this Section 11. The Independent Adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company within fifteen (15) business days following the date on which Executive’s right to the Total Payments is triggered, if applicable, or such other time as requested by Executive (provided, that Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax) or the Company. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. Any good faith determinations of the Independent Adviser made hereunder shall be final, binding, and conclusive upon the Company and Executive.
(d) In the event it is later determined that to implement the objective and intent of this Section 11, a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or provided promptly by the Company to Executive, except to the extent the Company reasonably determines would result in the imposition of an excise tax under Section 409A of the Code.
12. Whistleblower Protections and Trade Secrets. Notwithstanding anything to the contrary contained herein, nothing in this Agreement prohibits Executive from reporting possible violations of federal law or regulation to any United States government agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934, or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation (including the right to receive an award for information provided to any such government agencies). Furthermore, in accordance with 18 U.S.C. § 1833, notwithstanding anything to the contrary in this Agreement: (i) Executive shall not be in breach of this Agreement, and shall not be held criminally or civilly liable under any federal or state trade secret law (A) for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the
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purpose of reporting or investigating a suspected violation of law, or (B) for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (ii) if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney, and may use the trade secret information in the court proceeding, if Executive files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order. In addition, nothing in this Agreement or the Restrictive Covenants shall prevent the Executive from (x) communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency, including without limitation the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, or the U.S. National Labor Relations Board, without notifying or seeking permission from the Company, (y) exercising any rights the Executive may have under Section 7 of the U.S. National Labor Relations Act, such as the right to engage in concerted activity, including collective action or discussion concerning wages or working conditions, or (z) discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that the Executive has reason to believe is unlawful.
13. General.
(a) Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Missouri, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction.
To ensure the timely and economical resolution of disputes that may arise in connection with Executive’s employment with the Company, to the extent permitted by applicable law, Executive and the Company agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this Agreement, Executive’s employment, or the termination of Executive’s employment, including but not limited to statutory claims, shall be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law by final, binding and confidential arbitration, by a single neutral arbitrator in St. Louis, Missouri, chosen jointly by the parties, and will be conducted by JAMS, Inc. (“JAMS”) under the then applicable JAMS rules (which can be found at the following web address: https://www.jamsadr.com/rules-employment-arbitration/ or will be provided to Executive upon request without charge). If the parties cannot agree on an arbitrator, then JAMS shall appoint an arbitrator in accordance with JAMS rules. By agreeing to this arbitration procedure, both Executive and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company acknowledges that Executive will have the right to be represented by legal counsel at any arbitration proceeding. In addition, all claims, disputes, or causes of action under this paragraph, whether by Executive or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to award any or all remedies that Executive or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required of Executive if the dispute were filed in superior court (or the similar court of competent jurisdiction in the jurisdiction in which the arbitration will take place). Nothing in this Agreement is intended to prevent either Executive or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
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(b) Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
(c) Amendment; Waiver. This Agreement may be amended, modified, superseded, canceled, renewed, or extended, and the terms hereof may be waived, only by a written instrument executed by the parties hereto or, in the case of a waiver, by the party waiving compliance. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.
(d) Successors and Assigns. This Agreement shall be binding upon the Executive, without regard to the duration of the Executive’s employment by the Company or reasons for the cessation of such employment, and inure to the benefit of the Executive’s administrators, executors, heirs, and assigns, although the obligations of the Executive are personal and may be performed only by the Executive. The Company may assign this Agreement and its rights and interests, together with its obligations, hereunder (a) in connection with any sale, transfer, or other disposition of all or substantially all of its assets or business(es), whether by merger, consolidation or otherwise; or (b) to any wholly owned subsidiary of the Company; or (c) as collateral to one or more lenders of the Company or its subsidiaries or affiliates. This Agreement shall also be binding upon and inure to the benefit of the Company and its subsidiaries, successors, and assigns, and the rights of the Company hereunder are enforceable by its subsidiaries or affiliates, which are the intended third party beneficiaries hereof and no other third party beneficiary is so otherwise intended.
(e) Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature.
(f) Severability. If any portion of this Agreement is held invalid or inoperative, the other portions of this Agreement shall be deemed valid and operative and, so far as is reasonable and possible, effect shall be given to the intent manifested by the portion held invalid or inoperative.
(g) Rules of Construction. Each of the parties acknowledges that it has been represented by (or has had the opportunity to be represented by) independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel (if the party has elected to obtain such advice). Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted it is of no application and is hereby expressly waived.
(h) Entire Agreement. This Agreement (together with the documents referred to herein, including without limitation the Plan and the Restrictive Covenants) supersedes all prior agreements between the parties with respect to its subject matter (including, without limitation, the Prior Agreement), and is a complete and exclusive statement of the terms of the agreement between the parties with respect thereto.
(i) Delivery by Facsimile or Email. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms thereof and deliver
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them to all other parties (with any costs associated with such request and delivery to be assumed by the requesting party). No party hereto shall raise the use of a facsimile machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.
(j) Survival. The covenants, provisions, terms, and conditions of Sections 6 and 7 and Sections 9 through 13 of this Agreement shall survive and continue in full force in accordance with their terms notwithstanding the termination of this Agreement and/or the termination of the Executive’s employment regardless of the circumstances of or reason for such termination.
(k) Compensation Recovery Policy. The Executive acknowledges and agrees that, to the extent the Company adopts any clawback or similar policy pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, and any rules and regulations promulgated thereunder, the Executive shall take all action necessary or appropriate to comply with such policy (including, without limitation, entering into any further agreements, amendments or policies necessary or appropriate to implement and/or enforce such policy with respect to past, present and future compensation, as appropriate).
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| ADVANTAGE SOLUTIONS INC. | ||
| Name: | /s/ Rhianna Hughes | |
| By: | Rhianna Hughes | |
| Its: | Chief Legal Officer & Corporate Secretary | |
| EXECUTIVE | ||
| /s/ David Peacock | ||
| David Peacock | ||
[Signature page to Amended and Restated Employment Agreement]
EXHIBIT C
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the “Agreement”) is entered into by and between David Peacock (“Employee”), on the one hand, and Advantage Solutions Inc., a Delaware corporation (the “Company”), on the other hand.
WHEREAS, Company employed Employee pursuant to that certain Second Amended and Restated Employment Agreement dated as of [ ], 2026, as amended or otherwise modified from time to time (the “Employment Agreement”);
WHEREAS, Employee’s employment and all of Employee’s positions with Company and its subsidiaries and affiliates terminated effective [DATE] (the “Termination Date”);
WHEREAS, Employee seeks to obtain the payments and benefits provided under the Employment Agreement;
WHEREAS, Employee acknowledges that Employee has received all accrued wages, bonus, vacation/paid time off, and any other compensation due as of the Termination Date; provided, however, that Employee understands Employee may subsequently receive a separate check for reimbursement of reasonable business expenses in accordance with Company policies; and
WHEREAS, capitalized terms used, but not defined in this Agreement, shall have the meanings ascribed to such terms in the Employment Agreement.
NOW, THEREFORE, in an effort to put any and all disputes behind the parties, for and in consideration of the mutual covenants contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties have agreed to settle finally and forever any and all claims between them of any nature whatsoever relating to or arising from Employee’s employment by Company and/or the termination of that employment.
1. Effective Date. This Agreement shall not become effective unless and until (i) the Company has received this Agreement signed by Employee without modification; and (ii) the seven (7)-day revocation period referenced herein has expired and Employee has not revoked Employee’s assent to this Agreement, and shall thereafter be effective as of the date such revocation period terminates without exercise (the “Effective Date”).
2. Severance Pay and Benefits. Provided that (i) the Effective Date has occurred; (ii) Employee has not revoked Employee’s assent to this Agreement; and (iii) Employee has returned all Company property (including without limitation any and all confidential and proprietary information) issued to Employee in connection with Employee’s employment with the Company:
(a) Company shall pay Employee the gross amount of [$AMOUNT], which represents [APPLICABLE TIME PERIOD] ( ) months (the “Severance Period”) of Employee’s current Base Salary under the Employment Agreement, less normal, customary, and required withholdings for federal and state income tax, FICA, and other taxes (“the Severance Pay”). Unless terminated earlier pursuant to the Employment Agreement, the Severance Pay shall be paid in pro rata amounts over the Severance Period in accordance with the Company’s payroll practices. The first installment of the Severance Pay shall be made as soon as administratively possible following the Effective Date.
(b) Company shall pay Employee the pro rata bonus in accordance with Section [ ] of the Employment Agreement and shall cause the additional vesting provided for in Section [ ] of the Employment Agreement.1
| 1 | Note to Draft: To include the CIC Bonus amount in the event of a Change in Control Qualifying Termination. |
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(c) Company shall pay Employee the gross amount of [$AMOUNT], less normal, customary, and required withholdings for federal and state income tax, FICA, and other taxes, which amount may be used by the Employee to pay for health insurance premiums under COBRA or other continuation health care coverage, in the Employee’s sole discretion.
(d) The entire amount of the payments set forth in Section 2 and its subsections paid by the Company to Employee is considered taxable income and will be reported on a Form W-2 issued to Employee for the applicable year.
(e) In the event the Company, after reasonable investigation, determines that Employee has breached Employee’s obligations under (i) this Agreement, (ii) the Restrictive Covenants, or (iii) the confidentiality or non-disparagement obligations contained in the Employment Agreement, Employee’s eligibility for the Severance Pay and Severance Benefits shall cease immediately. Moreover, from the date of the breach, the Company shall be entitled to recover payments in excess of one thousand dollars ($1,000.00) made to the Employee for Severance Pay under this Agreement.
(f) Employee acknowledges that the Severance Pay and Severance Benefits exceeds any earned wages or anything else of value otherwise owed to Employee by the Company.
3. General Release of Claims.
(a) Except for the obligations arising out of this Agreement and any claims that cannot be waived as a matter of law, in consideration of this Agreement and the other good and valuable consideration provided to Employee pursuant hereto, Employee, for Employee and on behalf of each and all of Employee’s respective legal predecessors, successors, assigns, fiduciaries, heirs, parents, spouses, companies, and affiliates (all referred to as the “Employee Releasors”) hereby irrevocably and unconditionally releases, and fully and forever discharges and absolves Company, its parents, subsidiaries, and affiliates (“Advantage Companies”) and each of their respective partners, officers, directors, managers, shareholders, members, agents, employees, heirs, divisions, attorneys, trustees, administrators, executors, representatives, predecessors, successors, assigns, related organizations, and related employee benefit plans (collectively, the “Company Releasees”), of, from and for any and all claims, rights, causes of action, demands, damages, rights, remedies, and liabilities of whatsoever kind or character, in law or equity, known or unknown, suspected or unsuspected, past, present, or future, that the Employee Releasors have ever had, may now have, or may later assert against the Company Releasees whether or not arising out of or related to Employee’s employment with Company or the termination of Employee’s employment by Company (hereinafter referred to as “Employee’s Released Claims”), from the beginning of time up to and including the Effective Date, including without limitation, any claims, debts, obligations, and causes of action of any kind arising under any (i) contract including but not limited to the Employment Agreement and any bonus or other compensation plan, (ii) any common law (including but not limited to any tort claims), or (iii) any federal, state, or local statutory law including, without limitation, any law which prohibits discrimination or harassment on the basis of sex, race, national origin, veteran status, age, immigration, or marital status, sexual orientation, disability, or on any other basis, including without limitation, those arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, any state or local wage and hour laws (to the fullest extent permitted by law), and/or any state or local laws which prohibit discrimination or harassment of any kind, including, without limitation, the California Family Rights Act and the California Fair Employment and Housing Act; provided, however, that Employee’s release does not waive, release, or otherwise discharge any claim or cause of action that cannot legally be waived, including, but not limited to, any claim for workers’ compensation benefits and unemployment benefits.
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(b) Employee represents and warrants that Employee has brought no complaint, claim, charge, action, or proceeding against any of the Advantage Companies in any jurisdiction or forum, nor will Employee, from the Effective Date forward, encourage any other person or persons in doing so. Employee covenants and agrees never to pursue any judicial proceedings against the Company Releasees asserting any of the Employee’s Released Claims and (notwithstanding the above representation and warranty) to dismiss forthwith any such proceedings initiated to date. Employee shall not bring any complaint, claim, charge, action, or proceeding to challenge the validity of this Agreement or encourage any other person or persons in doing so. Notwithstanding the foregoing, nothing herein shall prevent Employee from filing or from cooperating in any charge filed with a governmental agency; provided, however, Employee acknowledges and agrees that Employee is waiving the right to any monetary recovery should any agency (such as the Equal Opportunity Commission or any similar state or local agency) pursue any claim for Employee’s benefit. Further, nothing herein shall prevent Employee from challenging the validity of the release of Employee’s claims, if any, under the Age Discrimination in Employment Act.
(c) Except with respect to a breach of obligations arising out of this Agreement, if any, and to the fullest extent permitted by law, execution of this Agreement by the parties operates as a complete bar and defense against any and all of Employee’s Released Claims.
4. Waiver of Unknown Claims. Employee expressly acknowledges that Employee has read and understood the following language contained in Section 1542 of the California Civil Code:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
But for the obligations arising from this Agreement, having reviewed this provision, Employee nevertheless hereby voluntarily waives and relinquishes any and all rights or benefits Employee may have under section 1542, or any other statutory or non-statutory law of similar effect. Thus, Employee expressly acknowledges this Agreement is intended to and does include in its effect, without limitation, all claims Employee does not know or suspect to exist in Employee’s favor at the time of signing this Agreement, and that this Agreement extinguishes any such claims. Employee warrants that Employee has consulted counsel and/or has had the opportunity to consult with counsel about this Agreement and specifically about the waiver of section 1542 (or other state law of similar effect) and that Employee understands the section 1542 (or other state law of similar effect) waiver and freely and knowingly enters into this Agreement. Employee acknowledges that Employee may later discover facts different from or in addition to those Employee now knows or believes to be true regarding the matters released or described in this Agreement, and even so, Employee agrees that the releases contained in this Agreement shall remain effective in all respects notwithstanding any later discovery of any different or additional facts.
5. No Admissions. By signing this Agreement, the Company does not admit to any wrongdoing or legal violation by the Company or the Company Releasees.
6. Cooperation. Employee hereby agrees to cooperate with and provide requested assistance to Company with respect to any claim, cause of action, litigation, or other matter involving the Company, in which: (a) Employee (i) has significant knowledge, or (ii) was intimately involved, during the course of Employee’s employment; and (b) such requested assistance and/or cooperation is reasonably necessary and appropriate. For the avoidance of doubt, nothing in this Section 6 is intended to require Employee to provide anything but truthful and accurate information or testimony in the event Employee is asked for information or called to testify.
7. Return of Information and Property. Employee represents that as of the date of Employee’s execution of this Agreement, Employee has returned to the Company, all Company property, equipment, confidential information, records, electronically stored data, and other materials relating to Employee’s employment, including tools, documents, papers, computer software, passwords, and other identification materials, ID cards, keys, credit cards, personal computers, tablets, cell phones, and/or instruction manuals. This obligation applies to all materials relating to the affairs of the Company or any of its customers, clients, vendors, employees, or agents that may be in Employee’s possession or control. All such Company property must be returned by Employee in order for Employee to commence receiving the Severance Pay and Severance Benefits provided under Section 2 hereof.
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8. Compliance with Prior Restrictive Covenants. Employee hereby reaffirms Employee’s obligations under the Restrictive Covenants.
9. Remedy for Breach.
(a) Employee acknowledges that Employee’s breach of the obligations contained in this Agreement would cause the Company irreparable harm that could not be reasonably or adequately compensated in damages in an action at law. If Employee breaches or threatens to breach any of the provisions contained in this Agreement, the Company shall be entitled to an injunction, without bond, restraining Employee from committing such breach. The Company’s right to exercise its option to obtain an injunction shall not limit its right to any other remedies for breach of any provision of this Agreement.
(b) Employee agrees that Employee’s obligations under this Agreement shall be absolute and unconditional.
(c) The foregoing shall in no way limit the Company’s rights under Section 2(e) of this Agreement.
10. Confidentiality. Employee agrees the terms and conditions of this Agreement shall be confidential and shall not be disclosed except (as applicable) (i) as required by subpoena or otherwise by law; (ii) to an accountant or tax preparer for the purposes of preparing tax returns only; (iii) to Employee’s attorney; or (iv) to Employee’s spouse; provided, however, that Employee advises the person receiving such information of the confidentiality obligations required as to such information, and such person commits to keep such information confidential on terms no less stringent than the terms of this Agreement. Further, if Employee receives a subpoena, court order, or other compulsory process requiring disclosure of the terms of this Agreement, Employee shall provide written notice to the Company so as to afford the Company a reasonable opportunity to seek a protective order, to the fullest extent permitted by law. If application for a protective order is made promptly by the Company, Employee shall not disclose the terms of this Agreement prior to receiving a court order or consent of the Company.
11. Employee Representations. Employee represents and agrees that Employee (a) has suffered no injuries or damages in the course and scope of Employee’s employment with the Company that Employee did not already report to the Company; (b) fully understands all terms of this Agreement and is signing it voluntarily and with full knowledge of its significance; and (c) is not relying and has not relied upon any representation or statement made by the Company or its agents, representatives, or attorneys, with regard to the subject matter, basis, or effect of this Agreement or otherwise, other than as specifically stated in this Agreement.
12. Notice. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) by hand (with written confirmation of receipt), (b) by registered mail, return receipt requested, or (c) by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate address set forth below (or to such other address as a party may designate by notice given in accordance herewith).
As to Employee:
[ • ]
As to Company:
Advantage Solutions Inc.
7676 Forsyth Boulevard, Fifth Floor
St. Louis, Missouri 63105
Attn: Chief Legal Officer
13. No Modification. No modification to any term or provision contained in this Agreement shall be binding upon any party unless made in writing and signed by both parties.
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14. Severability. If any provision of this Agreement is held to be unenforceable for any reason, all of the remaining parts of the Agreement shall remain in full force and effect.
15. No Assignment. Each party represents Employee or it has not assigned any portion of the Employee’s Released Claims to any third party.
16. Choice of Law. This Agreement shall be governed by the laws of the State of Missouri, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction.
17. Integration. This Agreement contains the entire agreement between the parties hereto and, except as expressly referenced herein, supersedes any and all prior agreements, arrangements, negotiations, discussions, or understandings between or among the parties hereto relating to the subject matter hereof. No oral understanding, statements, representations, promises, or inducements contrary to the terms of this Agreement exist. This Agreement cannot be changed, in whole or in part, or terminated unless in writing signed by the parties to this Agreement. Other than these exceptions noted herein and the provisions of the Employment Agreement which survive termination by their express terms (including without limitation the Restrictive Covenants), Employee understands that all prior agreements between Employee and the Company are terminated and that neither Employee nor the Company has any continuing rights or obligations under any such agreement(s).
18. Entire Agreement. This Agreement and the Employment Agreement (together with the documents referred to herein and therein, including without limitation the Restrictive Covenants) supersede all prior agreements between the parties with respect to their subject matter, and are a complete and exclusive statement of the terms of the agreement between the parties with respect hereto and thereto.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature.
20. Successors and Assigns. This Agreement shall bind and shall inure to the benefit of the successors and assigns of each party. With respect to Employee, this Agreement shall also bind and inure to the benefit of Employee’s heirs and assigns.
21. Delivery by Facsimile or Email. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms thereof and deliver them to all other parties (with any costs associated with such request and delivery to be assumed by the requesting party). No party hereto shall raise the use of a facsimile machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.
22. ADEA Provisions and Notification. In compliance with the requirements of the Age Discrimination in Employment Act (ADEA), as amended by the Older Workers’ Benefit Protection Act of 1990, Employee acknowledges by Employee’s signature below that, with respect to the rights and claims waived and released herein under the ADEA, Employee has read and understands this Agreement and specifically understands the following:
(a) That Employee is advised to consult with an attorney before signing this Agreement;
(b) That Employee is releasing the Company Releasees from, among other things, any claims which Employee might have against any of them pursuant to the ADEA as amended;
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(c) That the releases contained in this Agreement do not cover any rights or claims that may arise after the date on which Employee executed this Agreement;
(d) That Employee has been given a period of twenty-one (21) days in which to consider this Agreement but if Employee elects to forego any portion of the twenty-one (21)-day period Employee understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one (21)-day period; and
(e) That Employee may revoke this Agreement during the seven (7)-day period following the date of Employee’s execution of this Agreement by giving written notice of said revocation in accordance with the notice provision of this Agreement, and that this Agreement will not become binding and effective until the seven (7) day revocation period has expired.
| Dated: | ||||||||||
| David Peacock | ||||||||||
| Dated: | Advantage Solutions Inc. | |||||||||
| By: | ||||||||||
| Name: | ||||||||||
| Its: | ||||||||||
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Exhibit 10.2
SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS SECOND AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of October 30, 2026 (the “Effective Date”), by and between Advantage Solutions Inc., a Delaware corporation (the “Company”), and Christopher Growe (the “Executive”).
WHEREAS, the Company and the Executive previously entered into that certain Amended and Restated Employment Agreement dated as of March 31, 2023 (the “Prior Agreement”);
WHEREAS, the Company and the Executive desire to amend and restate the terms of the Prior Agreement as set forth herein; and
WHEREAS, it is the desire of Executive to continue to provide services to the Company on and after the Effective Date on the terms herein provided.
NOW, THEREFORE, in consideration of the promises and mutual agreements herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Executive agree as follows:
1. Agreement to Employ; No Conflicts.
1.1 This Agreement shall become effective on the Effective Date.
1.2 Upon the terms and subject to the conditions of this Agreement, the Company hereby employs the Executive, and the Executive hereby accepts employment with the Company. The Executive represents that (a) the Executive is entering into this Agreement voluntarily and that the Executive’s employment hereunder and compliance with the terms and conditions hereof will not conflict with or result in the breach by the Executive of any agreement to which the Executive is a party or by which the Executive may be bound (including, without limitation, any non-competition, non-solicitation, confidentiality or proprietary non-disclosure, or other similar covenant or agreement); (b) in connection with Executive’s employment with the Company, Executive will not use any confidential or proprietary information Executive may have obtained in connection with employment with any prior employer; (c) upon the execution and delivery of this Agreement by the Company, this Agreement shall be the valid and binding obligation of the Executive, enforceable in accordance with its terms; and (d) the Executive does not have any interest in any intangible asset including, without limitation, intellectual property, goodwill, trade secrets, and general know-how, used in, or useful to the Company’s business.
2. Employment Duties. During the Term (as defined below), the Executive shall serve as the Company’s Chief Financial Officer. The Executive shall also serve on request during all or any portion of the Term as an officer, director, and/or manager of any of the Company’s subsidiaries or affiliates as the Company may deem appropriate, without any additional compensation therefor. Executive acknowledges and agrees that the Executive’s compensation and benefits under this Agreement, as applicable, may be paid to the Executive by a subsidiary or affiliate of the Company (including, without limitation, Advantage Sales & Marketing LLC). During the Term, the Executive will use the Executive’s best efforts to advance the business interests of, and devote substantially all of Executive’s working time, attention and efforts to the business and affairs of the Company (which shall include service to its affiliates). The Executive may engage in appropriate civic, charitable or religious activities of the Executive’s own choosing, provided that such activities do not materially interfere with Executive’s performance of Executive’s duties and responsibilities hereunder (including the Restrictive Covenants) and are not otherwise contrary to the Company’s interests, in each case as determined by the Company in its reasonable good faith business judgement. Except as set forth above, the Executive will not engage in any other business activities, including serving on outside boards or committees (whether or not the Executive receives any compensation therefor) without the prior written consent of the Company.
3. Term of Employment; Term Expiration.
3.1 The term of the Executive’s employment under this Agreement shall commence on the Effective Date and continue until terminated as provided herein (the “Term”).
3.2 Upon termination of this Agreement, the Executive shall not be entitled to any rights or benefits hereunder.
4. Place of Employment. The Executive’s principal place of employment shall be in St. Louis, Missouri; provided, however, that the Company in its sole discretion may require the Executive to report to another location so long as such location is where the Company requires senior management (including the Company’s Chief Executive Officer) to meet and perform duties. The Executive and the Company may also mutually agree on a different location. From time to time Executive may be required to travel to other locations in the performance of Executive’s responsibilities under this Agreement.
5. Compensation; Reimbursement. During the Term, the Company shall pay or provide to the Executive, in full satisfaction for the Executive’s services provided hereunder, the following:
5.1 Base Salary. During the Term, the Company shall pay the Executive a base salary of $600,000 per year (“Base Salary”), which shall be subject to annual review and payable in accordance with the payroll policies of the Company for senior executives as from time to time in effect less such amounts as may be required to be withheld by applicable federal, state and local law and regulations or otherwise elected by the Executive to be withheld (the “Payroll Policies”). The Base Salary may only be reduced as part of a reduction in the base salary of all executive officers of the Company (and for the avoidance of doubt, following a Change in Control (as defined below), the reference to executive officers of the Company shall include, without limitation, the executive officers of the ultimate parent entity of the Company (or its successor)) and in no event may the Base Salary be reduced below ninety percent (90%) of the Base Salary provided for in this Agreement.
5.2 Cash Bonus. During the Term, Executive shall be eligible to receive a target bonus of one hundred percent (100%) of the Executive’s Base Salary (the “Target Bonus Opportunity”) pursuant to the terms of the Executive Bonus Plan approved by the Company’s Board of Directors (the “Board”) or the compensation committee of the Board (the “Human Capital Committee”), based on performance metrics to be established by the Board or the Human Capital Committee in its discretion following consultation with the Executive. Executive may be eligible for a maximum bonus opportunity as approved in writing from time to time by the Board or the Human Capital Committee in their sole and absolute discretion. If Executive earns a bonus in accordance with the Executive Bonus Plan, Executive’s bonus will be paid in the calendar year immediately following the year to which the bonus relates, on or about March 15 of such year, or, if later, as soon as practicable following the completion of the Company’s audited financial statements for the year to which the bonus relates, and in no event later than December 31 of the calendar year immediately following the year to which the bonus relates.
5.3 [Reserved.]
5.4 Equity. The Executive will be eligible for an annual equity grant with an aggregate value of up to 200% of Executive’s Base Salary, subject to the approval and discretion of the Human Capital Committee and subject to the terms and conditions of the Company’s organizational documents, any applicable plan documents, and individual award agreements, as such documents and agreements may be amended from time to time.
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5.5 Expenses. During the Term, the Company will pay or reimburse the Executive for ordinary and reasonable business-related expenses the Executive incurs in the performance of his duties upon presentation of appropriate documentation, subject to the Company’s expense reimbursement policies for senior executives, which are subject to the review and approval of the Board or the Human Capital Committee.
5.6 Benefits.
(a) During the Term, the Executive shall be entitled to participate in all health, life, disability and other benefits generally made available from time to time by the Company to its senior executives pursuant to the terms of those plans; provided, however, that the Company shall be entitled to amend, modify or terminate any employee benefit plans.
(b) During the Term, the Company shall maintain and the Executive shall be eligible to participate in Benicomp or any replacement executive healthcare plan that provides reimbursement for out of pocket healthcare costs; the Company’s executive long-term disability plan; and other executive benefit programs (if and as applicable); provided, however, that the Company shall be entitled to amend, modify or terminate any such plans (the plans referenced in this Section 5.6, collectively, the “Benefit Plans”). Further, the Company’s maintaining any or all of the Benefit Plans for senior executives consistent with current levels shall be subject to review and approval of the Human Capital Committee.
5.7 Vacation and Sick Time. The Executive shall not earn, accrue, or receive vacation or floating holidays. The Executive shall be entitled to take paid vacation on an as needed basis, subject to the approval of the Chief Executive Officer, so long as the Executive’s absence from work does not interfere with the performance of the Executive’s job duties and the interests of the Company. Notwithstanding this provision, the Executive shall be eligible for sick time in accordance with the Company’s sick time policy and entitled to any leave of absence for which the Executive would otherwise be eligible in accordance with Company policy or any applicable local, state or federal law.
6. Termination. The following shall apply in the event Executive’s employment terminates during the Term at any time for any of the reasons set forth below:
6.1 Upon Death or Disability.
(a) If during the Term, the Executive experiences a Disability (as defined below), the Company may terminate the Executive’s employment hereunder. In order to assist the Company in making a Disability determination, the Executive shall, as reasonably requested by the Company, (a) make the Executive available for medical examinations by one or more physicians chosen by the Company and reasonably acceptable to the Executive and (b) to the extent reasonably necessary to make such determination, grant to the Company and any such physicians access to all relevant medical information concerning the Executive, arrange to furnish copies of the Executive’s medical records to the Company and use the Executive’s best efforts to cause the Executive’s own physicians to be available to discuss the Executive’s health with the Company and the Company will keep such records and information confidential except as reasonably necessary to make such determination. If the Executive dies during the Term, the Executive’s employment hereunder shall automatically terminate as of the close of business on the date of Executive’s death.
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(b) If the Executive’s employment is terminated as a result of the Executive’s Disability or death, the Executive (or Executive’s legal representative, as applicable) shall be entitled to receive: (A) the Executive’s Base Salary then in effect at the time of such termination, through the date of termination; (B) reimbursement for any unreimbursed business expenses properly incurred by the Executive in accordance with Section 5.5; (C) employee benefits that Executive was receiving at such time through the date of termination; (D) the opportunity to elect benefits continuation post-employment, which opportunity the Executive may be entitled under the Benefit Plans as of the date of such termination pursuant to the terms thereof (the amounts described in clauses (A) through (D) hereof being referred to as the “Accrued Rights”); and (E) any bonus earned but unpaid for the immediately preceding fiscal year, which bonus shall be paid in accordance with Section 5.2 (the “Accrued Bonus”).
(c) In addition to the Accrued Rights and Accrued Bonus, if the Executive’s employment is terminated as a result of the Executive’s Disability or death, the Company will, subject to Sections 6.5, 6.9 and 9, pay to the Executive (or the Executive’s legal representative) the following payments and benefits:
(i) the Executive’s Base Salary then in effect at the time of such termination for the six (6) month period following the date of termination, less any amounts received by the Executive under the Company’s disability policies, if applicable. Such payments will be made in equal installments over such six (6) month period in accordance with the Payroll Policies, Section 9 and the terms of the Release (as defined below), with the first such payment to occur on the First Payment Date (as defined below) (which first payment will include any installments that would have been paid pursuant to the Payroll Policies prior to such First Payment Date); and
(ii) the Executive will also, in the case of a termination for Disability, be entitled to payment to the Executive of the Company’s portion of post-employment Company-sponsored health insurance premiums under the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) (at the same levels and costs in effect on the date of termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars)) to the extent permissible under the Company’s health insurance plans, including, if permitted and still maintained by the Company, Benicomp, (as may be amended, modified or terminated by the Company from time to time) and subject to Executive’s valid election to continue healthcare coverage under COBRA, during such six (6) month period, subject to applicable taxes and withholdings; provided, that if the Executive becomes covered by the health insurance policy of any subsequent employer during such six (6) month period, the continuation of such health insurance coverage and premium payment by the Company shall cease. Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay the Executive on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Subject to Section 9, any payments by the Company under this clause (ii) will commence on the First Payment Date (which first payment will include any instalments that would have been paid pursuant to the Payroll Policies prior to such First Payment Date).
(d) Following the termination of the Executive’s employment on account of the Executive’s Disability or upon the Executive’s death, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executive’s employment with the Company except as set forth in this Section 6.1 or as provided under any equity award agreement or plan under which any equity awards were granted to the Executive by the Company.
(e) For purposes of this Agreement, “Disability” shall mean the Executive becoming physically or mentally disabled, whether totally or partially, either permanently or so that the Executive, in the good faith judgment of the Company, is unable to perform Executive’s duties hereunder (with or without reasonable accommodation) for a period of twenty six (26) weeks during any twelve (12) month period during the Term; provided, however, that to the extent that any payments or benefits payable upon a termination hereunder constitute deferred compensation subject to Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”), then the definition of “Disability” shall be as set forth in Treas. Reg. Section 1.409A 3(i)(4).
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6.2 For Cause. The Company may terminate the Executive’s employment hereunder at any time, effective immediately upon written notice to the Executive, for Cause (as defined below), subject to the notice and cure periods set forth below. If the Executive’s employment is terminated by the Company for Cause, the Executive shall be entitled to receive the Accrued Rights. Following a termination of the Executive’s employment by the Company for Cause, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executive’s employment with the Company except as set forth in this Section 6.2. The Company shall have “Cause” for termination of the Executive’s employment if any of the following has occurred:
(a) the Executive’s dishonesty or gross negligence in the performance of the Executive’s duties hereunder, which dishonesty or gross negligence, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such dishonesty or gross negligence is received by the Executive from the Company;
(b) the Executive’s willful or continued failure to perform the Executive’s duties in all material respects, which failure, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such failure is received by the Executive from the Company;
(c) the Executive’s intentional misconduct in connection with the performance of the Executive’s duties, which misconduct, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such misconduct is received by the Executive from the Company;
(d) the Executive’s conviction of, nolo contendere or guilty plea to, a crime that constitutes a felony, or a misdemeanor involving moral turpitude;
(e) a material breach by the Executive of this Agreement or any restrictive covenant(s) entered into by and between the Company and the Executive (including, without limitation, any restrictive covenant agreement or confidentiality, property protection, non-competition and/or non-solicitation agreement executed by Executive, collectively, the “Restrictive Covenant(s)”), which breach, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such breach is received by the Executive from the Company;
(f) following a reasonable investigation by the Company, the Company finds a violation by the Executive of any material written policy of the Company, including, but not limited to, policies and procedures pertaining to harassment, discrimination, and drug and alcohol use, which violation, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such violation is received by the Executive from the Company; or
(g) confirmed positive illegal drug test result for the Executive, after the Executive has been given a reasonable opportunity to present evidence refuting such result to the Company.
6.3 Without Cause or With Good Reason.
(a) The Company may terminate the Executive’s employment hereunder without Cause at any time upon written notice to the Executive and the Executive may terminate Executive’s employment for Good Reason (as defined below) if Executive provides three (3) months prior written notice to the Company, which notice period may be reduced by the Company upon receipt of such notice.
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(b) In addition to the Accrued Rights and any Accrued Bonus, if the Executive’s employment is terminated by the Company without Cause or Executive terminates Executive’s employment for Good Reason during the Term and such termination is not a Change in Control Qualifying Termination (as defined below), subject to Section 6.5, 6.9 and 9, the Executive will be entitled to receive as severance the following payments and benefits:
(i) The Executive will be entitled to continue to receive as severance Executive’s Base Salary then in effect at the time of such termination (or in the case of a diminution in the Executive’s Base Salary which would give rise to Good Reason for the Executive’s resignation, the Base Salary in effect prior to such diminution) for a period of twelve (12) months following the date of termination (the “Severance Period”). Such payments will be made in equal installments over the Severance Period in accordance with the Payroll Policies, Section 9 hereof, and the terms of the Release, with the first such payment to occur on the First Payment Date (which first payment will include any installments that would have been paid pursuant to the Payroll Policies prior to such First Payment Date);
(ii) With respect to each outstanding equity award, the Executive shall be eligible to vest in an additional number of Executive’s then outstanding equity awards equal to (1) the amount of the equity awards scheduled to vest on the next applicable vesting date, multiplied by (2) a fraction, the numerator of which is the number of days worked in the vesting period through the date of termination and the denominator of which is the total number of days in the vesting period ending with the next applicable vesting date. To the extent equity awards that are subject solely to time-based vesting become vested pursuant to this paragraph, they shall vest immediately effective as the date of the Executive’s termination of employment. To the extent any equity awards that are subject to performance-based vesting become vested pursuant to this paragraph, they shall vest on the next applicable vesting date, provided that such equity awards subject to performance-based vesting shall only vest to the extent of actual performance. In addition, the post-termination exercise period for any vested stock options held by the Executive as of the date of the Executive’s termination shall be extended through the earlier to occur of (A) the first anniversary of the Executive’s date of termination and (B) the expiration date of such stock option. The foregoing provisions are hereby deemed to be a part of each equity award and to supersede any less favorable provision in any agreement or plan regarding such equity award (and, for the avoidance of doubt, if any equity award is subject to more favorable vesting pursuant to any agreement or plan regarding such equity award, such more favorable provisions shall continue to apply and shall not be limited by this clause (ii)); and
(iii) Subject to Section 6.5, the Executive will also be entitled during the Severance Period to payment to the Executive of the Company’s portion of post-employment Company-sponsored health insurance premiums under COBRA (at the same levels and costs in effect on the date of termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars)) and subject to Executive’s valid election to continue healthcare coverage under COBRA, to the extent permissible under the Company’s health insurance plans, including, if permitted and still maintained by the Company and/or Benicomp, (as may be amended, modified or terminated by the Company from time to time), subject to applicable taxes and withholdings; provided, that if the Executive becomes covered by the health insurance policy of any subsequent employer during the Severance Period, the continuation of such health insurance coverage (including, without limitation, Benicomp) and premium payment by the Company shall cease. Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay the Executive on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Subject to Section 9, any payments by the Company under this clause (iii) will commence on the First Payment Date (which first payment will include any instalments that would have been paid pursuant to the Payroll Policies prior to such First Payment Date).
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(c) In addition to the Accrued Rights and any Accrued Bonus, if the Executive’s employment is terminated by reason of a Change in Control Qualifying Termination during the Term, subject to Section 6.5, 6.9 and 9, the Executive will be entitled to receive as severance the following payments and benefits (for the avoidance of doubt, in the event that Executive’s termination without Cause or resignation for Good Reason occurs prior to a Change in Control but ultimately qualifies as a Change in Control Qualifying Termination, the severance payments and benefits set forth in this Section 6.3(c) will be reduced by any severance payments and benefits that Executive previously received pursuant to Section 6.3(b) as a result of such termination or resignation):
(i) The Executive will be entitled to continue to receive as severance Executive’s Base Salary then in effect at the time of such termination (or in the case of a diminution in the Executive’s Base Salary which would give rise to Good Reason for the Executive’s resignation, the Base Salary in effect prior to such diminution) for a period of eighteen (18) months following the date of termination (the “CIC Severance Period”). Such payments will be made in equal installments over the CIC Severance Period in accordance with the Payroll Policies, Section 9 hereof, and the terms of the Release, with the first such payment to occur on the First Payment Date (which first payment will include any installments that would have been paid pursuant to the Payroll Policies prior to such First Payment Date);
(ii) Subject to Section 6.5, the Executive will also be entitled during the CIC Severance Period to payment to the Executive of the Company’s portion of post-employment Company-sponsored health insurance premiums under COBRA (at the same levels and costs in effect on the date of termination (excluding, for purposes of calculating cost, an employee’s ability to pay premiums with pre-tax dollars)) and subject to Executive’s valid election to continue healthcare coverage under COBRA, to the extent permissible under the Company’s health insurance plans, including, if permitted and still maintained by the Company and/or Benicomp, (as may be amended, modified or terminated by the Company from time to time), subject to applicable taxes and withholdings; provided, that if the Executive becomes covered by the health insurance policy of any subsequent employer during the CIC Severance Period, the continuation of such health insurance coverage (including, without limitation, Benicomp) and premium payment by the Company shall cease. Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay the Executive on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Subject to Section 9, any payments by the Company under this clause (ii) will commence on the First Payment Date (which first payment will include any instalments that would have been paid pursuant to the Payroll Policies prior to such First Payment Date);
(iii) A lump sum payment equal to one and one-half (1.5) times the Executive’s Target Bonus Opportunity then in effect at the time of such termination (or in the case of a diminution in the Executive’s Target Bonus Opportunity which would give rise to Good Reason for the Executive’s resignation, the Target Bonus Opportunity in effect prior to such diminution). Subject to Section 9, such payment will be made on the later of (A) the First Payment Date or (B) the date of the Change in Control; and
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(iv) With respect to each outstanding equity award then held by the Executive, the Executive shall be eligible to vest in one hundred percent (100%) of Executive’s then-outstanding equity awards the vesting of which is time-based effective as the date of the Executive’s termination of employment, which vesting shall occur effective as of the later of (1) the effective date of the Release or (2) the date of a Change in Control; provided, however, that with respect to equity awards granted to Executive prior to the Effective Date (the “Existing Equity Awards”), the foregoing acceleration shall only apply to the extent the Executive’s Change in Control Qualifying Termination occurs pursuant to clause (i) of the definition of such term and during the period commencing on or after the date of a Change in Control and ending twenty-four (24) months thereafter. To the extent any equity awards are subject to performance-based vesting, the accelerated vesting of such equity awards that are performance-based shall be governed by the applicable equity plan and agreement pursuant to which they were granted. Further, the post-termination exercise period for any vested stock options held by the Executive as of the date of the Executive’s termination that are not Existing Equity Awards shall be extended through the earlier to occur of (x) the eighteen (18) month anniversary of the Executive’s date of termination and (y) the expiration date of such stock options. The foregoing provisions are hereby deemed to be a part of each equity award and to supersede any less favorable provision in any agreement or plan regarding such equity award (and, for the avoidance of doubt, if any equity award is subject to more favorable vesting pursuant to any agreement or plan regarding such equity award, such more favorable provisions shall continue to apply and shall not be limited by this clause (iv)). For the avoidance of doubt, if Executive’s termination without Cause or resignation for Good Reason occurs prior to a Change in Control but under circumstances that mean such termination or resignation could constitute a Change in Control Qualifying Termination, then any unvested portion of Executive’s outstanding equity awards that are eligible for additional accelerated vesting or extension under this clause (iv) (in addition to any accelerated vesting that will occur under Section 6.3(b)(ii)) will remain outstanding for six (6) months or until the occurrence of a Change in Control (whichever is earlier) so that any additional vesting acceleration or extension benefits provided under this clause (iv) can be provided if a Change in Control occurs within six (6) months following such termination and Executive experiences a Change in Control Qualifying Termination (provided that in no event will any awards remain outstanding beyond their maximum term or expiration date). The Company shall in good faith consider an amendment to the Executive’s Existing Equity Awards at the time of his termination without Cause or resignation for Good Reason occurring prior to a Change in Control to provide that such awards shall be eligible for the same acceleration and extension treatment if such termination ultimately qualifies as a Change in Control Qualifying Termination.
(d) Following a termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason, the Executive shall have no further rights to any compensation or any other benefits except as set forth in this Section 6.3 or as provided under any equity award agreement or plan under which any equity awards were granted to the Executive by the Company.
(e) For purposes of this Agreement, a “Change in Control” shall have the meaning set forth in Exhibit A.
(f) For purposes of this Agreement, the “Change in Control Qualifying Termination” shall mean (i) a termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason occurring on or following the date of a Change in Control but prior to the date that is twenty-four (24) months following such Change in Control, or (ii) a termination of the Executive’s employment by the Company without Cause or by the Executive for Good Reason that occurs (A) following the execution of a definitive agreement that, if the transaction(s) contemplated thereunder are consummated, would result in a Change in Control (a “Change in Control Agreement”), (B) (1) in connection with or as a result of the potential Change in Control transaction (as determined by the Company in good faith) and (2) other than a termination or resignation for reasons unrelated to the potential Change in Control transaction (including, without limitation, for purposes of this clause (2), due to a reduction in force, termination due to poor performance, restructuring, position elimination, organizational structure redesign or leadership change or consolidation, in each case, unrelated to the potential Change in Control
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transaction), and (C) within six (6) months prior to the date of the consummation of a Change in Control (whether or not pursuant to such Change in Control Agreement). For the avoidance of doubt, with respect to clause (ii) above, if a Change in Control does not occur within six (6) months following a termination of Executive’s employment by the Company without Cause or by Executive for Good Reason, then such termination will cease to be a Change in Control Qualifying Termination for purposes of this Agreement, and Executive will not be entitled to any of the severance payment and benefits set forth in Section 6.3(c), and Executive shall instead only be eligible to receive the severance payments and benefits set forth in Section 6.3(b).
6.4 Resignation Without Good Reason. The Executive may terminate Executive’s employment without Good Reason upon thirty (30) days’ prior written notice to the Company, which notice period may be reduced by the Company upon receipt of such notice. In the event of such a termination, the Executive shall be entitled to receive the Accrued Rights. Following a termination of the Executive’s employment by the Executive without Good Reason, the Executive shall have no further rights to any compensation or any other benefits except as set forth in this Section 6.4. The Executive shall have “Good Reason” for termination of Executive’s employment hereunder if, other than for Cause, any of the following has occurred:
(a) a reduction in the Base Salary or Target Bonus Opportunity other than as described under Section 5.1 of this Agreement;
(b) the Company requires the Executive to directly report to anyone other than the Chief Executive Officer (including, without limitation, following a Change in Control, the Executive ceasing to report to the chief executive officer of the ultimate parent entity of the Company (or its successor));
(c) the movement by the Company, without the Executive’s consent, of the Executive’s principal place of employment to a site that is more than 50 miles from the Executive’s current principal place of employment; provided, however, that, pursuant to Section 4 of this Agreement, the Company in its sole discretion may require the Executive to report to another location so long as such location is where the Company requires senior management (including the Company’s Chief Executive Officer) to meet and perform duties;
(d) the diminution or other reduction in the title of the Executive’s position with the Company (including, without limitation, following a Change in Control, the Executive ceasing to serve as the chief financial officer of the ultimate parent entity of the Company (or its successor)); or
(e) any material breach by the Company of this Agreement or any other agreement under which the Executive provides services to the Company.
Notwithstanding the foregoing, the Executive shall not have “Good Reason” to terminate the Executive’s employment in connection with any of the foregoing events unless (1) Executive provides the Company with three (3) months prior written notice of such termination, and such notice is provided within ninety (90) days of the initial occurrence of the event constituting Good Reason, (2) such termination is conditioned upon the Company failing to cure the event constituting Good Reason within the thirty (30)-day period following provision of notice, (3) the Company fails to cure such event constituting Good Reason within such thirty (30)-day period; and (4) and such resignation for Good Reason occurs following the expiration of the foregoing cure period.
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6.5 Release. Notwithstanding the foregoing, in order to be eligible for any of the payments under Section 6.1 (in the case of termination for Disability) or 6.3, the Executive must (a) execute and deliver to the Company a general release, substantially in the form attached hereto as Exhibit B (the “Release”) (as may be modified only to the extent necessary to (i) have the same legal effect on the date of execution as it would if it were executed on the date hereof, and (ii) be in accordance with the limitations and requirements of applicable law) and not subsequently revoke such Release, and (b)be and remain in compliance with the Executive’s obligations under this Agreement and the Restrictive Covenant(s). In the event that the Executive materially breaches the Executive’s obligations hereunder or under the Restrictive Covenant(s), any and all payments or benefits provided for in Sections 6.1 and 6.3 shall cease immediately. The date on which the Release becomes effective is referred to herein as the “Release Effective Date.”
6.6 No Reduction of Severance. Except as provided above, the amount of any severance payment or benefit shall not be reduced or offset by reason of any compensation earned by the Executive from a subsequent employer, and the Executive will not be under any obligation to seek other employment or to take any other actions to mitigate any severance payments or benefits amounts payable to the Executive.
6.7 Resignations. The Executive shall be deemed to have voluntarily resigned from each officer and each director position the Executive holds with the Company and/or any of its subsidiaries or affiliates upon the termination of the Executive’s employment for any reason. The Executive agrees to provide the Company with any documentation requested by it to evidence such resignation(s) promptly following the Company’s request.
6.8 Sole and Exclusive Remedy. It is further acknowledged and agreed by the parties that the actual damages to the Executive in the event of termination would be difficult if not impossible to ascertain, and, therefore, the salary and benefit continuation provisions set forth in this Section 6 shall be the Executive’s sole and exclusive remedy in the case of termination and shall, as liquidated damages or severance pay or both, be considered for all purposes in lieu of any other rights or remedies, at law or in equity, which the Executive may have in the case of such termination.
6.9 Return of Property and Information. On or before the termination of Executive’s employment, or at any time upon demand of the Company, for whatever reason, Executive will return to the Company, all Company property, equipment, confidential information, records electronically stored data and other materials relating to Executive’s employment, including tools, documents, papers, computer software, and passwords and other identification materials. This obligation applies to all materials relating to the affairs of the Company or any of its customers, clients, vendors, or agents that may be in Executive’s possession or control.
7. Non-Disparagement. Subject to Section 12 below, the Executive will not, during the Term and thereafter: (a) make any statement disparaging or criticizing the Company, or any products or services offered by the Company or any of its affiliates, or (b) make any other statement which would be reasonably expected to (i) impair the goodwill or reputation of the Company or (ii) impair the goodwill or reputation of any products or services offered by the Company or any of its affiliates. For the avoidance of doubt, the foregoing shall not prohibit the Executive during the Term from discharging his duties by providing constructive criticism to his peers and superiors within the Company concerning the Company’s products and services for the purpose of improving their quality and efficiency or from responding to a valid subpoena or other form of legal process. Notwithstanding the foregoing, nothing herein shall restrict the Executive from making truthful statements in response to a court order or lawful subpoena, to a governmental agency, or which by law cannot be subject to a non-disparagement covenant. Further, nothing herein shall prevent the Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that the Executive has reason to believe is unlawful.
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8. Certain Agreements.
8.1 Customers, Suppliers. The Executive does not have, and at any time during the Term shall not have, any employment with or any direct or indirect interest in (as owner, partner, shareholder, employee, director, officer, agent, consultant or otherwise) any client or customer of or supplier to the Company, other than the ownership of less than five percent (5%) of the securities of any class of corporation whose shares are listed or admitted to trade on a national securities exchange or are quoted on Nasdaq or a similar means if Nasdaq is no longer providing such information.
8.2 Company Policies and Procedures. Executive acknowledges and agrees that employment with the Company is conditioned upon Executive’s timely and proper completion of federal and any applicable state employment eligibility requirements (including, but not limited to, the federal form I-9) and all new hire paperwork relevant to Executive’s position, including the Company’s Agreement Regarding Confidentiality, Non-Solicitation and Other Matters. Executive further agrees that employment with the Company is subject to, and Executive agrees to abide by, the policies and procedures made available to Executive as of the date hereof including, without limitation, those set forth in the Company’s Employee Handbook and Code of Business Conduct & Ethics, as may be amended from time to time.
9. Necessary Amendments to Comply with Section 409A. The parties intend that the payments and benefits provided for in this Agreement either be exempt from Section 409A of the Code, or be provided in a manner that complies with Section 409A of the Code and any ambiguity herein shall be interpreted so as to be consistent with the intent of this Section. Notwithstanding anything contained herein to the contrary, all payments and benefits which are payable upon a termination of employment hereunder shall be paid or provided only upon those terminations of employment that constitute a “separation from service” from the Company within the meaning of Section 409A of the Code (determined after applying the presumptions set forth in Treas. Reg. Section 1.409A-1(h)(1)). Further, if the Executive is a “specified employee” as such term is defined under Section 409A of the Code and the regulations and guidance promulgated thereunder, any payments described in Section 6 shall be delayed for a period of six (6) months and one day following the Executive’s separation from service to the extent and up to the amount necessary to ensure such payments are not subject to the penalties and interest under Section 409A of the Code. Any payments described in this Agreement that qualify for the “short-term deferral” exception from Section 409A as described in the Treasury Regulation Section 1.409A-1(b)(4) will be paid under such exception. The Executive’s right to receive any installment payments under this Agreement, including without limitation any continuation salary payments that are payable on Company payroll dates, shall be treated as a right to receive a series of separate payments and, accordingly, each such installment payment shall at all times be considered a separate and distinct payment as permitted under Section 409A of the Code. In the event the Release Effective Date does not occur on or prior to the date that is thirty (30) days following the Executive’s date of termination, the Executive shall not be entitled to any of the payments provided under Section 6.1 (in the case of termination for Disability) or 6.3 (other than the Accrued Rights or the Accrued Bonus). Except as set forth in Section 6.3(c)(iii), payment of the severance compensation that becomes payable hereunder shall commence on the Company’s first payroll date that is coincident with or immediately following the date that is thirty (30) days following the Executive’s separation from service (the “First Payment Date”), and the Executive shall receive any severance compensation that otherwise would have been paid prior to such First Payment Date absent the application of this Section 9 in a lump-sum payment on such First Payment Date. All reimbursements and in-kind benefits provided under the Agreement shall be made or provided in accordance with the requirements of Section 409A to the extent that such reimbursements or in-kind benefits are subject to Section 409A, including, where applicable, the requirements that (A) any reimbursement is for expenses incurred during the Executive’s lifetime (or during
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a shorter period of time specified in this Agreement), (B) the amount of expenses eligible for reimbursement during a calendar year may not affect the expenses eligible for reimbursement in any other calendar year, (C) the reimbursement of any eligible expense will be made on or before the last day of the calendar year following the year in which the expense is incurred, and (D) the right to reimbursement is not subject to set off or liquidation or exchange for any other benefit. If additional guidance is issued under, or modifications are made to, Section 409A of the Code or any other law affecting payments to be made under this Agreement, the Executive agrees that the Company may take such reasonable actions and adopt such amendments as the Company believes are necessary to ensure continued compliance with the Code, including Section 409A thereof. However, the Company does not hereby or otherwise represent or warrant that any payments hereunder are or will be in compliance with Section 409A, and the Executive shall be responsible for obtaining his own tax advice with regard to such matters.
10. Notices. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) by hand (with written confirmation of receipt), (b) by registered mail, return receipt requested, or (c) by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate address set forth below (or to such other address as a party may designate by notice given in accordance herewith).
(a) For notices and communications to Company:
Advantage Solutions Inc.
7676 Forsyth Boulevard, Fifth Floor
St. Louis, Missouri 63105
Attention: Chief Legal Officer
(b) For notices and communications to the Executive, to the Executive’s most recent address on file with the Company. Any party hereto may, by notice to the other, change its address for receipt of notices hereunder.
11. Parachute Payments.
(a) Notwithstanding any other provisions of this Agreement or any employee benefit plans, programs or arrangements, in the event that any payment or benefit by the Company or otherwise to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of this Agreement or otherwise (all such payments and benefits, including the payments and benefits under Section 6 above, being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (in the order provided in Section 11(b) below) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which Executive would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
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(b) The Total Payments shall be reduced in the following order: (i) reduction on a pro-rata basis of any cash severance payments that are exempt from Section 409A of the Code, (ii) reduction on a pro-rata basis of any non-cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro-rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to Executive on a pro-rata basis or such other manner that complies with Section 409A of the Code; provided, that in case of subclauses (ii), (iii) and (iv), any reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on the Executive under Section 409A of the Code, and that results in the maximum economic benefit to Executive on an after-tax basis.
(c) The Company will select an adviser with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax prior to the date of the applicable change in ownership or control, (the “Independent Adviser”) to make determinations regarding the application of this Section 11. The Independent Adviser shall provide its determination, together with detailed supporting calculations and documentation, to Executive and the Company within fifteen (15) business days following the date on which Executive’s right to the Total Payments is triggered, if applicable, or such other time as requested by Executive (provided, that Executive reasonably believes that any of the Total Payments may be subject to the Excise Tax) or the Company. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. Any good faith determinations of the Independent Adviser made hereunder shall be final, binding and conclusive upon the Company (or any successor) and Executive.
(d) In the event it is later determined that to implement the objective and intent of this Section 11, a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or provided promptly by the Company to Executive, except to the extent the Company reasonably determines would result in the imposition of an excise tax under Section 409A of the Code.
12. Whistleblower Protections and Trade Secrets; Other Protected Activity. Notwithstanding anything to the contrary contained herein, nothing in this Agreement prohibits Executive from reporting possible violations of federal law or regulation to any United States governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes-Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation (including the right to receive an award for information provided to any such government agencies). Furthermore, in accordance with 18 U.S.C. § 1833, notwithstanding anything to the contrary in this Agreement: (i) Executive shall not be in breach of this Agreement, and shall not be held criminally or civilly liable under any federal or state trade secret law (A) for the disclosure of a trade secret that is made in confidence to a federal, state, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law, or (B) for the disclosure of a trade secret that is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal; and (ii) if Executive files a lawsuit for retaliation by the Company for reporting a suspected violation of law, Executive may disclose the trade secret to Executive’s attorney, and may use the trade secret information in the court proceeding, if Executive files any document containing the trade secret under seal, and does not disclose the trade secret, except pursuant to court order. In addition, nothing in this Agreement or the Restrictive Covenants shall prevent the Executive from (x) communicating directly with, cooperating with, or providing information to, or receiving financial awards from, any federal, state or local government agency, including without limitation the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the U.S. Department of Justice, the U.S. Equal Employment Opportunity Commission, or the U.S. National Labor Relations Board, without notifying or seeking permission from the Company, (y) exercising any rights the Executive may have under Section 7 of the U.S. National Labor Relations Act, such as the right to engage in concerted activity, including collective action or discussion concerning wages or working conditions, or (z) discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination based on a protected characteristic or any other conduct that the Executive has reason to believe is unlawful.
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13. General.
13.1 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of Missouri, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction.
To ensure the timely and economical resolution of disputes that may arise in connection with Executive’s employment with the Company, to the extent permitted by applicable law, Executive and the Company agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this Agreement, Executive’s employment, or the termination of Executive’s employment, including but not limited to statutory claims, shall be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law by final, binding and confidential arbitration, by a single neutral arbitrator in St. Louis, Missouri, chosen jointly by the parties, and will be conducted by JAMS, Inc. (“JAMS”) under the then applicable JAMS rules (which can be found at the following web address: https://www.jamsadr.com/rules-employment-arbitration/ or will be provided to Executive upon request without charge). If the parties cannot agree on an arbitrator, then JAMS shall appoint an arbitrator in accordance with JAMS rules. By agreeing to this arbitration procedure, both Executive and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company acknowledges that Executive will have the right to be represented by legal counsel at any arbitration proceeding. In addition, all claims, disputes, or causes of action under this paragraph, whether by Executive or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to award any or all remedies that Executive or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required of Executive if the dispute were filed in superior court (or the similar court of competent jurisdiction in the jurisdiction in which the arbitration will take place). Nothing in this Agreement is intended to prevent either Executive or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction.
13.2 Waiver of Jury Trial. AS A SPECIFICALLY BARGAINED FOR INDUCEMENT FOR EACH OF THE PARTIES HERETO TO ENTER INTO THIS AGREEMENT (AFTER HAVING THE OPPORTUNITY TO CONSULT WITH COUNSEL), EACH PARTY HERETO EXPRESSLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY LAWSUIT OR PROCEEDING RELATING TO OR ARISING IN ANY WAY FROM THIS AGREEMENT OR THE MATTERS CONTEMPLATED HEREBY.
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13.3 Amendment: Waiver. This Agreement may be amended, modified, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument executed by the parties hereto or, in the case of a waiver, by the party waiving compliance. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by either party of the breach of any term or covenant contained in this Agreement, whether by conduct or otherwise, in any one or more instances, shall be deemed to be, or construed as, a further or continuing waiver of any such breach, or a waiver of the breach of any other term or covenant contained in this Agreement.
13.4 Successors and Assigns. This Agreement shall be binding upon the Executive, without regard to the duration of the Executive’s employment by the Company or reasons for the cessation of such employment, and inure to the benefit of the Executive’s administrators, executors, heirs and assigns, although the obligations of the Executive are personal and may be performed only by the Executive. The Company may assign this Agreement and its rights and interests, together with its obligations, hereunder (a) in connection with any sale, transfer or other disposition of all or substantially all of its assets or business(es), whether by merger, consolidation or otherwise; (b) to any wholly owned subsidiary of the Company; or (c) as collateral to one or more lenders of the Company or its subsidiaries or affiliates. This Agreement shall also be binding upon and inure to the benefit of the Company and its subsidiaries, successors and assigns, and the rights of the Company hereunder are enforceable by its subsidiaries or affiliates, which are the intended third party beneficiaries hereof and no other third party beneficiary is so otherwise intended.
13.5 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature.
13.6 Severability. If any portion of this Agreement is held invalid or inoperative, the other portions of this Agreement shall be deemed valid and operative and, so far as is reasonable and possible, effect shall be given to the intent manifested by the portion held invalid or inoperative.
13.7 Rules of Construction. Each of the parties acknowledges that it has been represented by (or has had the opportunity to be represented by) independent counsel of its choice throughout all negotiations that have preceded the execution of this Agreement and that it has executed the same with consent and upon the advice of said independent counsel (if the party has elected to obtain such advice). Accordingly, any rule of law or any legal decision that would require interpretation of any ambiguities in this Agreement against any party that drafted it is of no application and is hereby expressly waived.
13.8 Entire Agreement. This Agreement (together with the documents referred to herein, including without limitation the Restrictive Covenants and any documents evidencing such Restrictive Covenants) supersedes all prior agreements between the parties with respect to its subject matter (including, without limitation, the Prior Agreement); and is a complete and exclusive statement of the terms of the agreement between the parties with respect thereto.
13.9 Withholding. The Company shall be entitled to withhold from any amounts payable under this Agreement any federal, state, local or foreign withholding or other taxes or charges which the Company is required to withhold. The Company shall be entitled to rely on the advice of counsel if any questions as to the amount or requirement of withholding shall arise.
13.10 Delivery by Facsimile or Email. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment or electronic signature tool such as DocuSign, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the
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original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms thereof and deliver them to all other parties (with any costs associated with such request and delivery to be assumed by the requesting party). No party hereto shall raise the use of a facsimile machine or email or electronic signature tool such as DocuSign to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email or electronic signature tool such as DocuSign as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.
13.11 Survival. The covenants, provisions, terms and conditions of Sections 6 and 7 and Sections 9 through 14 of this Agreement shall survive and continue in full force in accordance with their terms notwithstanding the termination of this Agreement and/or the termination of the Executive’s employment regardless of the circumstances of or reason for such termination.
13.12 Compensation Recovery Policy. The Executive acknowledges and agrees that, to the extent the Company adopts any clawback or similar policy pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act or otherwise, and any rules and regulations promulgated thereunder, the Executive shall take all action necessary or appropriate to comply with such policy (including, without limitation, entering into any further agreements, amendments or policies necessary or appropriate to implement and/or enforce such policy with respect to past, present and future compensation, as appropriate).
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
| COMPANY: | ||
| Advantage Solutions Inc. | ||
| By: | /s/ David Peacock | |
| Name: David Peacock | ||
| Title: Chief Executive Officer | ||
| EXECUTIVE | ||
| By: | /s/ Christopher Growe | |
| Name: Christopher Growe | ||
[Signature Page to Second Amended and Restated Employment Agreement]
EXHIBIT B
Form of General Release
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the “Agreement”) is entered into by and between Christopher Growe (“Employee”), on the one hand, and Advantage Solutions Inc., a Delaware corporation (the “Company”), on the other hand.
WHEREAS, Company employed Employee pursuant to that certain Second Amended and Restated Employment Agreement dated as [_____], 2026, as amended or otherwise modified from time to time (the “Employment Agreement”);
WHEREAS, Employee’s employment and all of Employee’s positions with Company and its subsidiaries and affiliates terminated effective [DATE] (the “Termination Date”);
WHEREAS, Employee seeks to obtain the payments and benefits provided under the Employment Agreement;
WHEREAS, Employee acknowledges that Employee has received all accrued wages, bonus, vacation/paid time-off and any other compensation due as of the Termination Date; provided, however, that Employee understands Employee may subsequently receive a separate check for reimbursement of reasonable business expenses in accordance with Company policies; and
WHEREAS, capitalized terms used, but not defined in this Agreement, shall have the meanings ascribed to such terms in the Employment Agreement.
NOW THEREFORE, in an effort to put any and all disputes behind the parties, for and in consideration of the mutual covenants contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties have agreed to settle finally and forever any and all claims between them of any nature whatsoever relating to, or arising from Employee’s employment by Company and/or the termination of that employment.
1. Effective Date. This Agreement shall not become effective unless and until (i) the Company has received this Agreement signed by Employee without modification; and (ii) the seven (7)-day revocation period referenced herein has expired and Employee has not revoked Employee’s assent to this Agreement, and shall thereafter be effective as of the date such revocation period terminates without exercise (the “Effective Date”). In the event the Effective Date does not occur within thirty (30) days following the Termination Date, the Executive shall not be eligible to receive any of the severance payments or benefits under the Employment Agreement.
2. Severance Pay and Benefits. Provided that (i) the Effective Date has occurred within thirty (30) days following the Termination Date (ii) Employee has not revoked Employee’s assent to this Agreement; and (iii) Employee has returned all Company property (including without limitation any and all confidential and proprietary information) issued to Employee in connection with Employee’s employment with the Company as required by Section 6.9 of the Employment Agreement, the Company shall provide Employee with the severance payments and benefits specified in Section [__] of the Employment Agreement, payable at the times set forth in, and subject to the terms and conditions of, the
Ex. B-1
Employment Agreement.1 In addition, to the extent not already paid, and subject to the terms and conditions of the Employment Agreement, the Company shall pay or provide to Employee the Accrued Rights and any Accrued Bonus described in Section 6.1(b) of the Employment Agreement, subject to and in accordance with the terms thereof.
2.1 To the extent the payments set forth in Section 2 and its subsections paid by the Company to Employee are considered taxable income, they will be reported on a Form W-2 issued to Employee for the applicable year.
2.2 In the event the Company, after reasonable investigation, determines that Employee has materially breached Employee’s obligations under (i) this Agreement or the Employment Agreement; or (ii) the Restrictive Covenants; if applicable, Employee’s eligibility for the Severance Pay and Severance Benefits shall cease immediately. Moreover, from the date of the breach, the Company shall be entitled to recover payments in excess of one thousand dollars ($1,000.00) made to the Employee for Severance Pay under this Agreement.
2.3 Employee acknowledges that the foregoing severance pay and benefits exceed any earned wages or anything else of value otherwise owed to Employee by the Company.
3. General Release of Claims.
3.1 Except for the obligations arising out of this Agreement and any claims that cannot be waived as a matter of law, in consideration of this Agreement and the other good and valuable consideration provided to Employee pursuant hereto, Employee, for Employee and on behalf of each and all of Employee’s respective legal predecessors, successors, assigns, fiduciaries, heirs, parents, spouses, companies and affiliates (all referred to as the “Employee Releasors”) hereby irrevocably and unconditionally releases, and fully and forever discharges and absolves Company, its parents, subsidiaries and affiliates (“Advantage Companies”) and each of their respective partners, officers, directors, managers, shareholders, members, agents, employees, heirs, divisions, attorneys, trustees, administrators, executors, representatives, predecessors, successors, assigns, related organizations and related employee benefit plans (collectively, the “Company Releasees”), of, from and for any and all claims, rights, causes of action, demands, damages, rights, remedies and liabilities of whatsoever kind or character, in law or equity, known or unknown, suspected or unsuspected, past, present, or future, that the Employee Releasors have ever had, may now have, or may later assert against the Company Releasees whether or not arising out of or related to Employee’s employment with Company or the termination of Employee’s employment by Company (hereinafter referred to as “Employee’s Released Claims”), from the beginning of time up to and including the Effective Date, including without limitation, any claims, debts, obligations, and causes of action of any kind arising under any (i) contract including but not limited to the Employment Agreement and any bonus or other compensation plan, (ii) any common law (including but not limited to any tort claims) or (iii) any federal, state or local statutory law including, without limitation, any law which prohibits discrimination or harassment on the basis of sex, race, national origin, veteran status, age, immigration or marital status, sexual orientation, disability, or on any other basis, including without limitation, those arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, any state or local wage and hour laws (to the fullest extent permitted by law), and/or any state or local laws which prohibit discrimination or harassment of any kind.
| 1 | Note to Draft: Actual severance payments and benefits to be included here depending on circumstances of termination based on applicable section of the Employment Agreement, including if the termination is or could qualify as a Change in Control Qualifying Termination. |
Ex. B-2
3.2 Employee represents and warrants that Employee has brought no complaint, claim, charge, action or proceeding against any of the Advantage Companies in any jurisdiction or forum, nor will Employee, from the Effective Date forward, encourage any other person or persons in doing so. Employee covenants and agrees never to pursue any judicial proceedings against the Company Releasees asserting any of the Employee’s Released Claims and (notwithstanding the above representation and warranty) to dismiss forthwith any such proceedings initiated to date. Employee shall not bring any complaint, claim, charge, action or proceeding to challenge the validity of this Agreement or encourage any other person or persons in doing so. Notwithstanding the foregoing, nothing herein shall prevent Employee from filing or from cooperating in any charge filed with a governmental agency; provided, however, Employee acknowledges and agrees that Employee waiving the right to any monetary recovery should any agency (such as the Equal Employment Opportunity Commission or any similar state or local agency) pursue any claim for Employee’s benefit. Further, nothing herein shall prevent Employee from challenging the validity of the release of Employee’s claims, if any, under the Age Discrimination in Employment Act.
3.3 Except with respect to a breach of obligations arising out of this Agreement, if any, and to the fullest extent permitted by law, execution of this Agreement by the parties operates as a complete bar and defense against any and all of Employee’s Released Claims.
3.4 Section 3.1 does not release claims that cannot be released as a matter of law, including, but not limited to, Executive’s right to report possible violations of federal law or regulation to any governmental agency or entity in accordance with the provisions of and rules promulgated under Section 21F of the Securities Exchange Act of 1934 or Section 806 of the Sarbanes Oxley Act of 2002, or any other whistleblower protection provisions of state or federal law or regulation and any right to receive an award for information provided thereunder. Nothing in Section 3.1 waives (i) Executive’s rights to indemnification or any payments under any fiduciary insurance policy, if any, provided by any act or agreement of the Company, state or federal law or policy of insurance, or any other indemnification rights to which Executive may be entitled under the organizational documents, by contract, as a matter of law, or otherwise, or under any power that the Company may have to indemnify Executive or hold Executive harmless; (ii) any vested rights Executive (and/or his dependents) may have under the employee benefit plans, programs, policies or arrangements of the Company and its affiliates; (iii) claims for unemployment compensation or any state disability insurance benefits pursuant to the terms of applicable state law; (iv) claims to continued participation in certain of the Company’s group benefit plans pursuant to the terms and conditions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended; (v) claims for breach of any of the Company’s continuing obligations to Executive under the Employment Agreement; and (vi) any right that may not be waived by private agreement.
4. Waiver of Unknown Claims. Employee expressly acknowledges that Employee has read and understood the following language contained in Section 1542 of the California Civil Code:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
But for the obligations arising from this Agreement, having reviewed this provision, Employee nevertheless hereby voluntarily waives and relinquishes any and all rights or benefits Employee may have under section 1542, or any other statutory or non-statutory law of similar effect. Thus, Employee expressly acknowledges this Agreement is intended to and does include in its effect, without limitation, all claims Employee does not know or suspect to exist in Employee’s favor at the time of signing this Agreement, and that this
Ex. B-3
Agreement extinguishes any such claims. Employee warrants that Employee has consulted counsel and/or has had the opportunity to consult with counsel about this Agreement and specifically about the waiver of section 1542 (or other state law of similar effect) and that Employee understands the section 1542 (or other state law of similar effect) waiver and freely and knowingly enters into this Agreement. Employee acknowledges that Employee may later discover facts different from or in addition to those Employee now knows or believes to be true regarding the matters released or described in this Agreement, and even so, Employee agrees that the releases contained in this Agreement shall remain effective in all respects notwithstanding any later discovery of any different or additional facts.
5. No Admissions. By signing this Agreement, the Company does not admit to any wrongdoing or legal violation by the Company or the Company Releasees.
6. Cooperation. Employee hereby agrees to cooperate with and provide requested assistance to Company with respect to any claim, cause of action, litigation, or other matter involving the Company, in which: (a) Employee (i) has significant knowledge, or (ii) was intimately involved, during the course of Employee’s employment, and (b) such requested assistance and/or cooperation is reasonably necessary and appropriate. For the avoidance of doubt, nothing in this Section 6 is intended to require Employee to provide anything but truthful and accurate information or testimony in the event Employee is asked for information or called to testify.
7. Return of Information and Property. Employee represents that as of the date of Employee’s execution of this Agreement, Employee has returned to the Company, all Company property, equipment, confidential information, records, electronically stored data and other materials relating to Employee’s employment, including tools, documents, papers, computer software, passwords and other identification materials, ID cards, keys, credit cards, personal computers, tablets, cell phones, and/or instruction manuals. This obligation applies to all materials relating to the affairs of the Company or any of its customers, clients, vendors, employees, or agents that may be in Employee’s possession or control. All such Company property must be returned by Employee in order for Employee to commence receiving the severance pay and benefits provided under Section 2 hereof.
8. Compliance with Prior Restrictive Covenants. Employee hereby reaffirms Employee’s obligations under the Restrictive Covenants.
9. Remedy for Breach.
(a) Employee acknowledges that Employee’s breach of the obligations contained in this Agreement would cause the Company irreparable harm that could not be reasonably or adequately compensated in damages in an action at law. If Employee breaches or threatens to breach any of the provisions contained in this Agreement, the Company shall be entitled to an injunction, without bond, restraining Employee from committing such breach. The Company’s right to exercise its option to obtain an injunction shall not limit its right to any other remedies for breach of any provision of this Agreement.
(b) Employee agrees that Employee’s obligations under this Agreement shall be absolute and unconditional.
(c) The foregoing shall in no way limit the Company’s rights under Section 2.2 of this Agreement.
10. Confidentiality. Employee agrees the terms and conditions of this Agreement shall be confidential and shall not be disclosed except (as applicable) (i) as required by subpoena or otherwise by law; (ii) to an accountant or tax preparer for the purposes of preparing tax returns only; (iii) to Employee’s attorney; or (iv) to Employee’s spouse; provided, however, that Employee advises the person receiving
Ex. B-4
such information of the confidentiality obligations required as to such information, and such person commits to keep such information confidential on terms no less stringent than the terms of this Agreement. Further, if Employee receives a subpoena, court order, or other compulsory process requiring disclosure of the terms of this Agreement, Employee shall provide written notice to the Company so as to afford the Company a reasonable opportunity to seek a protective order, to the fullest extent permitted by law. If application for a protective order is made promptly by the Company, Employee shall not disclose the terms of this Agreement prior to receiving a court order or consent of the Company.
11. Employee Representations. Employee represents and agrees that Employee (a) has suffered no injuries or damages in the course and scope of Employee’s employment with the Company that Employee did not already report to the Company; (b) fully understands all terms of this Agreement and is signing it voluntarily and with full knowledge of its significance; and (c) is not relying and has not relied upon any representation or statement made by the Company or its agents, representatives or attorneys, with regard to the subject matter, basis or effect of this Agreement or otherwise, other than as specifically stated in this Agreement.
12. Notice. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) by hand (with written confirmation of receipt), (b) by registered mail, return receipt requested, or (c) by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate address set forth below (or to such other address as a party may designate by notice given in accordance herewith).
(a) For notices and communications to the Company:
Advantage Sales & Marketing LLC
7676 Forsyth Boulevard, Fifth Floor
St. Louis, Missouri 63105
Attention: Chief Legal Officer
(b) For notices and communications to the Executive, to Executive’s most recent address on file with the Company. Any party hereto may, by notice to the other, change its address for receipt of notices hereunder.
13. No Modification. No modification to any term or provision contained in this Agreement shall be binding upon any party unless made in writing and signed by both parties.
14. Severability. If any provision of this Agreement is held to be unenforceable for any reason, all of the remaining parts of the Agreement shall remain in full force and effect.
15. No Assignment. Employee has not assigned any portion of the Employee’s Released Claims to any third party.
16. Governing Law; Arbitration. This Agreement shall be subject to the provisions of Section 13.1 of the Employment Agreement.
17. Entire Agreement. This Agreement and the Employment Agreement (together with the documents referred to herein and therein, including without limitation the Restrictive Covenants) supersede all prior agreements between the parties with respect to their subject matter, and are a complete and exclusive statement of the terms of the agreement between the parties with respect hereto and thereto.
18. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature.
Ex. B-5
19. Successors and Assigns. This Agreement shall bind and shall inure to the benefit of the successors and assigns of each party. With respect to Employee, this Agreement shall also bind and inure to the benefit of Employee’s heirs and assigns.
20. Delivery by Facsimile or Email. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment or electronic signature tool such as DocuSign, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms thereof and deliver them to all other parties (with any costs associated with such request and delivery to be assumed by the requesting party). No party hereto shall raise the use of a facsimile machine or email or electronic signature tool such as DocuSign to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email or electronic signature tool such as DocuSign as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.
21. ADEA Provisions and Notification. In compliance with the requirements of the Age Discrimination in Employment Act (ADEA), as amended by the Older Workers’ Benefit Protection Act of 1990, Employee acknowledges by Employee’s signature below that, with respect to the rights and claims waived and released herein under the ADEA, Employee has read and understands this Agreement and specifically understands the following:
21.1 That Employee is advised to consult with an attorney before signing this Agreement;
21.2 That Employee is releasing the Company Releasees from, among other things, any claims which Employee might have against any of them pursuant to the ADEA as amended;
21.3 That the releases contained in this Agreement do not cover any rights or claims that may arise after the date on which Employee executed this Agreement;
21.4 That Employee has been given a period of twenty-one (21) days in which to consider this Agreement but if Employee elects to forego any portion of the twenty-one (21) day period Employee understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one (21) day period; and
21.5 That Employee may revoke this Agreement during the seven (7) day period following the date of Employee’s execution of this Agreement by giving written notice of said revocation in accordance with the notice provision of this Agreement, and that this Agreement will not become binding and effective until the seven (7) day revocation period has expired.
| Dated: , 20__ |
By: | |||||
| Name: Christopher Growe | ||||||
| Advantage Solutions Inc. | ||||||
| Dated: , 20__ |
By: | |||||
| Name: | ||||||
| Title: | ||||||
Ex. B-6
Exhibit 10.3
Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. Information that was omitted has been noted in this document with a placeholder identified by the mark “[***]”.
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October 30, 2026
Jeff Harsh
[***]
You and Advantage Sales & Marketing LLC, d/b/a Advantage Solutions (the “Company”), are parties to that certain employment offer letter dated August 4, 2025 (the “Prior Agreement”). You and the Company desire to amend and restate the Prior Agreement on the terms and conditions set forth below, effective as of the date set forth above (the “Effective Date”).
| • | Position |
You will continue to serve in the position of Chief Operating Officer, Branded Services of Advantage Solutions Inc. (“Parent”) and its direct and indirect subsidiaries (the “Company Group”), and will continue to report directly to Dave Peacock, Chief Executive Officer. Your principal place of employment will be your home office in Hershey, Pennsylvania or such other place as reasonably determined by the Company in accordance with this letter agreement, and from time to time you may be required to travel to other locations in the performance of your responsibilities under this letter agreement.
You will devote substantially all of your business judgment, knowledge and skill to the performance of your duties with the Company Group, provided, however, that nothing herein or otherwise shall prevent you from (i) serving on the boards of directors of non-profit organizations, (ii) with written consent from the Company (not to be unreasonably withheld, delayed or conditioned), advising and serving on the boards of directors of non-competitive companies, (iii) participating in charitable, civic, educational, professional, community or industry affairs, and (iv) managing your personal investments and legal affairs.
| • | Compensation & Benefits |
| • | Base Salary. You will continue to receive a base salary of USD $40,000 per month (or $480,000 annualized); which shall be paid in accordance with the Company’s bi-weekly payroll calendar. The base salary as determined herein from time to time shall constitute “Base Salary” for purposes of this letter agreement. |
| • | Benefit Plans. During your employment you will be eligible to participate in the Company’s benefit programs including the Company’s medical, dental, vision, 401(k), life insurance, executive physical plan, short-term disability, and long-term disability plans. The existence and terms of any such benefit plans are subject to change, and your eligibility for and participation in such plans are subject to the terms and conditions contained in those plans. |
7676 Forsyth Boulevard
Fifth Floor
St. Louis, MO 63105
YourADV.com
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| • | Bonus Program. You are eligible to participate in the Company’s Bonus Program (the “Bonus Program”) applicable to your position, subject to the terms and conditions of the Bonus Program. Your target bonus percentage is 80% of your Base Salary (your “Target Bonus”). The actual bonus amount each year is subject to the achievement of Company objectives, your calendar year bonus eligible earnings, and subject to the terms and conditions of the Bonus Program. In addition, except as set forth herein, there will be no bonus payment awarded, including any partial or prorated bonus, if you depart from the Company for any reason prior to the bonus payment date. Further, the Bonus Program is subject to modification and/or cancellation at any time. |
| • | Equity Grant. Subject to (1) you remaining in good standing, and (2) the discretion and approval of the Human Capital Committee of the Board of Directors of Parent, you will be eligible for an equity grant of up to 125% of your annual base salary. The type of equity awarded as well as the vesting terms will be outlined in future equity documentation. |
In addition, you were previously awarded an equity grant of $250,000 in the form of restricted stock units (RSUs) following your commencement of employment with the Company. This RSU grant will vest on a 3-year ratable schedule on each anniversary date of your award.
| • | Vacation and Other Time Away. In this role, you are eligible for vacation and floating holidays under the Company’s Flexible, No Accrual Vacation and Floating Holiday policy. Your eligibility for other types of time away (such as sick time and leaves of absence) shall be in accordance with Company policy, subject to applicable law. |
| • | Expenses. You will be reimbursed in accordance with the Company’s expense reimbursement policy for all out-of-pocket business, travel and entertainment expenses incurred and paid by you during your employment or in connection with the performance of your duties hereunder. |
| • | At Will Employment; Termination. Employment with the Company is “at will”, which means that either you or the Company can end the employment relationship at any time, with or without Cause (as defined below), subject to the provisions hereof. No one at the Company has the authority to promise you anything different, unless in writing and signed by the Company’s Chief Executive Officer. |
| 7676 Forsyth Boulevard Fifth Floor St. Louis, MO 63105
YourADV.com |
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| • | Termination of Employment. In the event of your termination of employment for any reason, you will be entitled to receive (i) any unpaid Base Salary through the date of termination, (ii) other than in the case of a termination of employment by the Company for Cause or by you without Good Reason, any earned but unpaid annual bonus under the Bonus Program with respect to a performance period ending on or prior to the date of termination, payable at the same time as it would have been paid had you not undergone a termination of employment, (iii) reimbursement for any unreimbursed business expenses incurred through the date of termination, and (iv) all other payments or benefits to which you are entitled under the terms of any applicable compensation or equity arrangement or employee benefit plan or program of the Company Group (the “Accrued Rights”). |
| • | Severance – Termination Other Than a Change in Control Qualifying Termination. If your employment is terminated by the Company without Cause or by you with Good Reason (as defined below), and such termination is not a Change in Control Qualifying Termination (as defined below), then subject to your compliance with this letter and any restrictive covenant obligations, and the effectiveness of your release (as described below), you will be entitled to receive the following severance benefits (the “Non-CIC Severance Benefits”): |
| • | Your Base Salary for a period of twelve (12) months (at the highest rate in effect during the twelve (12)-month period preceding the date of termination and, in the case of a diminution in your Base Salary which would give rise to Good Reason for your resignation, in no event less than the Base Salary in effect prior to such diminution), payable in equal installments over the twelve (12) month period following the date of termination. Any payments by the Company under this paragraph will commence on the First Payment Date (as defined below) and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above; and |
| 7676 Forsyth Boulevard Fifth Floor St. Louis, MO 63105
YourADV.com |
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| • | Provided that you promptly enroll in COBRA after receiving your COBRA options, provide notice to the Company of your enrollment in COBRA, and make the required employee-portion of the COBRA premium, then the Company will pay the employer portion and the administrative fee of the monthly COBRA premium (at the rate in effect at the time of termination) to the COBRA administrator for up to twelve (12) months (provided, however, that if you discontinue COBRA coverage or if you become covered by the health insurance policy of any subsequent employment, the continuation of such health insurance coverage and premium subsidy by the Company shall cease). Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay you on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Any payments by the Company under this paragraph will commence on the First Payment Date and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above. |
| • | “Cause” means one or more of the following apply to your termination: (1) you engaged in dishonesty or gross negligence in connection with your job duties, which, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such dishonesty or gross negligence is received by you from the Company, (2) you willfully or continually failed to perform your job duties, which, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such failure is received by you from the Company, (3) you breached a fiduciary duty including, without limitation the duty of loyalty to the Company, which breach, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such breach is received by you from the Company, (4) you engaged in intentional misconduct in connection with your job duties, which misconduct, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such misconduct is received by you from the Company, (5) you violated a material written policy of the Company, including, without limitation, policies pertaining to harassment, discrimination or drug and alcohol use which violation, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such violation is |
| 7676 Forsyth Boulevard Fifth Floor St. Louis, MO 63105
YourADV.com |
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| received by you from the Company, (6) you are convicted or plead guilty to a felony, or a misdemeanor involving moral turpitude, or (7) you materially breached a restrictive covenant with the Company, which breach, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such breach is received by you from the Company. For the avoidance of doubt, “Cause” does not include any failure to achieve any performance targets, whether relating to you, the Company or its broader group, or otherwise. |
| • | “Change in Control” has the meaning set forth in Exhibit A. |
| • | “Change in Control Qualifying Termination” means (1) a termination of your employment by the Company without Cause or by you for Good Reason occurring on or following the date of a Change in Control but prior to the date that is twenty-four (24) months following such Change in Control, or (2) a termination of your employment by the Company without Cause or by you for Good Reason that occurs (A) following the execution of a definitive agreement that, if the transaction(s) contemplated thereunder are consummated, would result in a Change in Control (a “Change in Control Agreement”), (B) (1) in connection with or as a result of the potential Change in Control transaction (as determined by the Company in good faith) and (2) other than a termination or resignation for reasons unrelated to the potential Change in Control transaction (including, without limitation, for purposes of this clause (2), due to a reduction in force, termination due to poor performance, restructuring, position elimination, organizational structure redesign or leadership change or consolidation, in each case unrelated to the potential Change in Control transaction), and (C) within six (6) months prior to the date of the consummation of a Change in Control (whether or not pursuant to such Change in Control Agreement). For the avoidance of doubt, with respect to clause (2) above, if a Change in Control does not occur within six (6) months following a termination of your employment by the Company without Cause or by you for Good Reason, then such termination will cease to be a Change in Control Qualifying Termination for purposes of this letter agreement, you will not be entitled to any CIC Severance Benefits (as defined below), and you shall instead only be eligible to receive the Non-CIC Severance Benefits. |
| 7676 Forsyth Boulevard Fifth Floor St. Louis, MO 63105
YourADV.com |
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| • | “Good Reason” means termination of your employment for any of the following: (a) a reduction in the Base Salary or Target Bonus, other than a reduction of less than 10% of Base Salary (and thereby the Target Bonus) made as part of a reduction in the Base Salary or Target Bonus of all executive officers of the Company (and for the avoidance of doubt, following a Change in Control, the reference to executive officers of the Company shall include, without limitation, the executive officers of the ultimate parent entity of the Company (or its successor)); (b) the prohibition on you from working remotely until your relocation has occurred, or, following your relocation, the relocation by the Company, to a location that is more than fifty (50) miles from your then current principal place of employment; (c) any material breach by the Company of this letter agreement or any other agreement under which you provide services to the Company; or (d) following a Change in Control, the material diminution or other reduction in your duties and responsibilities or your title (including, without limitation, following a Change in Control, your ceasing to serve as a chief operating officer of the ultimate parent entity of the Company (or its successor) or ceasing to report to the chief executive officer of the ultimate parent entity of the Company (or its successor)). Notwithstanding the foregoing, you shall not have “Good Reason” to terminate your employment in connection with any of the foregoing events unless (1) you provide the Company prior written notice of such termination, and such notice is provided within ninety (90) days of the initial occurrence of the event constituting Good Reason; (2) such termination is conditioned upon the Company failing to cure the event constituting Good Reason within the thirty (30)-day period following provision of notice; and (3) the Company fails to cure such event constituting Good Reason within such thirty (30)-day period. |
| • | Severance – Change in Control Qualifying Termination. If your employment terminates by reason of a Change in Control Qualifying Termination, then subject to your compliance with this letter agreement and any restrictive covenant obligations, and the effectiveness of your release, in lieu of the Non-CIC Severance Benefits, you will be entitled to receive the following severance benefits (the “CIC Severance Benefits”) (for the avoidance of doubt, in the event that your termination without Cause or resignation for Good Reason occurs prior to a Change in Control but ultimately qualifies as a Change in Control Qualifying Termination, the CIC Severance Benefits payable below shall be reduced by any Non-CIC Severance Benefits that you previously received as a result of such termination or resignation): |
| 7676 Forsyth Boulevard Fifth Floor St. Louis, MO 63105
YourADV.com |
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| • | Your Base Salary for a period of eighteen (18) months (at the highest rate in effect during the twelve (12)-month period preceding the date of termination and, in the case of a diminution in your Base Salary which would give rise to Good Reason for your resignation, in no event less than the Base Salary in effect prior to such diminution), payable in equal installments over the eighteen (18) month period following the date of termination. Any payments by the Company under this paragraph will commence on the First Payment Date and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above; |
| • | A lump sum payment equal to one and one-half (1.5) times your Target Bonus then in effect at the time of such termination (or in the case of a diminution in your Target Bonus which would give rise to Good Reason for your resignation, the Target Bonus in effect prior to such diminution). Such payment will be made on the later of (1) the First Payment Date, or (2) the date of the Change in Control; |
| • | Provided that you promptly enroll in COBRA after receiving your COBRA options, provide notice to the Company of your enrollment in COBRA, and make the required employee-portion of the COBRA premium, then the Company will pay the employer portion and the administrative fee of the monthly COBRA premium to the COBRA administrator for up to eighteen (18) months (provided, however, that if you discontinue COBRA coverage or if you become covered by the health insurance policy of any subsequent employment, the continuation of such health insurance coverage and premium subsidy by the Company shall cease). Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay you on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Any payments by the Company under this paragraph will commence on the First Payment Date and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above; and |
| 7676 Forsyth Boulevard Fifth Floor St. Louis, MO 63105
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| • | With respect to each outstanding equity award held by you, you shall be eligible to vest 100% of your then outstanding equity awards the vesting of which is time-based effective as of the date of your termination of employment, which vesting shall occur effective as of the later of (1) the effective date of your release or (2) the date of a Change in Control; provided, however, that with respect to equity awards granted to you prior to the Effective Date (the “Existing Equity Awards”), the foregoing acceleration shall only apply to the extent your Change in Control Qualifying Termination occurs pursuant to clause (1) of the definition of such term and during the period commencing on or after the date of a Change in Control and ending twenty-four (24) months thereafter. To the extent any equity awards are subject to performance-based vesting, the accelerated vesting of such equity awards that are performance-based shall be governed by the applicable equity plan and agreement pursuant to which they were granted. Further, the post-termination exercise period for any vested stock options held by you as of the date of your termination and that are not Existing Equity Awards shall be extended through the earlier to occur of (x) the eighteen (18) month anniversary of your date of termination and (y) the expiration date of such stock options. The foregoing provisions are hereby deemed to be a part of each equity award and to supersede any less favorable provision in any agreement or plan regarding such equity award (and, for the avoidance of doubt, if any equity award is subject to more favorable vesting pursuant to any agreement or plan regarding such equity award, such more favorable provisions shall continue to apply and shall not be limited by this paragraph). For the avoidance of doubt, if your termination without Cause or resignation for Good Reason occurs prior to a Change in Control but under circumstances that mean such termination or resignation could constitute a Change in Control Qualifying Termination, then any unvested portion of your outstanding equity awards that are eligible for accelerated vesting under this paragraph will remain outstanding for six (6) months or until the occurrence of a Change in Control (whichever is earlier) so that any vesting acceleration and extension benefits provided under this paragraph can be provided if a Change in Control occurs within six (6) months following such termination and you experience a Change in Control Qualifying Termination (provided that in no event will any awards remain outstanding beyond their maximum term or expiration date). The Company shall in good faith consider an amendment to your Existing Equity Awards at the time of your termination without Cause or resignation for Good Reason occurring prior to a Change in Control to provide that such awards shall be eligible for the same acceleration and extension treatment if such termination ultimately qualifies as a Change in Control Qualifying Termination. |
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| • | Release. In addition to the foregoing, in order to be eligible for the Non-CIC Severance Benefits or the CIC Severance Benefits set forth above you must execute, deliver to the Company, and not revoke, a full and general release in the form substantially attached hereto as Exhibit B, which release must become effective within sixty (60) days following your termination date, and remain in compliance with any and all restrictive covenants with the Company. In the event that you materially breach your obligations hereunder or under any restrictive covenants (including the CPPSA (as defined below)), any and all severance payments or benefits provided for in the paragraphs above shall cease immediately. |
| • | Other Terminations. If your employment ends for any other reason, including, without limitation, if you elect to end your employment with the Company without Good Reason, die or become disabled and unable to perform the duties of your position, or are terminated with Cause, you will not be eligible for Non-CIC Severance Benefits or CIC Severance Benefits. |
| • | Section 409A. The parties hereto acknowledge and agree that this letter agreement and the payments and benefits herein, are intended to comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and shall be interpreted accordingly. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Notwithstanding anything in this letter agreement to the contrary, any compensation or benefits payable under this letter agreement that is designated under this letter agreement as payable upon your termination of employment shall be payable only upon your “separation from service” with the Company Group within the meaning of Section 409A (a “Separation from Service”) and, except as provided below, any cash severance installments shall not commence until the sixtieth (60th) day following your Separation from Service (the “First Payment Date”). Any installment payments that would have been made to you during the sixty (60) day period immediately following your Separation from Service but for the preceding sentence shall be paid to you on the First Payment Date and the remaining payments shall be made as provided in this letter agreement. If you are a “specified employee” (within the meaning of Code Section 409A) as of your Separation |
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| from Service, payment of any amounts under this letter agreement (or under any severance arrangement pursuant to this letter agreement) which constitute the payment of nonqualified deferred compensation (within the meaning of Code Section 409A) and which would otherwise be paid upon your separation from service shall not be paid before the date that is six (6) months after the date of your separation from service and any amounts that cannot be paid by reason of this limitation shall be accumulated and paid on the first day of the seventh (7th) month following the date of your separation from service (within the meaning of Code Section 409A). To the extent required by Section 409A of the Code, each reimbursement or in-kind benefit provided under this letter agreement shall be provided in accordance with the following: (a) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (b) any reimbursement of an eligible expense shall be paid to you on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (c) any right to reimbursements or in-kind benefits under this letter agreement shall not be subject to liquidation or exchange for another benefit. |
| • | Parachute Payments. |
| • | Notwithstanding any other provisions of this letter agreement or any employee benefit plans, programs or arrangements, in the event that any payment or benefit by the Company or otherwise to or for the benefit of you, whether paid or payable or distributed or distributable pursuant to the terms of this letter agreement or otherwise (all such payments and benefits being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (in the order provided in the following paragraph below) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). |
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| • | The Total Payments shall be reduced in the following order: (i) reduction on a pro rata basis of any cash severance payments that are exempt from Section 409A of the Code, (ii) reduction on a pro rata basis of any non cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to you on a pro rata basis or such other manner that complies with Section 409A of the Code; provided, that in case of subclauses (ii), (iii) and (iv), any reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on you under Section 409A of the Code, and that results in the maximum economic benefit to you on an after-tax basis. |
| • | The Company will select an advisor with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax prior to the date of the applicable change in ownership or control (the “Independent Advisor”) to make determinations regarding the application of this provision concerning parachute payments. The Independent Advisor shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within fifteen (15) business days following the date on which your right to the Total Payments is triggered, if applicable, or such other time as requested by you (provided, that you reasonably believe that any of the Total Payments may be subject to the Excise Tax) or the Company. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. Any good faith determinations of the Independent Advisor made hereunder shall be final, binding and conclusive upon the Company (and any successor) and you. |
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| • | In the event it is later determined that to implement the objective and intent of this provision concerning parachute payments, a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or provided promptly by the Company to you, except to the extent the Company reasonably determines would result in the imposition of an excise tax under Section 409A of the Code. |
| • | Other Important Information |
| • | No Other Representations. You hereby reaffirm the representations and covenants in this letter and in that certain Confidentiality, Property Protection, and Non-Solicitation Agreement between you and the Company (the “CPPSA”) and you represent that no one at the Company has made any other promises or statements upon which you have relied that are different from those in this letter. This letter (together with the documents referred to herein, including without limitation the CPPSA) supersedes all prior agreements between the parties with respect to its subject matter (including, without limitation, the Prior Agreement); and is a complete and exclusive statement of the terms of the agreement between the parties with respect thereto. |
| • | Policies & Procedures. Your continued employment with the Company is subject to its policies and procedures including, without limitation, those set forth in the Associate Handbook and Code of Business Conduct & Ethics, copies of which were made available to you as part of the on-boarding process and during employment. You can also find legally required notices (such as those required under state or local law) through the Policies & Procedures site which can be found on the Company’s internal website, www.connectshub.com. You agree to comply with all such policies and procedures (and any changes thereto). |
| • | Terms Subject to Change. The terms and conditions of employment (including without limitation, compensation, benefits, supervisor, work location, and duties) are subject to change at any time with or without notice or cause, as permitted by law. |
| • | No Prior Obligations in Conflict with Employment with the Company. You represent and agree that: (a) your employment with the Company and compliance with the terms and conditions of such employment will not conflict with or result in the breach by you of any agreement to which you are a party or by which you may be bound, (b) you have not, and in connection with your employment with the Company will not, violate any non-competition, non-solicitation or other similar covenant or agreement by which you are or may be bound, and (c) in connection with your employment with the Company you will not use any confidential or proprietary information you may have obtained in connection with employment with any prior employer (other than the Company and its affiliated entities prior to the date of your employment with the Company). |
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| • | Reasonable Accommodations. Employment with the Company is contingent on an individual’s being able to perform the essential functions of the job with or without a reasonable accommodation. The Company is committed to providing such reasonable accommodation as required by law. If you believe you need an accommodation to perform the essential duties of the position you are being offered or to enjoy the benefits or privileges of employment, you are encouraged to contact the Company’s Workplace Accommodations Department at 888.985.0349 or leaveandaccommodations@youradv.net to request an accommodation, which will be evaluated on an individualized basis through an interactive process. |
| • | Arbitration. To ensure the timely and economical resolution of disputes that may arise in connection with your employment with the Company, to the extent permitted by applicable law, you and the Company agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this letter agreement, your employment, or the termination of your employment, including but not limited to statutory claims, shall be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law by final, binding and confidential arbitration, by a single neutral arbitrator in Pennsylvania, chosen jointly by the parties, and will be conducted by JAMS, Inc. (“JAMS”) under the then applicable JAMS rules (which can be found at the following web address: https://www.jamsadr.com/rules-employment-arbitration/ or will be provided to you upon request without charge). If the parties cannot agree on an arbitrator, then JAMS shall appoint an arbitrator in accordance with JAMS rules. By agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company acknowledges that you will have the right to be represented by legal counsel at any arbitration proceeding. In addition, all claims, disputes, or causes of action under this paragraph, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The |
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| arbitrator may not consolidate the claims of more than one person or entity, and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required of you if the dispute were filed in superior court (or the similar court of competent jurisdiction in the jurisdiction in which the arbitration will take place). Nothing in this letter agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction. |
| • | Governing Law; No Modification. This letter agreement is a binding contract and may not be modified or amended except by a written agreement, signed by the Company and by you. This letter agreement shall be governed by the laws of the state in which you reside on the date this letter agreement becomes effective, without regard to any conflicts of laws. |
| • | Notices. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) by hand (with written confirmation of receipt), (b) by registered mail, return receipt requested, or (c) by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate address set forth below (or to such other address as a party may designate by notice given in accordance herewith). Notices and communications to the Company shall be addressed to the Chief Legal Officer at the Company’s principal executive offices. Notices and communications to you shall be addressed to your most recent address on file with the Company. Any party hereto may, by notice to the other, change its address for receipt of notices hereunder. |
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| • | Counterparts. This letter may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature. |
| • | Withholding and other Deductions. All compensation payable to you hereunder shall be subject to such deductions as the Company is from time to time required to make pursuant to law, governmental regulation or order. |
| • | Successors and Assigns. This letter shall be binding upon you, without regard to the duration of your employment by the Company or reasons for the cessation of such employment, and inure to the benefit of your administrators, executors, heirs and assigns, although your obligations are personal and may be performed only by you. The Company may assign this letter and its rights and interests, together with its obligations, hereunder (a) in connection with any sale, transfer or other disposition of all or substantially all of its assets or business(es), whether by merger, consolidation or otherwise; or (b) to any wholly owned subsidiary of the Company or as collateral to one or more lenders of the Company or its subsidiaries or affiliates. This letter shall also be binding upon and inure to the benefit of the Company and its subsidiaries, successors and assigns, and the rights of the Company hereunder are enforceable by its subsidiaries or affiliates, which are the intended third party beneficiaries hereof and no other third party beneficiary is so otherwise intended. |
| • | Severability. If any portion of this letter is held invalid or inoperative, the other portions of this letter shall be deemed valid and operative and, so far as is reasonable and possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. |
If the terms of this letter agreement are acceptable to you, please sign where indicated below.
Sincerely,
| /s/ David Peacock |
| David Peacock |
| Chief Executive Officer |
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ACCEPTANCE
By signing below, I accept this letter agreement on the terms outlined above and acknowledge that my continued employment with the Company will be on an at-will basis.
| /s/ Jeffrey Harsh | October 31, 2026 | |||
| Jeff Harsh | Date |
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Exhibit B
Form of General Release
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the “Agreement”) is entered into by and between Jeff Harsh (“Employee”), on the one hand, and Advantage Sales & Marketing LLC, a Nevada limited liability company (the “Company”), on the other hand.
WHEREAS, Company employed Employee pursuant to that certain amended and restated letter agreement dated as of ______, 2026, as amended or otherwise modified from time to time (the “Employment Agreement”);
WHEREAS, Employee’s employment and all of Employee’s positions with Company and its subsidiaries and affiliates terminated effective [DATE] (the “Termination Date”);
WHEREAS, Employee seeks to obtain the payments and benefits provided under the Employment Agreement;
WHEREAS, Employee acknowledges that Employee has received all accrued wages, bonus, vacation/paid time-off and any other compensation due as of the Termination Date; provided, however, that Employee understands Employee may subsequently receive a separate check for reimbursement of reasonable business expenses in accordance with Company policies; and
WHEREAS, capitalized terms used, but not defined in this Agreement, shall have the meanings ascribed to such terms in the Employment Agreement.
NOW THEREFORE, in an effort to put any and all disputes behind the parties, for and in consideration of the mutual covenants contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties have agreed to settle finally and forever any and all claims between them of any nature whatsoever relating to, or arising from Employee’s employment by Company and/or the termination of that employment.
1. Effective Date. This Agreement shall not become effective unless and until (i) the Company has received this Agreement signed by Employee without modification; and (ii) the seven (7)-day revocation period referenced herein has expired and Employee has not revoked Employee’s assent to this Agreement, and shall thereafter be effective as of the date such revocation period terminates without exercise (the “Effective Date”).
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2. Severance Pay and Benefits. Provided that (i) the Effective Date has occurred; (ii) Employee has not revoked Employee’s assent to this Agreement; and (iii) Employee has returned all Company property (including without limitation any and all confidential and proprietary information) issued to Employee in connection with Employee’s employment with the Company, the Company shall provide Employee with the [Non-CIC Severance Benefits][CIC Severance Benefits] set forth in the Employment Agreement, payable at the times set forth in, and subject to the terms and conditions of, the Employment Agreement.1 In addition, to the extent not already paid, and subject to the terms and conditions of the Employment Agreement, the Company shall pay or provide to Employee the Accrued Rights described in the Employment Agreement, subject to and in accordance with the terms thereof.
2.1 To the extent the payments set forth in Section 2 and its subsections paid by the Company to Employee are considered taxable income, they will be reported on a Form W-2 issued to Employee for the applicable year.
2.2 In the event the Company, after reasonable investigation, determines that Employee has materially breached Employee’s obligations under (i) this Agreement; (ii) the CPPSA; (iii) any restrictive covenants with the Company (including any restrictive covenants contained in the CPPSA) (the “Restrictive Covenants”); (iv) the confidentiality or non-disparagement obligations contained in the Employment Agreement or CPPSA; or (v) the Seventh Amended and Restated Agreement of Limited Partnership of Karman Topco L.P. as amended, supplemented or otherwise modified from time to time, (the “LP Agreement”), if applicable, Employee’s eligibility for any severance payments and benefits shall cease immediately.
2.3 Employee acknowledges that the foregoing severance pay and benefits exceed any earned wages or anything else of value otherwise owed to Employee by the Company.
| 1 | Note to Draft: Actual severance payments and benefits to be included here depending on circumstances of termination based on applicable section of the Employment Agreement, including if the termination is or could qualify as a Change in Control Qualifying Termination. |
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3. General Release of Claims.
3.1 Except for the obligations arising out of this Agreement and any claims that cannot be waived as a matter of law, in consideration of this Agreement and the other good and valuable consideration provided to Employee pursuant hereto, Employee, for Employee and on behalf of each and all of Employee’s respective legal predecessors, successors, assigns, fiduciaries, heirs, parents, spouses, companies and affiliates (all referred to as the “Employee Releasors”) hereby irrevocably and unconditionally releases, and fully and forever discharges and absolves Company, its parents, subsidiaries and affiliates (“Advantage Companies”) and each of their respective partners, officers, directors, managers, shareholders, members, agents, employees, heirs, divisions, attorneys, trustees, administrators, executors, representatives, predecessors, successors, assigns, related organizations and related employee benefit plans (collectively, the “Company Releasees”), of, from and for any and all claims, rights, causes of action, demands, damages, rights, remedies and liabilities of whatsoever kind or character, in law or equity, known or unknown, suspected or unsuspected, past, present, or future, that the Employee Releasors have ever had, may now have, or may later assert against the Company Releasees whether or not arising out of or related to Employee’s employment with Company or the termination of Employee’s employment by Company (hereinafter referred to as “Employee’s Released Claims”), from the beginning of time up to and including the Effective Date, including without limitation, any claims, debts, obligations, and causes of action of any kind arising under any (i) contract including but not limited to the Employment Agreement and any bonus or other compensation plan, (ii) any common law (including but not limited to any tort claims) or (iii) any federal, state or local statutory law including, without limitation, any law which prohibits discrimination or harassment on the basis of sex, race, national origin, veteran status, age, immigration or marital status, sexual orientation, disability, or on any other basis, including without limitation, those arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, any state or local wage and hour laws (to the fullest extent permitted by law), and/or any state or local laws which prohibit discrimination or harassment of any kind; provided, however, that Employee’s release does not waive, release or otherwise discharge any claim or cause of action that cannot legally be waived, including, but not limited to, any claim for workers’ compensation benefits and unemployment benefits, any claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to Employee’s liability as an employee, director or officer of the Company, claims to any benefit entitlements vested as the date of separation of Employee’s employment pursuant to written terms of any employee benefit plan of the Company or its affiliates and Employee’s claims for any breach of the Company’s executory obligations under the Employment Agreement.
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3.2 Employee represents and warrants that Employee has brought no complaint, claim, charge, action or proceeding against any of the Advantage Companies in any jurisdiction or forum, nor will Employee, from the Effective Date forward, encourage any other person or persons in doing so. Employee covenants and agrees never to pursue any judicial proceedings against the Company Releasees asserting any of the Employee’s Released Claims and (notwithstanding the above representation and warranty) to dismiss forthwith any such proceedings initiated to date. Employee shall not bring any complaint, claim, charge, action or proceeding to challenge the validity of this Agreement or encourage any other person or persons in doing so. Notwithstanding the foregoing, nothing herein shall prevent Employee from filing or from cooperating in any charge filed with a governmental agency; provided, however, Employee acknowledges and agrees that Employee waiving the right to any monetary recovery should any agency (such as the Equal Opportunity Commission or any similar state or local agency) pursue any claim for Employee’s benefit. Further, nothing herein shall prevent Employee from challenging the validity of the release of Employee’s claims, if any, under the Age Discrimination in Employment Act.
3.3 Except with respect to a breach of obligations arising out of this Agreement, if any, and to the fullest extent permitted by law, execution of this Agreement by the parties operates as a complete bar and defense against any and all of Employee’s Released Claims.
4. Waiver of Unknown Claims. Employee expressly acknowledges that Employee has read and understood the following language contained in Section 1542 of the California Civil Code:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
But for the obligations arising from this Agreement, having reviewed this provision, Employee nevertheless hereby voluntarily waives and relinquishes any and all rights or benefits Employee may have under section 1542, or any other statutory or non-statutory law of similar effect. Thus, Employee expressly acknowledges this Agreement is intended to and does include in its effect, without limitation, all claims Employee does not know or suspect to exist in Employee’s favor at the time of signing this Agreement, and that this Agreement extinguishes any such claims. Employee warrants that Employee has consulted counsel and/or has had the opportunity to consult with counsel about this Agreement and specifically about the waiver of section 1542 (or other state law of similar effect) and that Employee understands the section 1542 (or other state law of similar effect) waiver and freely and knowingly enters into this Agreement. Employee acknowledges that Employee may later discover facts different from or in addition to those Employee now knows or believes to be true regarding the matters released or described in this Agreement, and even so, Employee agrees that the releases contained in this Agreement shall remain effective in all respects notwithstanding any later discovery of any different or additional facts.
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5. No Admissions. By signing this Agreement, the Company does not admit to any wrongdoing or legal violation by the Company or the Company Releasees.
6. Cooperation. Employee hereby agrees to cooperate with and provide requested assistance to Company with respect to any claim, cause of action, litigation, or other matter involving the Company, in which: (a) Employee (i) has significant knowledge, or (ii) was intimately involved, during the course of Employee’s employment, and (b) such requested assistance and/or cooperation is reasonably necessary and appropriate. For the avoidance of doubt, nothing in this Section 6 is intended to require Employee to provide anything but truthful and accurate information or testimony in the event Employee is asked for information or called to testify.
7. Return of Information and Property. Employee represents that as of the date of Employee’s execution of this Agreement, Employee has returned to the Company, all Company property, equipment, confidential information, records, electronically stored data and other materials relating to Employee’s employment, including tools, documents, papers, computer software, passwords and other identification materials, ID cards, keys, credit cards, personal computers, tablets, cell phones, and/or instruction manuals. This obligation applies to all materials relating to the affairs of the Company or any of its customers, clients, vendors, employees, or agents that may be in Employee’s possession or control. All such Company property must be returned by Employee in order for Employee to commence receiving the severance pay and benefits provided under Section 2 hereof.
8. Compliance with Prior Restrictive Covenants. Employee hereby reaffirms Employee’s obligations under the Restrictive Covenants.
9. Remedy for Breach.
9.1 Employee acknowledges that Employee’s breach of the obligations contained in this Agreement would cause the Company irreparable harm that could not be reasonably or adequately compensated in damages in an action at law. If Employee breaches or threatens to breach any of the provisions contained in this Agreement, the Company shall be entitled to an injunction, without bond, restraining Employee from committing such breach. The Company’s right to exercise its option to obtain an injunction shall not limit its right to any other remedies for breach of any provision of this Agreement.
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9.2 Employee agrees that Employee’s obligations under this Agreement shall be absolute and unconditional.
9.3 The foregoing shall in no way limit the Company’s rights under Section 2.2 of this Agreement.
10. Other Rights & Obligations. Nothing in this Agreement shall limit any rights or obligations of the Employee under the LP Agreement or any other agreement pertaining to Employee’s ownership of Units (as defined in the LP Agreement).
11. Confidentiality. Employee agrees the terms and conditions of this Agreement shall be confidential and shall not be disclosed except (as applicable) (i) as required by subpoena or otherwise by law; (ii) to an accountant or tax preparer for the purposes of preparing tax returns only; (iii) to Employee’s attorney; or (iv) to Employee’s spouse; provided, however, that Employee advises the person receiving such information of the confidentiality obligations required as to such information, and such person commits to keep such information confidential on terms no less stringent than the terms of this Agreement. Further, if Employee receives a subpoena, court order, or other compulsory process requiring disclosure of the terms of this Agreement, Employee shall provide written notice to the Company so as to afford the Company a reasonable opportunity to seek a protective order, to the fullest extent permitted by law. If application for a protective order is made promptly by the Company, Employee shall not disclose the terms of this Agreement prior to receiving a court order or consent of the Company.
12. Employee Representations. Employee represents and agrees that Employee (a) has suffered no injuries or damages in the course and scope of Employee’s employment with the Company that Employee did not already report to the Company; (b) fully understands all terms of this Agreement and is signing it voluntarily and with full knowledge of its significance; and (c) is not relying and has not relied upon any representation or statement made by the Company or its agents, representatives or attorneys, with regard to the subject matter, basis or effect of this Agreement or otherwise, other than as specifically stated in this Agreement.
13. Notice. All notices or other communications hereunder shall be provided in accordance with the “Notices” provision in the Employment Agreement.
14. No Modification. No modification to any term or provision contained in this Agreement shall be binding upon any party unless made in writing and signed by both parties.
15. Severability. If any provision of this Agreement is held to be unenforceable for any reason, all of the remaining parts of the Agreement shall remain in full force and effect.
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16. No Assignment. Each party represents Employee or it has not assigned any portion of the Employee’s Released Claims to any third party.
17. Choice of Law. This Agreement shall be governed by the laws of the State of Pennsylvania, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction.
18. Entire Agreement. This Agreement and the Employment Agreement (together with the documents referred to herein and therein, including without limitation the Restrictive Covenants) supersede all prior agreements between the parties with respect to their subject matter, and are a complete and exclusive statement of the terms of the agreement between the parties with respect hereto and thereto.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature.
20. Successors and Assigns. This Agreement shall bind and shall inure to the benefit of the successors and assigns of each party. With respect to Employee, this Agreement shall also bind and inure to the benefit of Employee’s heirs and assigns.
21. Delivery by Facsimile or Email. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms thereof and deliver them to all other parties (with any costs associated with such request and delivery to be assumed by the requesting party). No party hereto shall raise the use of a facsimile machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.
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22. ADEA Provisions and Notification. In compliance with the requirements of the Age Discrimination in Employment Act (ADEA), as amended by the Older Workers’ Benefit Protection Act of 1990, Employee acknowledges by Employee’s signature below that, with respect to the rights and claims waived and released herein under the ADEA, Employee has read and understands this Agreement and specifically understands the following:
22.1 That Employee is advised to consult with an attorney before signing this Agreement;
22.2 That Employee is releasing the Company Releasees from, among other things, any claims which Employee might have against any of them pursuant to the ADEA as amended;
22.3 That the releases contained in this Agreement do not cover any rights or claims that may arise after the date on which Employee executed this Agreement;
22.4 That Employee has been given a period of twenty-one (21) days in which to consider this Agreement but if Employee elects to forego any portion of the twenty-one (21) day period Employee understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one (21) day period; and
22.5 That Employee may revoke this Agreement during the seven (7) day period following the date of Employee’s execution of this Agreement by giving written notice of said revocation in accordance with the notice provision of this Agreement, and that this Agreement will not become binding and effective until the seven (7) day revocation period has expired.
23. Dispute Resolution. All disputes under this Agreement shall be governed by the “Arbitration” provision in the Employment Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
| Dated:_________, 20___ | ||||||
| Jeff Harsh | ||||||
| Advantage Sales & Marketing LLC | ||||||
| Dated:_________, 20___ | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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Exhibit 10.4
Certain identified information has been excluded from this exhibit because it is both not material and is the type that the registrant treats as private or confidential. Information that was omitted has been noted in this document with a placeholder identified by the mark “[***]”.
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October 30, 2026
George Johnson
[***]
You and Advantage Sales & Marketing LLC, d/b/a Advantage Solutions (the “Company”), are parties to that certain employment offer letter dated November 18, 2024 (the “Prior Agreement”). You and the Company desire to amend and restate the Prior Agreement on the terms and conditions set forth below, effective as of the date set forth above (the “Effective Date”).
| • | Position |
You will continue to serve in the position of Chief Operating Officer, Demonstration Services and Workforce Operations of Advantage Solutions Inc. (“Parent”) and its direct and indirect subsidiaries (the “Company Group”), and will continue to report directly to Dave Peacock, Chief Executive Officer. Your principal place of employment will be your home office in South Carolina or the Company’s offices in Charlotte, North Carolina Orange County, California or such other place as reasonably determined by the Company in accordance with this letter agreement, and from time to time you may be required to travel to other locations in the performance of your responsibilities under this letter agreement.
You will devote substantially all of your business judgment, knowledge and skill to the performance of your duties with the Company Group, provided, however, that nothing herein or otherwise shall prevent you from (i) serving on the boards of directors of non-profit organizations, (ii) with written consent from the Company (not to be unreasonably withheld, delayed or conditioned), advising and serving on the boards of directors of non-competitive companies, (iii) participating in charitable, civic, educational, professional, community or industry affairs, and (iv) managing your personal investments and legal affairs.
| • | Compensation & Benefits |
| • | Base Salary. You will continue to receive a base salary of USD $41,666.67 per month (or $500,000 annualized); which shall be paid in accordance with the Company’s bi-weekly payroll calendar. The base salary as determined herein from time to time shall constitute “Base Salary” for purposes of this letter agreement. |
7676 Forsyth Boulevard
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| • | Benefit Plans. During your employment you will be eligible to participate in the Company’s benefit programs including the Company’s medical, dental, vision, 401(k), life insurance, executive physical plan, short-term disability, and long-term disability plans. The existence and terms of any such benefit plans are subject to change, and your eligibility for and participation in such plans are subject to the terms and conditions contained in those plans. |
| • | Bonus Program. You are eligible to participate in the Company’s Bonus Program (the “Bonus Program”) applicable to your position, subject to the terms and conditions of the Bonus Program. Your target bonus percentage is 80% of your Base Salary (your “Target Bonus”). The actual bonus amount each year is subject to the achievement of Company objectives, your calendar year bonus eligible earnings, and subject to the terms and conditions of the Bonus Program. In addition, except as set forth herein, there will be no bonus payment awarded, including any partial or prorated bonus, if you depart the Company for any reason prior to the bonus payment date. Further, the Bonus Program is subject to modification and/or cancellation at any time. |
| • | Equity Grant. Subject to (1) you remaining in good standing, and (2) the discretion and approval of the Human Capital Committee of the Board of Directors of Parent, you will be eligible for an equity grant of up to 125% of your annual base salary. The type of equity awarded as well as the vesting terms will be outlined in future equity documentation. |
| • | Vacation and Other Time Away. In this role, you are eligible for vacation and floating holidays under the Company’s Flexible, No Accrual Vacation and Floating Holiday policy. Your eligibility for other types of time away (such as sick time and leaves of absence) shall be in accordance with Company policy, subject to applicable law. |
| • | Expenses. You will be reimbursed in accordance with the Company’s expense reimbursement policy for all out-of-pocket business, travel and entertainment expenses incurred and paid by you during your employment or in connection with the performance of your duties hereunder. |
| • | At Will Employment; Termination. Employment with the Company is “at will”, which means that either you or the Company can end the employment relationship at any time, with or without Cause (as defined below), subject to the provisions hereof. No one at the Company has the authority to promise you anything different, unless in writing and signed by the Company’s Chief Executive Officer. |
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| • | Termination of Employment. In the event of your termination of employment for any reason, you will be entitled to receive (i) any unpaid Base Salary through the date of termination, (ii) other than in the case of a termination of employment by the Company for Cause or by you without Good Reason, any earned but unpaid annual bonus under the Bonus Program with respect to a performance period ending on or prior to the date of termination, payable at the same time as it would have been paid had you not undergone a termination of employment, (iii) reimbursement for any unreimbursed business expenses incurred through the date of termination, and (iv) all other payments or benefits to which you are entitled under the terms of any applicable compensation or equity arrangement or employee benefit plan or program of the Company Group (the “Accrued Rights”). |
| • | Severance – Termination Other Than a Change in Control Qualifying Termination. If your employment is terminated by the Company without Cause or by you with Good Reason (as defined below), and such termination is not a Change in Control Qualifying Termination (as defined below), then subject to your compliance with this letter and any restrictive covenant obligations, and the effectiveness of your release (as described below), you will be entitled to receive the following severance benefits (the “Non-CIC Severance Benefits”): |
| • | Your Base Salary for a period of twelve (12) months (at the highest rate in effect during the twelve (12)-month period preceding the date of termination and, in the case of a diminution in your Base Salary which would give rise to Good Reason for your resignation, in no event less than the Base Salary in effect prior to such diminution), payable in equal installments over the twelve (12) month period following the date of termination. Any payments by the Company under this paragraph will commence on the First Payment Date (as defined below) and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above; and |
| • | Provided that you promptly enroll in COBRA after receiving your COBRA options, provide notice to the Company of your enrollment in COBRA, and make the required employee-portion of the COBRA premium, then the Company will pay the employer portion and the administrative fee of the monthly COBRA premium (at the rate in effect at the time of termination) to the COBRA administrator for up to twelve (12) months (provided, however, that if you discontinue |
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| COBRA coverage or if you become covered by the health insurance policy of any subsequent employer, the continuation of such health insurance coverage and premium subsidy by the Company shall cease). Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay you on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Any payments by the Company under this paragraph will commence on the First Payment Date and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above. |
| • | “Cause” means one or more of the following apply to your termination: (1) you engaged in dishonesty or gross negligence in connection with your job duties, which, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such dishonesty or gross negligence is received by you from the Company, (2) you willfully or continually failed to perform your job duties, which, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such failure is received by you from the Company, (3) you breached a fiduciary duty including, without limitation the duty of loyalty to the Company, which breach, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such breach is received by you from the Company, (4) you engaged in intentional misconduct in connection with your job duties, which misconduct, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such misconduct is received by you from the Company, (5) you violated a material written policy of the Company, including, without limitation, policies pertaining to harassment, discrimination or drug and alcohol use which violation, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such violation is received by you from the Company, (6) you are convicted or plead guilty to a felony, or a misdemeanor involving moral turpitude, or (7) you materially breached a restrictive covenant with the Company, |
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| which breach, if curable in the reasonable determination of the Company, is not cured within ten (10) calendar days after a written notice specifying such breach is received by you from the Company. For the avoidance of doubt, “Cause” does not include any failure to achieve any performance targets, whether relating to you, the Company or its broader group, or otherwise. |
| • | “Change in Control” has the meaning set forth in Exhibit A. |
| • | “Change in Control Qualifying Termination” means (1) a termination of your employment by the Company without Cause or by you for Good Reason occurring on or following the date of a Change in Control but prior to the date that is twenty-four (24) months following such Change in Control, or (2) a termination of your employment by the Company without Cause or by you for Good Reason that occurs (A) following the execution of a definitive agreement that, if the transaction(s) contemplated thereunder are consummated, would result in a Change in Control (a “Change in Control Agreement”), (B) (1) in connection with or as a result of the potential Change in Control transaction (as determined by the Company in good faith) and (2) other than a termination or resignation for reasons unrelated to the potential Change in Control transaction (including, without limitation, for purposes of this clause (2), due to a reduction in force, termination due to poor performance, restructuring, position elimination, organizational structure redesign or leadership change or consolidation, in each case unrelated to the potential Change in Control transaction), and (C) within six (6) months prior to the date of the consummation of a Change in Control (whether or not pursuant to such Change in Control Agreement). For the avoidance of doubt, with respect to clause (2) above, if a Change in Control does not occur within six (6) months following a termination of your employment by the Company without Cause or by you for Good Reason, then such termination will cease to be a Change in Control Qualifying Termination for purposes of this letter agreement, you will not be entitled to any CIC Severance Benefits (as defined below), and you shall instead only be eligible to receive the Non-CIC Severance Benefits. |
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| • | “Good Reason” means termination of your employment for any of the following: (a) a reduction in the Base Salary or Target Bonus, other than a reduction of less than 10% of Base Salary (and thereby the Target Bonus) made as part of a reduction in the Base Salary or Target Bonus of all executive officers of the Company (and for the avoidance of doubt, following a Change in Control, the reference to executive officers of the Company shall include, without limitation, the executive officers of the ultimate parent entity of the Company (or its successor)); (b) the prohibition on you from working remotely until your relocation has occurred, or, following your relocation, the relocation by the Company, to a location that is more than fifty (50) miles from your then current principal place of employment; (c) any material breach by the Company of this letter agreement or any other agreement under which you provide services to the Company; or (d) following a Change in Control, the material diminution or other reduction in your duties and responsibilities or your title (including, without limitation, following a Change in Control, your ceasing to serve as a chief operating officer of the ultimate parent entity of the Company (or its successor) or ceasing to report to the chief executive officer of the ultimate parent entity of the Company (or its successor)). Notwithstanding the foregoing, you shall not have “Good Reason” to terminate your employment in connection with any of the foregoing events unless (1) you provide the Company prior written notice of such termination, and such notice is provided within ninety (90) days of the initial occurrence of the event constituting Good Reason; (2) such termination is conditioned upon the Company failing to cure the event constituting Good Reason within the thirty (30)-day period following provision of notice; and (3) the Company fails to cure such event constituting Good Reason within such thirty (30)-day period. |
| • | Severance – Change in Control Qualifying Termination. If your employment terminates by reason of a Change in Control Qualifying Termination,, then subject to your compliance with this letter agreement and any restrictive covenant obligations, and the effectiveness of your release, in lieu of the Non-CIC Severance Benefits, you will be entitled to receive the following severance benefits (the “CIC Severance Benefits”) (for the avoidance of doubt, in the event that your termination without Cause or resignation for Good Reason occurs prior to a Change in Control but ultimately qualifies as a Change in Control Qualifying Termination, the CIC Severance Benefits payable below shall be reduced by any Non-CIC Severance Benefits that you previously received as a result of such termination or resignation): |
| • | Your Base Salary for a period of eighteen (18) months (at the highest rate in effect during the twelve (12)-month period preceding the date of termination and, in the case of a diminution in your Base Salary |
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| which would give rise to Good Reason for your resignation, in no event less than the Base Salary in effect prior to such diminution), payable in equal installments over the eighteen (18) month period following the date of termination. Any payments by the Company under this paragraph will commence on the First Payment Date and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above; |
| • | A lump sum payment equal to one and one-half (1.5) times your Target Bonus then in effect at the time of such termination (or in the case of a diminution in your Target Bonus which would give rise to Good Reason for your resignation, the Target Bonus in effect prior to such diminution). Such payment will be made on the later of (i) the First Payment Date, or (ii) the date of the Change in Control; |
| • | Provided that you promptly enroll in COBRA after receiving your COBRA options, provide notice to the Company of your enrollment in COBRA, and make the required employee-portion of the COBRA premium, then the Company will pay the employer portion and the administrative fee of the monthly COBRA premium to the COBRA administrator for up to eighteen (18) months (provided, however, that if you discontinue COBRA coverage or if you become covered by the health insurance policy of any subsequent employer, the continuation of such health insurance coverage and premium subsidy by the Company shall cease). Notwithstanding the foregoing, if the Company determines that its payment of a portion of the COBRA premiums would violate applicable law, then in lieu of providing the COBRA premiums above, the Company may elect to instead pay you on the first day of each month during the COBRA coverage period specified above, a taxable cash payment equal to the portion of the COBRA premiums payable by the Company for that month. Any payments by the Company under this paragraph will commence on the First Payment Date and will include any payments that the Company would have paid through such date had such payments commenced on your termination date, with the balance of the payments paid thereafter on the schedule described above; and |
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| • | With respect to each outstanding equity award held by you, you shall be eligible to vest 100% of your then outstanding equity awards the vesting of which is time-based effective as of the date of your termination of employment, which vesting shall occur effective as of the later of (1) the effective date of your release or (2) the date of a Change in Control; provided, however, that with respect to equity awards granted to you prior to the Effective Date (the “Existing Equity Awards”), the foregoing acceleration shall only apply to the extent your Change in Control Qualifying Termination occurs pursuant to clause (1) of the definition of such term and during the period commencing on or after the date of a Change in Control and ending twenty-four (24) months thereafter. To the extent any equity awards are subject to performance-based vesting, the accelerated vesting of such equity awards that are performance-based shall be governed by the applicable equity plan and agreement pursuant to which they were granted. Further, the post-termination exercise period for any vested stock options held by you as of the date of your termination and that are not Existing Equity Awards shall be extended through the earlier to occur of (x) the eighteen (18) month anniversary of your date of termination and (y) the expiration date of such stock options. The foregoing provisions are hereby deemed to be a part of each equity award and to supersede any less favorable provision in any agreement or plan regarding such equity award (and, for the avoidance of doubt, if any equity award is subject to more favorable vesting pursuant to any agreement or plan regarding such equity award, such more favorable provisions shall continue to apply and shall not be limited by this paragraph). For the avoidance of doubt, if your termination without Cause or resignation for Good Reason occurs prior to a Change in Control but under circumstances that mean such termination or resignation could constitute a Change in Control Qualifying Termination, then any unvested portion of your outstanding equity awards that are eligible for accelerated vesting under this paragraph will remain outstanding for six (6) months or until the occurrence of a Change in Control (whichever is earlier) so that any vesting acceleration and extension benefits provided under this paragraph can be provided if a Change in Control occurs within six (6) months following such termination and you experience a Change in Control Qualifying Termination (provided that in no event will any awards remain outstanding beyond their maximum term or expiration date). The Company shall in good faith consider an amendment to your Existing Equity Awards at the time of your termination without Cause or resignation for Good Reason occurring prior to a Change in Control to provide that such awards shall be eligible for the same acceleration and extension treatment if such termination ultimately qualifies as a Change in Control Qualifying Termination. |
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| • | Release. In addition to the foregoing, in order to be eligible for the Non-CIC Severance Benefits or the CIC Severance Benefits set forth above you must execute, deliver to the Company, and not revoke, a full and general release in the form substantially attached hereto as Exhibit B, which release must become effective within sixty (60) days following your termination date, and remain in compliance with any and all restrictive covenants with the Company. In the event that you materially breach your obligations hereunder or under any restrictive covenants (including the CPPSA (as defined below)), any and all severance payments or benefits provided for in the paragraphs above shall cease immediately. |
| • | Other Terminations. If your employment ends for any other reason, including, without limitation, if you elect to end your employment with the Company without Good Reason, die or become disabled and unable to perform the duties of your position, or are terminated with Cause, you will not be eligible for Non-CIC Severance Benefits or CIC Severance Benefits. |
| • | Section 409A. The parties hereto acknowledge and agree that this letter agreement and the payments and benefits herein, are intended to comply with, or be exempt from, Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and shall be interpreted accordingly. For purposes of Code Section 409A, your right to receive any installment payments pursuant to this letter agreement shall be treated as a right to receive a series of separate and distinct payments. Notwithstanding anything in this letter agreement to the contrary, any compensation or benefits payable under this letter agreement that is designated under this letter agreement as payable upon your termination of employment shall be payable only upon your “separation from service” with the Company Group within the meaning of Section 409A (a “Separation from Service”) and, except as provided below, any cash severance installments shall not commence until the sixtieth (60th) day following your Separation from Service (the “First Payment Date”). Any installment payments that would have been made to you during the sixty (60) day period immediately following your Separation from Service but for the preceding sentence shall be paid to you on the First Payment Date and the remaining payments shall be made as provided in this letter agreement. If you are a “specified employee” (within the meaning of Code Section 409A) as of your Separation from Service, payment of any amounts under this letter agreement (or under any severance arrangement pursuant to this letter agreement) which |
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| constitute the payment of nonqualified deferred compensation (within the meaning of Code Section 409A) and which would otherwise be paid upon your separation from service shall not be paid before the date that is six (6) months after the date of your separation from service and any amounts that cannot be paid by reason of this limitation shall be accumulated and paid on the first day of the seventh (7th) month following the date of your separation from service (within the meaning of Code Section 409A). To the extent required by Section 409A of the Code, each reimbursement or in-kind benefit provided under this letter agreement shall be provided in accordance with the following: (a) the amount of expenses eligible for reimbursement, or in-kind benefits provided, during each calendar year cannot affect the expenses eligible for reimbursement, or in-kind benefits to be provided, in any other calendar year; (b) any reimbursement of an eligible expense shall be paid to you on or before the last day of the calendar year following the calendar year in which the expense was incurred; and (c) any right to reimbursements or in-kind benefits under this letter agreement shall not be subject to liquidation or exchange for another benefit. |
| • | Parachute Payments. |
| • | Notwithstanding any other provisions of this letter agreement or any employee benefit plans, programs or arrangements, in the event that any payment or benefit by the Company or otherwise to or for the benefit of you, whether paid or payable or distributed or distributable pursuant to the terms of this letter agreement or otherwise (all such payments and benefits being hereinafter referred to as the “Total Payments”), would be subject (in whole or in part) to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then the Total Payments shall be reduced (in the order provided in the following paragraph below) to the minimum extent necessary to avoid the imposition of the Excise Tax on the Total Payments, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income and employment taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments), is greater than or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income and employment taxes on such Total Payments and the amount of the Excise Tax to which you would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments). |
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| • | The Total Payments shall be reduced in the following order: (i) reduction on a pro rata basis of any cash severance payments that are exempt from Section 409A of the Code, (ii) reduction on a pro rata basis of any non cash severance payments or benefits that are exempt from Section 409A of the Code, (iii) reduction on a pro rata basis of any other payments or benefits that are exempt from Section 409A of the Code, and (iv) reduction of any payments or benefits otherwise payable to you on a pro rata basis or such other manner that complies with Section 409A of the Code; provided, that in case of subclauses (ii), (iii) and (iv), any reduction of any payments attributable to the acceleration of vesting of Company equity awards shall be first applied to Company equity awards that would otherwise vest last in time; provided, further, that, notwithstanding the foregoing, any such reduction shall be undertaken in a manner that complies with and does not result in the imposition of additional taxes on you under Section 409A of the Code, and that results in the maximum economic benefit to you on an after-tax basis. |
| • | The Company will select an advisor with experience in performing calculations regarding the applicability of Section 280G of the Code and the Excise Tax prior to the date of the applicable change in ownership or control (the “Independent Advisor”) to make determinations regarding the application of this provision concerning parachute payments. The Independent Advisor shall provide its determination, together with detailed supporting calculations and documentation, to you and the Company within fifteen (15) business days following the date on which your right to the Total Payments is triggered, if applicable, or such other time as requested by you (provided, that you reasonably believe that any of the Total Payments may be subject to the Excise Tax) or the Company. The costs of obtaining such determination and all related fees and expenses (including related fees and expenses incurred in any later audit) shall be borne by the Company. Any good faith determinations of the Independent Advisor made hereunder shall be final, binding and conclusive upon the Company (and any successor) and you. |
| • | In the event it is later determined that to implement the objective and intent of this provision concerning parachute payments, a lesser reduction in the Total Payments should have been made, the excess amount shall be paid or provided promptly by the Company to you, except to the extent the Company reasonably determines would result in the imposition of an excise tax under Section 409A of the Code. |
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| • | Other Important Information |
| • | No Other Representations. You hereby reaffirm the representations and covenants in this letter and in that certain Confidentiality, Property Protection, and Non-Solicitation Agreement between you and the Company (the “CPPSA”) and you represent that no one at the Company has made any other promises or statements upon which you have relied that are different from those in this letter. This letter (together with the documents referred to herein, including without limitation the CPPSA) supersedes all prior agreements between the parties with respect to its subject matter (including, without limitation, the Prior Agreement); and is a complete and exclusive statement of the terms of the agreement between the parties with respect thereto. |
| • | Policies & Procedures. Your continued employment with the Company is subject to its policies and procedures including, without limitation, those set forth in the Associate Handbook and Code of Business Conduct & Ethics, copies of which were made available to you as part of the on-boarding process and during employment. You can also find legally required notices (such as those required under state or local law) through the Policies & Procedures site which can be found on the Company’s internal website, www.connectshub.com. You agree to comply with all such policies and procedures (and any changes thereto). |
| • | Terms Subject to Change. The terms and conditions of employment (including without limitation, compensation, benefits, supervisor, work location, and duties) are subject to change at any time with or without notice or cause, as permitted by law. |
| • | No Prior Obligations in Conflict with Employment with the Company. You represent and agree that: (a) your employment with the Company and compliance with the terms and conditions of such employment will not conflict with or result in the breach by you of any agreement to which you are a party or by which you may be bound, (b) you have not, and in connection with your employment with the Company will not, violate any non-competition, non-solicitation or other similar covenant or agreement by which you are or may be bound, and (c) in connection with your employment with the Company you will not use any confidential or proprietary information you may have obtained in connection with employment with any prior employer (other than the Company and its affiliated entities prior to the date of your employment with the Company). |
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| • | Reasonable Accommodations. Employment with the Company is contingent on an individual’s being able to perform the essential functions of the job with or without a reasonable accommodation. The Company is committed to providing such reasonable accommodation as required by law. If you believe you need an accommodation to perform the essential duties of the position you are being offered or to enjoy the benefits or privileges of employment, you are encouraged to contact the Company’s Workplace Accommodations Department at 888.985.0349 or leaveandaccommodations@youradv.net to request an accommodation, which will be evaluated on an individualized basis through an interactive process. |
| • | Arbitration. To ensure the timely and economical resolution of disputes that may arise in connection with your employment with the Company, to the extent permitted by applicable law, you and the Company agree that any and all disputes, claims, or causes of action arising from or relating to the enforcement, breach, performance, negotiation, execution, or interpretation of this letter agreement, your employment, or the termination of your employment, including but not limited to statutory claims, shall be resolved pursuant to the Federal Arbitration Act, 9 U.S.C. §1-16, and to the fullest extent permitted by law by final, binding and confidential arbitration, by a single neutral arbitrator in South Carolina, chosen jointly by the parties, and will be conducted by JAMS, Inc. (“JAMS”) under the then applicable JAMS rules (which can be found at the following web address: https://www.jamsadr.com/rules-employment-arbitration/ or will be provided to you upon request without charge). If the parties cannot agree on an arbitrator, then JAMS shall appoint an arbitrator in accordance with JAMS rules. By agreeing to this arbitration procedure, both you and the Company waive the right to resolve any such dispute through a trial by jury or judge or administrative proceeding. The Company acknowledges that you will have the right to be represented by legal counsel at any arbitration proceeding. In addition, all claims, disputes, or causes of action under this paragraph, whether by you or the Company, must be brought in an individual capacity, and shall not be brought as a plaintiff (or claimant) or class member in any purported class or representative proceeding, nor joined or consolidated with the claims of any other person or entity. The arbitrator may not consolidate the claims of more than one person or entity, |
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| and may not preside over any form of representative or class proceeding. To the extent that the preceding sentences regarding class claims or proceedings are found to violate applicable law or are otherwise found unenforceable, any claim(s) alleged or brought on behalf of a class shall proceed in a court of law rather than by arbitration. The arbitrator shall: (i) have the authority to compel adequate discovery for the resolution of the dispute and to award such relief as would otherwise be permitted by law; and (ii) issue a written arbitration decision, to include the arbitrator’s essential findings and conclusions and a statement of the award. The arbitrator shall be authorized to award any or all remedies that you or the Company would be entitled to seek in a court of law. The Company shall pay all JAMS’ arbitration fees in excess of the amount of court fees that would be required of you if the dispute were filed in superior court (or the similar court of competent jurisdiction in the jurisdiction in which the arbitration will take place). Nothing in this letter agreement is intended to prevent either you or the Company from obtaining injunctive relief in court to prevent irreparable harm pending the conclusion of any such arbitration. Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction. |
| • | Governing Law; No Modification. This letter agreement is a binding contract and may not be modified or amended except by a written agreement, signed by the Company and by you. This letter agreement shall be governed by the laws of the state in which you reside on the date this letter agreement becomes effective, without regard to any conflicts of laws. |
| • | Notices. All notices or other communications hereunder shall be in writing and shall be deemed to have been duly given (a) by hand (with written confirmation of receipt), (b) by registered mail, return receipt requested, or (c) by a nationally recognized overnight delivery service (receipt requested), in each case to the appropriate address set forth below (or to such other address as a party may designate by notice given in accordance herewith). Notices and communications to the Company shall be addressed to the Chief Legal Officer at the Company’s principal executive offices. Notices and communications to you shall be addressed to your most recent address on file with the Company. Any party hereto may, by notice to the other, change its address for receipt of notices hereunder. |
| • | Counterparts. This letter may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature. |
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| • | Withholding and other Deductions. All compensation payable to you hereunder shall be subject to such deductions as the Company is from time to time required to make pursuant to law, governmental regulation or order. |
| • | Successors and Assigns. This letter shall be binding upon you, without regard to the duration of your employment by the Company or reasons for the cessation of such employment, and inure to the benefit of your administrators, executors, heirs and assigns, although your obligations are personal and may be performed only by you. The Company may assign this letter and its rights and interests, together with its obligations, hereunder (a) in connection with any sale, transfer or other disposition of all or substantially all of its assets or business(es), whether by merger, consolidation or otherwise; or (b) to any wholly owned subsidiary of the Company or as collateral to one or more lenders of the Company or its subsidiaries or affiliates. This letter shall also be binding upon and inure to the benefit of the Company and its subsidiaries, successors and assigns, and the rights of the Company hereunder are enforceable by its subsidiaries or affiliates, which are the intended third party beneficiaries hereof and no other third party beneficiary is so otherwise intended. |
| • | Severability. If any portion of this letter is held invalid or inoperative, the other portions of this letter shall be deemed valid and operative and, so far as is reasonable and possible, effect shall be given to the intent manifested by the portion held invalid or inoperative. |
If the terms of this letter agreement are acceptable to you, please sign where indicated below.
Sincerely,
| /s/ David Peacock |
| David Peacock |
| Chief Executive Officer |
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ACCEPTANCE
By signing below, I accept this letter agreement on the terms outlined above and acknowledge that my continued employment with the Company will be on an at-will basis.
| /s/ George Johnson | October 31, 2026 | |||
| George Johnson | Date |
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Exhibit B
Form of General Release
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (the “Agreement”) is entered into by and between George Johnson (“Employee”), on the one hand, and Advantage Sales & Marketing LLC, a Nevada limited liability company (the “Company”), on the other hand.
WHEREAS, Company employed Employee pursuant to that certain amended and restated letter agreement dated as of ______, 2026, as amended or otherwise modified from time to time (the “Employment Agreement”);
WHEREAS, Employee’s employment and all of Employee’s positions with Company and its subsidiaries and affiliates terminated effective [DATE] (the “Termination Date”);
WHEREAS, Employee seeks to obtain the payments and benefits provided under the Employment Agreement;
WHEREAS, Employee acknowledges that Employee has received all accrued wages, bonus, vacation/paid time-off and any other compensation due as of the Termination Date; provided, however, that Employee understands Employee may subsequently receive a separate check for reimbursement of reasonable business expenses in accordance with Company policies; and
WHEREAS, capitalized terms used, but not defined in this Agreement, shall have the meanings ascribed to such terms in the Employment Agreement.
NOW THEREFORE, in an effort to put any and all disputes behind the parties, for and in consideration of the mutual covenants contained herein and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties have agreed to settle finally and forever any and all claims between them of any nature whatsoever relating to, or arising from Employee’s employment by Company and/or the termination of that employment.
1. Effective Date. This Agreement shall not become effective unless and until (i) the Company has received this Agreement signed by Employee without modification; and (ii) the seven (7)-day revocation period referenced herein has expired and Employee has not revoked Employee’s assent to this Agreement, and shall thereafter be effective as of the date such revocation period terminates without exercise (the “Effective Date”).
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2. Severance Pay and Benefits. Provided that (i) the Effective Date has occurred; (ii) Employee has not revoked Employee’s assent to this Agreement; and (iii) Employee has returned all Company property (including without limitation any and all confidential and proprietary information) issued to Employee in connection with Employee’s employment with the Company, the Company shall provide Employee with the [Non-CIC Severance Benefits][CIC Severance Benefits] set forth in the Employment Agreement, payable at the times set forth in, and subject to the terms and conditions of, the Employment Agreement.1 In addition, to the extent not already paid, and subject to the terms and conditions of the Employment Agreement, the Company shall pay or provide to Employee the Accrued Rights described in the Employment Agreement, subject to and in accordance with the terms thereof.
2.1 To the extent the payments set forth in Section 2 and its subsections paid by the Company to Employee are considered taxable income, they will be reported on a Form W-2 issued to Employee for the applicable year.
2.2 In the event the Company, after reasonable investigation, determines that Employee has materially breached Employee’s obligations under (i) this Agreement; (ii) the CPPSA; (iii) any restrictive covenants with the Company (including any restrictive covenants contained in the CPPSA) (the “Restrictive Covenants”); (iv) the confidentiality or non-disparagement obligations contained in the Employment Agreement or CPPSA; or (v) the Seventh Amended and Restated Agreement of Limited Partnership of Karman Topco L.P. as amended, supplemented or otherwise modified from time to time, (the “LP Agreement”), if applicable, Employee’s eligibility for any severance payments and benefits shall cease immediately.
2.3 Employee acknowledges that the foregoing severance pay and benefits exceed any earned wages or anything else of value otherwise owed to Employee by the Company.
| 1 | Note to Draft: Actual severance payments and benefits to be included here depending on circumstances of termination based on applicable section of the Employment Agreement, including if the termination is or could qualify as a Change in Control Qualifying Termination. |
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3. General Release of Claims.
3.1 Except for the obligations arising out of this Agreement and any claims that cannot be waived as a matter of law, in consideration of this Agreement and the other good and valuable consideration provided to Employee pursuant hereto, Employee, for Employee and on behalf of each and all of Employee’s respective legal predecessors, successors, assigns, fiduciaries, heirs, parents, spouses, companies and affiliates (all referred to as the “Employee Releasors”) hereby irrevocably and unconditionally releases, and fully and forever discharges and absolves Company, its parents, subsidiaries and affiliates (“Advantage Companies”) and each of their respective partners, officers, directors, managers, shareholders, members, agents, employees, heirs, divisions, attorneys, trustees, administrators, executors, representatives, predecessors, successors, assigns, related organizations and related employee benefit plans (collectively, the “Company Releasees”), of, from and for any and all claims, rights, causes of action, demands, damages, rights, remedies and liabilities of whatsoever kind or character, in law or equity, known or unknown, suspected or unsuspected, past, present, or future, that the Employee Releasors have ever had, may now have, or may later assert against the Company Releasees whether or not arising out of or related to Employee’s employment with Company or the termination of Employee’s employment by Company (hereinafter referred to as “Employee’s Released Claims”), from the beginning of time up to and including the Effective Date, including without limitation, any claims, debts, obligations, and causes of action of any kind arising under any (i) contract including but not limited to the Employment Agreement and any bonus or other compensation plan, (ii) any common law (including but not limited to any tort claims) or (iii) any federal, state or local statutory law including, without limitation, any law which prohibits discrimination or harassment on the basis of sex, race, national origin, veteran status, age, immigration or marital status, sexual orientation, disability, or on any other basis, including without limitation, those arising under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Older Workers’ Benefit Protection Act, the Americans with Disabilities Act, the Employee Retirement Income Security Act, any state or local wage and hour laws (to the fullest extent permitted by law), and/or any state or local laws which prohibit discrimination or harassment of any kind; provided, however, that Employee’s release does not waive, release or otherwise discharge any claim or cause of action that cannot legally be waived, including, but not limited to, any claim for workers’ compensation benefits and unemployment benefits, any claims for indemnity under the bylaws of the Company, as provided for by state law or under any applicable indemnification agreement or insurance policy with respect to Employee’s liability as an employee, director or officer of the Company, claims to any benefit entitlements vested as the date of separation of Employee’s employment pursuant to written terms of any employee benefit plan of the Company or its affiliates and Employee’s claims for any breach of the Company’s executory obligations under the Employment Agreement.
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3.2 Employee represents and warrants that Employee has brought no complaint, claim, charge, action or proceeding against any of the Advantage Companies in any jurisdiction or forum, nor will Employee, from the Effective Date forward, encourage any other person or persons in doing so. Employee covenants and agrees never to pursue any judicial proceedings against the Company Releasees asserting any of the Employee’s Released Claims and (notwithstanding the above representation and warranty) to dismiss forthwith any such proceedings initiated to date. Employee shall not bring any complaint, claim, charge, action or proceeding to challenge the validity of this Agreement or encourage any other person or persons in doing so. Notwithstanding the foregoing, nothing herein shall prevent Employee from filing or from cooperating in any charge filed with a governmental agency; provided, however, Employee acknowledges and agrees that Employee waiving the right to any monetary recovery should any agency (such as the Equal Opportunity Commission or any similar state or local agency) pursue any claim for Employee’s benefit. Further, nothing herein shall prevent Employee from challenging the validity of the release of Employee’s claims, if any, under the Age Discrimination in Employment Act.
3.3 Except with respect to a breach of obligations arising out of this Agreement, if any, and to the fullest extent permitted by law, execution of this Agreement by the parties operates as a complete bar and defense against any and all of Employee’s Released Claims.
4. Waiver of Unknown Claims. Employee expressly acknowledges that Employee has read and understood the following language contained in Section 1542 of the California Civil Code:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, AND THAT IF KNOWN BY HIM OR HER WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
But for the obligations arising from this Agreement, having reviewed this provision, Employee nevertheless hereby voluntarily waives and relinquishes any and all rights or benefits Employee may have under section 1542, or any other statutory or non-statutory law of similar effect. Thus, Employee expressly acknowledges this Agreement is intended to and does include in its effect, without limitation, all claims Employee does not know or suspect to exist in Employee’s favor at the time of signing this Agreement, and that this Agreement extinguishes any such claims. Employee warrants that Employee has consulted counsel and/or has had the opportunity to consult with counsel about this Agreement and specifically about the waiver of section 1542 (or other state law of similar effect) and that Employee understands the section 1542 (or other state law of similar effect) waiver and freely and knowingly enters into this Agreement. Employee
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acknowledges that Employee may later discover facts different from or in addition to those Employee now knows or believes to be true regarding the matters released or described in this Agreement, and even so, Employee agrees that the releases contained in this Agreement shall remain effective in all respects notwithstanding any later discovery of any different or additional facts.
5. No Admissions. By signing this Agreement, the Company does not admit to any wrongdoing or legal violation by the Company or the Company Releasees.
6. Cooperation. Employee hereby agrees to cooperate with and provide requested assistance to Company with respect to any claim, cause of action, litigation, or other matter involving the Company, in which: (a) Employee (i) has significant knowledge, or (ii) was intimately involved, during the course of Employee’s employment, and (b) such requested assistance and/or cooperation is reasonably necessary and appropriate. For the avoidance of doubt, nothing in this Section 6 is intended to require Employee to provide anything but truthful and accurate information or testimony in the event Employee is asked for information or called to testify.
7. Return of Information and Property. Employee represents that as of the date of Employee’s execution of this Agreement, Employee has returned to the Company, all Company property, equipment, confidential information, records, electronically stored data and other materials relating to Employee’s employment, including tools, documents, papers, computer software, passwords and other identification materials, ID cards, keys, credit cards, personal computers, tablets, cell phones, and/or instruction manuals. This obligation applies to all materials relating to the affairs of the Company or any of its customers, clients, vendors, employees, or agents that may be in Employee’s possession or control. All such Company property must be returned by Employee in order for Employee to commence receiving the severance pay and benefits provided under Section 2 hereof.
8. Compliance with Prior Restrictive Covenants. Employee hereby reaffirms Employee’s obligations under the Restrictive Covenants.
9. Remedy for Breach.
9.1 Employee acknowledges that Employee’s breach of the obligations contained in this Agreement would cause the Company irreparable harm that could not be reasonably or adequately compensated in damages in an action at law. If Employee breaches or threatens to breach any of the provisions contained in this Agreement, the Company shall be entitled to an injunction, without bond, restraining Employee from committing such breach. The Company’s right to exercise its option to obtain an injunction shall not limit its right to any other remedies for breach of any provision of this Agreement.
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9.2 Employee agrees that Employee’s obligations under this Agreement shall be absolute and unconditional.
9.3 The foregoing shall in no way limit the Company’s rights under Section 2.2 of this Agreement.
10. Other Rights & Obligations. Nothing in this Agreement shall limit any rights or obligations of the Employee under the LP Agreement or any other agreement pertaining to Employee’s ownership of Units (as defined in the LP Agreement).
11. Confidentiality. Employee agrees the terms and conditions of this Agreement shall be confidential and shall not be disclosed except (as applicable) (i) as required by subpoena or otherwise by law; (ii) to an accountant or tax preparer for the purposes of preparing tax returns only; (iii) to Employee’s attorney; or (iv) to Employee’s spouse; provided, however, that Employee advises the person receiving such information of the confidentiality obligations required as to such information, and such person commits to keep such information confidential on terms no less stringent than the terms of this Agreement. Further, if Employee receives a subpoena, court order, or other compulsory process requiring disclosure of the terms of this Agreement, Employee shall provide written notice to the Company so as to afford the Company a reasonable opportunity to seek a protective order, to the fullest extent permitted by law. If application for a protective order is made promptly by the Company, Employee shall not disclose the terms of this Agreement prior to receiving a court order or consent of the Company.
12. Employee Representations. Employee represents and agrees that Employee (a) has suffered no injuries or damages in the course and scope of Employee’s employment with the Company that Employee did not already report to the Company; (b) fully understands all terms of this Agreement and is signing it voluntarily and with full knowledge of its significance; and (c) is not relying and has not relied upon any representation or statement made by the Company or its agents, representatives or attorneys, with regard to the subject matter, basis or effect of this Agreement or otherwise, other than as specifically stated in this Agreement.
13. Notice. All notices or other communications hereunder shall be provided in accordance with the “Notices” provision in the Employment Agreement.
14. No Modification. No modification to any term or provision contained in this Agreement shall be binding upon any party unless made in writing and signed by both parties.
15. Severability. If any provision of this Agreement is held to be unenforceable for any reason, all of the remaining parts of the Agreement shall remain in full force and effect.
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16. No Assignment. Each party represents Employee or it has not assigned any portion of the Employee’s Released Claims to any third party.
17. Choice of Law. This Agreement shall be governed by the laws of the State of South Carolina, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction.
18. Entire Agreement. This Agreement and the Employment Agreement (together with the documents referred to herein and therein, including without limitation the Restrictive Covenants) supersede all prior agreements between the parties with respect to their subject matter, and are a complete and exclusive statement of the terms of the agreement between the parties with respect hereto and thereto.
19. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be considered to have the force and effect of an original. Any counterpart signature transmitted by facsimile or by sending a scanned copy by email or similar electronic transmission shall be deemed an original signature.
20. Successors and Assigns. This Agreement shall bind and shall inure to the benefit of the successors and assigns of each party. With respect to Employee, this Agreement shall also bind and inure to the benefit of Employee’s heirs and assigns.
21. Delivery by Facsimile or Email. This Agreement, and any amendments hereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment, shall be treated in all manner and respects as an original agreement or instrument and shall be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto shall re-execute original forms thereof and deliver them to all other parties (with any costs associated with such request and delivery to be assumed by the requesting party). No party hereto shall raise the use of a facsimile machine or email to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of a facsimile machine or email as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.
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22. ADEA Provisions and Notification. In compliance with the requirements of the Age Discrimination in Employment Act (ADEA), as amended by the Older Workers’ Benefit Protection Act of 1990, Employee acknowledges by Employee’s signature below that, with respect to the rights and claims waived and released herein under the ADEA, Employee has read and understands this Agreement and specifically understands the following:
22.1 That Employee is advised to consult with an attorney before signing this Agreement;
22.2 That Employee is releasing the Company Releasees from, among other things, any claims which Employee might have against any of them pursuant to the ADEA as amended;
22.3 That the releases contained in this Agreement do not cover any rights or claims that may arise after the date on which Employee executed this Agreement;
22.4 That Employee has been given a period of twenty-one (21) days in which to consider this Agreement but if Employee elects to forego any portion of the twenty-one (21) day period Employee understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one (21) day period; and
22.5 That Employee may revoke this Agreement during the seven (7) day period following the date of Employee’s execution of this Agreement by giving written notice of said revocation in accordance with the notice provision of this Agreement, and that this Agreement will not become binding and effective until the seven (7) day revocation period has expired.
23. Dispute Resolution. All disputes under this Agreement shall be governed by the “Arbitration” provision in the Employment Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the dates set forth below.
| Dated:_________, 20___ | ||||||
| George Johnson | ||||||
| Advantage Sales & Marketing LLC | ||||||
| Dated:_________, 20___ | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
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