Execution Version
AMENDED AND RESTATED EMPLOYMENT AGREEMENT
THIS AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of February 1, 2023, 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 Employment Agreement dated as of January 16, 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:
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.
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or committees (whether or not the Executive receives any compensation therefor) without the prior written consent of the Company.
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.
compensation committee of the Board (the “Compensation Committee”), based on performance metrics to be established by the Board or the Compensation 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 Compensation Committee; provided, that, notwithstanding the foregoing, the Executive’s annual bonus with respect to 2023 shall be no less than 150% of the Executive’s Base Salary (i.e., $1,650,000). 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.
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(the “Plan”), a number of shares of common stock of the Company (the “Signing Shares”) equal to the ratio of (1) $3,000,000 to (2) the closing price per share of common stock on the Effective Date. In the event that Executive resigns his employment with the Company without Good Reason (as defined below) or is terminated by the Company for Cause (as defined below) on or prior to the twelve (12)-month anniversary of the Effective Date, then Executive hereby agrees to forfeit all of the Signing Shares (less any Signing Shares withheld to satisfy any tax withholding obligations) for no consideration (or, if Executive has sold any of the Signing Shares prior to such anniversary, repay to the Company the amount received by Executive in such sale) no later than thirty (30) days after the date of such resignation or termination of employment with the Company. Executive hereby authorizes the Company to immediately offset against and reduce any amounts otherwise due to Executive for any amounts in respect of the obligation to forfeit or repay the Signing Shares. For the avoidance of doubt, if Executive is terminated without Cause or resigns for Good Reason, Executive does not have to forfeit or repay any of the Signing Shares. The Company hereby agrees that the Executive will have the right to satisfy any tax withholding obligations resulting from the issuance of such Signing Shares through a sell-to-cover or share withholding arrangement, based on maximum applicable statutory tax rates.
$3,000,000.
be determined by the Committee after the end of the one-year performance period ending December 31, 2023. PSUs (x) at or below the target level of performance that are earned at the end of the performance period shall vest with respect to 33-1/3% of the shares of
common stock of the Company (each, a “Share”) earned thereunder on each of the first three anniversaries of the Effective Date and (y) any additional Shares that may be earned based on achievement above target level of performance (and are not forfeited in accordance with the terms of the Plan and related award agreement) shall vest on the third anniversary of the Effective Date, subject, in each case, to the Executive’s continued employment with the Company through the applicable vesting date.
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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.
the Executive’s continued employment with the Company to the applicable date, provided that the Options will become fully vested upon the earlier to occur of (i) the first date on which the Partners (as defined below) have sold Units (as defined below) with an aggregate value of not less than $2,100,000,000 at an average price corresponding to not less than $10.00 per Share (either directly or following an exchange of Units for Shares) and (ii) a Change in Control (as defined in the Plan). The Options shall have an exercise price of (1) $2.50, with respect to 2,000,000 of the Options; (2) $5.00, with respect to 2,750,000 of the Options; and (3) $10.00, with respect to 3,250,000 of the Options; provided, however, that in no event shall any of the Options be granted with an exercise price that is less than the fair market value of a Share on the date of grant. In all other respects, the Options shall be subject to the terms and conditions of the Plan, the applicable Option award agreement, and the other documents governing the Options. For purposes of this Section 5(d)(iv), each of “Partners” and “Units” shall have the meaning set forth in the Eighth Amended and Restated Agreement of Limited Partnership for Karman Topco L.P., dated as of September 7, 2020, as may be further amended and restated from time to time.
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 Compensation Committee.
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
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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.
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.
entitled to receive: (A) the Executive’s Base Salary then in effect at such 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 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”).
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.
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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:
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;
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).
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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.
compliance with the Executive’s obligations under this Agreement and the Restrictive Covenant(s). In the event that the Executive 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.
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.
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.
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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.
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Advantage Solutions Inc.
15310 Barranca Parkway, Suite 100
Irvine, CA 92618 Attn: General Counsel
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).
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.
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except to the extent the Company reasonably determines would result in the imposition of an excise tax under Section 409A of the Code.
(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.
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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.
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[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.
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| Its: | Executive Chair | |||
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| EXECUTIVE | |
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| David Peacock | |
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[Signature page to Amended and Restated Employment Agreement]
EXHIBIT A
PERMITTED BOARD ACTIVITIES
The Executive shall be permitted to maintain membership on the boards of directors of one publicly traded company one privately held company, and any number of non-profit organizations, in each case subject to the approval of the Board, which approval shall not be unreasonable withheld, conditioned, or delayed; provided, that the Executive’s continued membership on the board of directors of Stifel Financial Corp. shall be considered approved by the Board for purposes of this Exhibit A (as the Executive’s one publicly traded board).
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EXHIBIT B
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 Amended and Restated Employment Agreement dated as of February 1, 2023, 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.
thereafter be effective as of the date such revocation period terminates without exercise (the “Effective Date”).
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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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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.
“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.
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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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.
As to Employee:
[ ● ]
As to Company:
Advantage Solutions Inc.
15310 Barranca Parkway, Suite 100
Irvine, CA 92618 Attn: General Counsel
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understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one (21)-day period; and
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