UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 13, 2023
Advantage Solutions Inc.
(Exact name of Registrant as Specified in Its Charter)
Delaware | 001-38990 | 83-4629508 | ||
(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
15310 Barranca Parkway, Suite 100 Irvine, California |
92618 | |||
(Address of Principal Executive Offices) | (Zip Code) |
Registrant’s Telephone Number, Including Area Code: (949) 797-2900
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Class A common stock, $0.0001 par value per share | ADV | NASDAQ Global Select Market | ||
Warrants exercisable for one share of Class A common stock at an exercise price of $11.50 per share | ADVWW | NASDAQ Global Select Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On March 13, 2023, Brian Stevens, the Chief Financial Officer and Chief Operating Officer of Advantage Solutions Inc. (the “Company”), entered into a Transition Services Agreement (the “Transition Agreement”) with the Company’s subsidiary, Advantage Sales & Marketing LLC (“ASM”), pursuant to which Mr. Stevens will transition out of his current role effective as of March 27, 2023, and continue on with ASM as a non-executive employee assisting on certain development projects during a transition period ending August 1, 2023 (unless Mr. Stevens’ employment terminates sooner for any reason).
Stevens Transition Agreement
The Transition Agreement provides that Mr. Stevens is eligible for continued employment with ASM through August 1, 2023 at his current compensation through such date, subject to earlier termination for any reason. Upon the occurrence of the transition date as a result of the expiration of the transition period on August 1, 2023 or his termination by ASM without cause, Mr. Stevens will be eligible to receive (a) severance payments in an amount equal to his base salary for 18 months following the date of separation, (b) 18 months of continued health insurance coverage at active employee rates, and (c) accelerated vesting of a portion of his outstanding and unvested time-based restricted stock units and stock option awards that were originally scheduled to vest on October 3, 2023, as if he had remain continuously employed with ASM through such date. Mr. Steven’s receipt of his severance benefits is subject to and conditioned upon his non-revocation of a separation agreement and general release attached to the Transition Agreement and his continued compliance with any restrictive covenants.
The foregoing description of the Transition Agreement is qualified in its entirety by reference to the full text of the Transition Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated by reference herein.
Appointment of Christopher Growe as Chief Financial Officer
On March 13, 2023, the Company approved the appointment of Christopher Growe as Chief Financial Officer, effective as of March 27, 2023.
Mr. Growe has served as a managing director since 2007 at Stifel, a global wealth management, investment banking and investment advisory company. As a managing director in the consumer and retail sector, Mr. Growe provided analyst coverage of food and tobacco stocks and offered guidance to institutional investors. Prior to joining Stifel, Mr. Growe was an analyst covering food, beverage and tobacco stocks with A.G. Edwards. He spent his early career in marketing at Anheuser-Busch and holds bachelor’s and master’s degrees in business administration from Saint Louis University.
There are no arrangements or understandings between Mr. Growe and any other persons pursuant to which he was appointed as an officer, and there are no family relationships between him and any director or executive officer of the Company. Mr. Growe has no direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Growe Employment Agreement
In connection with the appointment of Mr. Growe as Chief Financial Officer of the Company, the Company and Mr. Growe entered into an Employment Agreement (the “Growe Agreement”), pursuant to which Mr. Growe will commence employment on March 27, 2023 (unless otherwise mutually agreed between Mr. Growe and the Company) and will receive an annual base salary of $560,000 and a cash signing bonus of $100,000 (the “Signing Bonus”). Mr. Growe will also be eligible to receive a target bonus of 100% of his base salary and an annual equity award for 2023 under the Company’s 2020 Incentive Award Plan (the “Plan”) with an aggregate grant date fair value of 100% of his base salary. For fiscal year 2024 and thereafter, Mr. Growe will be eligible for an annual equity award under the Plan with an aggregate grant date fair value of 200% of his salary.
As provided in the Growe Agreement, the Company will also make a one-time equity grant of options to Mr. Growe under the Plan upon the commencement of his employment with the Company. The grant of options shall have a value of $1,600,000 determined using the Black-Scholes formula based on the closing stock price of the Company’s Class A common stock on the first business day of the calendar month following the month Mr. Growe commences employment with the Company. Such grant will vest over five years, in increments of one-fifth of the options on each of the five anniversary dates of the Effective Date; provided, however, that the options shall become fully vested upon a Change in Control (as defined in the Plan). The options shall have an exercise price of (1) the greater of (x) $2.50 or (y) the fair market
value per share of the Company’s Class A common stock on the date of grant, with respect to 31.25% of the options; (2) $5.00, with respect to another 31.25% of the options; and (3) $10.00, with respect to the last 37.5% 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 per share of the Company’s Class A common stock 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.
If the Company terminates Mr. Growe’s employment without cause or if Mr. Growe resigns for good reason, the Company will, subject to his execution and non-revocation of a general release and continued compliance with any restrictive covenants, pay him severance benefits of: (i) continued payment of base salary for 12 months following termination, (ii) payment to Mr. Growe of the Company’s portion of post-employment Company-sponsored healthcare insurance premiums under COBRA for 12 months following termination, (iii) pro-rated vesting of outstanding time-based equity awards scheduled to vest on the next applicable vesting date based on the number of days worked during the then-current vesting period, and (iv) pro-rated vesting of outstanding performance-based equity awards scheduled to vest on the next applicable vesting date based on the number of days worked during the then-current performance period (with performance stock units vesting based on actual performance). In addition, Mr. Growe’s vested and outstanding stock options will remain exercisable until the first anniversary of his termination date (or, if earlier, the original expiration date of such options). Mr. Growe is also entitled to certain severance benefits in the event his employment is terminated due to his death and disability.
Under the terms of the Growe Agreement, Mr. Growe has agreed not to disparage the Company during his employment term or at any time thereafter.
The foregoing description of the Growe Agreement is qualified in its entirety by reference to the full text of the Growe Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated by reference herein.
Item 7.01 | Regulation FD Disclosure. |
On March 14, 2023, the Company issued a press release regarding the executive transition matters described in this Current Report on Form 8-K. A copy of the press release is furnished as Exhibit 99.1 to this Current Report on Form 8-K. The information being furnished pursuant to Item 7.01 of this Current Report on Form 8-K, including the accompanying Exhibit 99.1, shall not be deemed to be “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to the liability of that section, and shall not be incorporated by reference into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except as shall be expressly set forth by specific reference in such filing.
Cautionary Note Regarding Forward-Looking Statements
Certain information contained in this Current Report on Form 8-K, including any information furnished in connection therewith, that may be considered forward-looking statements within the meaning of the federal securities laws, including statements regarding the expected terms of severance arrangements, the commencement of employment by certain officers, and the future performance of the Company’s business. Forward-looking statements generally relate to future events or the Company’s future financial or operating performance. These forward-looking statements generally are identified by the words “may,” “should,” “expect,” “intend,” “will,” “would,” “estimate,” “anticipate,” “believe,” “predict,” “potential” or “continue,” or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward looking statements.
Detailed risk factors affecting the Company are set forth in the section titled “Risk Factors” in the Annual Report on Form 10-K filed by the Company with the Securities and Exchange Commission (the “SEC”) on March 1, 2023 and in its other filings made from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and the Company assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise, except as required by law.
Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
Exhibit No. |
Description | |
10.1 | Transition Agreement dated March 13, 2023, by and between Brian Stevens and Advantage Sales & Marketing LLC. | |
10.2 | Employment Agreement dated March 13, 2023, by and between Advantage Solutions Inc. and Christopher Growe. | |
99.1 | Press Release issued by Advantage Solutions Inc. dated March 14, 2023. | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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.
ADVANTAGE SOLUTIONS INC. | ||||||
Date: March 14, 2023 | By: | /s/ Dean Kaye | ||||
Dean Kaye | ||||||
Chief Financial Officer – North America |
Exhibit 10.1
TRANSITION AGREEMENT
THIS TRANSITION AGREEMENT (this Agreement), is entered into as of March 13, 2023 (the Effective Date), by and between Brian Stevens (the Executive) and Advantage Sales & Marketing LLC (the Company).
WHEREAS, the Company and the Executive are parties to that certain Third Amended and Restated Employment Agreement dated September 30, 2022 (the Employment Agreement); and
WHEREAS, the Company desires to continue to continue to employ the Executive, and the Executive desires to continue employment with the Company, through the end of the Term (as defined below), pursuant to the terms and conditions of this Agreement.
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. No Conflicts. The Executive represents that (a) the Executive is entering into this Agreement voluntarily and that the Executives 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 Executives 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 Companys business.
2. Term of Employment; Term Expiration. Subject to earlier termination as set forth herein, the term of the Executives employment under this Agreement shall commence on the Effective Date and continue until August 1, 2023 (the Term). The actual date of Executives termination of employment pursuant to the terms of this Agreement for any reason (including expiration of the Term) shall be referred to herein as the Transition Date.
3. Employment Duties; Role Conversion.
3.1 During the portion of the Term commencing on the Effective Date and ending on March 27, 2023 or, if earlier, the date on which the Executives successor as Chief Financial Officer commences employment with the Company (such date, the Role Conversion Date), the Executive shall continue to be employed by the Company as the Chief Financial Officer and Chief Operating Officer on the terms set forth in this Agreement. During the portion of the Term commencing on the Role Conversion Date and ending on the Transition Date, the Executive shall continue to be employed by the Company in a non-executive capacity on various corporate development projects for the Company on the terms set forth in this Agreement. Upon the Role Conversion Date, the Executive shall automatically cease to serve as Chief Financial Officer and Chief Operating Officer of the Company and shall be removed from the role of an officer of the Company subject to Rule 16b-3 promulgated under the Securities Exchange Act of 1934, as amended (the Exchange Act).
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3.2 During the Term, the Executive shall perform such duties consistent with the responsibilities reasonably assigned to the Executive by the Chief Executive 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 Companys subsidiaries or affiliates as the Company may deem appropriate, without any additional compensation therefor. During the Term, the Executive will use the Executives best efforts to advance the business interests of, and devote substantially all of the Executives working time, attention and efforts to the business and affairs of the Company (which shall include service to its affiliates). In addition, during the Term, the Executive shall use his reasonable best efforts to advance the interests of the Company and facilitate the successful transition of his responsibilities to the individual who succeeds him as Chief Financial Officer in whatever reasonable capacity may be requested by the Chief Executive Officer of the Company or the board of directors of the Companys indirect parent entity (the Board).
3.3 During the Term, the Executive may engage in appropriate civic, charitable or religious activities of the Executives own choosing, provided that such activities do not materially interfere with the Executives performance of the Executives duties and responsibilities hereunder (including the Restrictive Covenants (as defined below)) and are not otherwise contrary to the Companys interests, in each case as determined by the Company in its reasonable good faith business judgement. Except as set forth above, during the Term 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.
4. Place of Employment. The Executives principal place of employment during the Term shall be at the Companys headquarters in Orange County, California or such other place as reasonably determined by the Company in accordance with this Agreement, and from time to time Executive may be required to travel to other locations in the performance of Executives responsibilities under this Agreement.
5. Compensation; Reimbursement. During the Term, the Company shall pay or provide to the Executive, in full satisfaction for the Executives services provided hereunder, the following:
5.1 Base Salary; No Bonus Opportunity. During the Term, the Company shall continue to pay the Executive a base salary of $750,000 per year (Base Salary), 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 Executive acknowledges and agrees that the Executive shall not be eligible to earn a bonus under the Companys bonus plan in effect from time to time (including, for the avoidance of doubt, in respect of fiscal year 2023).
5.2 Equity. During the Term, all of the Executives unvested equity awards previously granted by Advantage Solutions Inc. shall continue to vest and be administered in accordance with the terms thereof and any governing documents (including the Advantage Solutions Inc. 2020 Incentive Award Plan and any applicable award agreements). Upon the Transition Date, except as set forth in Section 6.3 below, the Executives outstanding equity awards will cease vesting and any unvested equity awards shall terminate.
5.3 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 Companys expense reimbursement policies for senior executives, which are subject to the review and approval of the Board or the Committee.
5.4 Benefits.
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(a) During the Term, the Executive shall be entitled to participate in all health, life, disability and other benefits, such as private club membership, 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 Companys 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 Companys 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 of the Board.
5.5 Automobile Allowance. During the Term, the Company will provide the Executive with an automobile allowance in an amount not to exceed $2,000 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.
5.6 Vacation and Sick Time. During the Term, the Executive shall not earn, accrue, or receive vacation or floating holidays. During the Term, the Executive shall be entitled to take paid vacation on an as needed basis, subject to the approval of the person to whom the Executive reports, so long as the Executives absence from work does not interfere with the performance of the Executives job duties and the interests of the Company. Notwithstanding this provision, during the Term, the Executive shall be eligible for sick time in accordance with the Companys 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.
5.7. Retention Payments. Pursuant to the Employment Agreement, the Executive was entitled to receive a Retention Payment in the amount of $300,000 (the Retention Payment) on December 31, 2023 (the Retention Measurement Date), subject to the condition that Executive remains continuously employed by the Company through the Retention Measurement Date, subject to any required withholdings under the Payroll Policies. Notwithstanding the foregoing, upon the Transition Date, the Executive (or the Executives legal representative, as applicable) shall be entitled to receive a pro-rated amount of the Retention Payment for the period beginning on January 1, 2023 and ending on the later of August 1, 2023 or the Transition Date, and Company shall pay such pro-rated amount within ten (10) business days. For illustration purposes only, if the Transition Date occurs on August 1, 2023, Executive would be entitled to receive a Retention Payment of $175,069 ((213 days divided by 365 days) multiplied by $300,000).
6. Termination. The following shall apply in the event Executives 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 Executives 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 Executives medical records to the Company and use the Executives best efforts to cause the Executives own physicians to be available to discuss the Executives 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 Executives employment hereunder shall automatically terminate as of the close of business on the date of Executives death.
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(b) If the Transition Date occurs as a result of a termination of Executives employment as a result of the Executives Disability or death, the Executive (or Executives legal representative, as applicable) shall be entitled to receive: (A) the Executives Base Salary then in effect at the time of such termination, through the later of August 1, 2023 or the Transition Date; (B) reimbursement for any unreimbursed business expenses properly incurred by the Executive in accordance with Section 5.4; (C) employee benefits that Executive was receiving at such time through the Transition Date; (D) the opportunity to elect benefits continuation post-employment, which opportunity the Executive may be entitled under the Benefit Plans as of the Transition Date pursuant to the terms thereof (the amounts described in clauses (A) through (D) hereof being referred to as the Accrued Rights); and (E) any pro-rated Retention Payment payable pursuant to the terms of Section 5.7 hereto (the Accrued Retention Bonus).
(c) In addition to the Accrued Rights and Accrued Retention Bonus, if the Transition Date occurs as a result of a termination of the Executives employment as a result of the Executives Disability or death, the Company will, subject to Section 6.5, pay to the Executive or the Executives legal representative the Executives Base Salary then in effect at the time of such termination for twelve (12) months following the later of August 1, 2023 or the Transition Date, less any amounts received by the Executive under the Companys disability policies, if applicable. Such payments will be made in equal installments over such twelve (12) month period in accordance with the Payroll Policies, Section 9 and the terms of the Release (as defined below). The Executive will also, in the case of a termination for Disability, be entitled to payment to the Executive of the Companys 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 Transition Date (excluding, for purposes of calculating cost, an employees ability to pay premiums with pre-tax dollars)) to the extent permissible under the Companys 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), and subject to Executives valid election to continue healthcare coverage under COBRA, during such twelve (12) 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 twelve (12) month period, the continuation of such health insurance coverage and premium payment by the Company shall cease.
(d) Following the occurrence of the Transition Date on account of the Executives Disability or upon the Executives death, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executives employment with the Company except as set forth in this Section 6.1.
(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 Executives 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 Executives 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 Executives employment is terminated by the Company for Cause, the Executive shall be entitled to receive the Accrued Rights. Following a termination of the Executives employment by the Company for Cause, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executives employment with the Company except as set forth in this Section 6.2. The Company shall have Cause for termination of the Executives employment if any of the following has occurred; provided, however, that the Company represents and warrants that there is no basis for Cause as of the Effective Date:
(a) the Executives dishonesty or gross negligence in the performance of the Executives 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 Executives willful or continued failure to perform the Executives 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 Executives intentional misconduct in connection with the performance of the Executives 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 Executives 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 Qualifying Termination.
(a) The Company may terminate the Executives employment hereunder without Cause at any time upon written notice to the Executive. In addition, Executives employment hereunder will terminate upon the expiration of the Term. If the Transition Date occurs as a result of (1) the expiration of the Term, or (2) the termination of the Executives employment by the Company without Cause during the Term (either such termination of employment, a Qualifying Termination), the Executive shall be entitled to receive the Accrued Rights and any Accrued Retention Bonus.
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(b) In addition to the Accrued Rights and any Accrued Retention Bonus, in the event of the occurrence of the Transition Date as a result of a Qualifying Termination, subject to Section 6.5, the Executive will be entitled to receive as severance Executives Base Salary then in effect at the time of such termination for a period of eighteen (18) months following the Transition Date (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 (as defined below). The parties agree and acknowledge that this Section 6.3(b) of the Agreement provides Executive contractual rights to the same amount of severance payments that Executive is entitled to pursuant to Section 6.3 of the Employment Agreement.
(c) Subject to Section 6.5, in the event of the occurrence of the Transition Date as a result of a Qualifying Termination, the Executive will also be entitled during the Severance Period to payment to the Executive of the Companys portion of post-employment Company-sponsored health insurance premiums under COBRA (at the same levels and costs in effect on the Transition Date (excluding, for purposes of calculating cost, an employees ability to pay premiums with pre-tax dollars)) and subject to Executives valid election to continue healthcare coverage under COBRA, to the extent permissible under the Companys 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 and premium payment by the Company shall cease.
(d) Subject to Section 6.5, in the event of the occurrence of the Transition Date as a result of a Qualifying Termination, such a portion of the Executives outstanding and unvested time-based restricted stock units and stock option awards granted to the Executive on October 3, 2022 (the Subject Awards) and scheduled to vest on October 3, 2023 shall vest as if the Executive had remain continuously employed with the Company through such date (the Equity Acceleration Benefit). Subject to Section 6.5, the Equity Acceleration Benefit shall occur as of the Release Effective Date (as defined below). Subject to Section 6.5, Executive and/or his affiliated trusts shall be permitted to retain, subject to the terms and conditions of grant documents and the Eighth Amended and Restated Agreement of Limited Partnership of Karman Topco L.P. as amended, supplemented or otherwise modified from time to time, (1) all vested Common Series C Units previously granted to Executive, and (2) all Common Series C-2 Units previously granted to Executive. Company further agrees and acknowledges that it shall not purchase such units Common Series C Units or Common Series C-2 Units by means of a promissory note.
(e) Following a Qualifying Termination 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 otherwise set forth in Section 5.7.
6.4 Resignation for Any Reason. The Executive may terminate Executives employment for any 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. Upon such a termination, the Executive will be entitled to receive the Accrued Rights and any Accrued Retention Bonus. Following a termination of the Executives employment by the Executive for any reason, the Executive shall have no further rights to any compensation or any other benefits except as set forth in this Section 6.4.
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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 (other than the Accrued Rights or the Accrued Retention Bonus), the Executive must (a) execute and deliver to the Company a general release, substantially in the form attached hereto as Exhibit A (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 Executives obligations under this Agreement and the Restrictive Covenant(s). In the event that the Executive breaches the Executives obligations hereunder or under the Restrictive Covenant(s), any and all payments or benefits provided for in Sections 6.1 or 6.3 (other than the Accrued Rights or the Accrued Retention Bonus) shall cease immediately. The date on which the Executives 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 Transition Date. The Executive agrees to provide the Company with any documentation requested by it to evidence such resignation(s) promptly following the Companys 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 Executives 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 Executives 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 Executives employment, including tools, documents, papers, computer software, and passwords and other identification materials; provided, however, that the Company will use commercially reasonable efforts to transfer Executives mobile phone number to him. 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 Executives possession or control.
7. Non-Disparagement. Subject to Section 12 below, the Executive will not, during the Term and for a period of twenty-four (24) months following the Transition Date: (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 Companys 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 nondisparagement 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 Code of Conduct. The Executive has reviewed, is familiar with, and agrees to abide by the Companys Code of Business Conduct and 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)). 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. For purposes of Section 409A of the Code (including, without limitation, for purposes of Treasury Regulation Section 1-409A-1(b)(2)(iii) and the application of the short-term deferral exception), each payment under this Agreement will be treated as a separate payment and any right to a series of installment payments pursuant to this Agreement will be treated as a right to a series of separate payments. 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 (1) day following the Executives 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. In the event the Release Effective Date does not occur on or prior to the date that is thirty (30) days following the Executives date of termination, the Executive shall not be entitled to any of the payments under Section 6.1 (in the case of termination for Disability) or 6.3 (other than the Accrued Rights or the Accrued Retention Bonus). Payment of the severance compensation that becomes payable hereunder shall commence on the Companys first payroll date that is coincident with or immediately following the date that is thirty (30) days following the Executives 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. 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/her 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).
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(a) For notices and communications to the address of the Companys principal executive offices and to the attention of the Companys General Counsel.
(b) For notices and communications to the Executive, to the Executives 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).
(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, in case of subclauses (ii), (iii) and (iv), that 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.
(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, provided that the advisers determination shall be made based upon substantial authority within the meaning of Section 6662 of the Code, (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 Executives 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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(d) In the event it is later determined that to implement the objective and intent of this Section 11, (i) a greater reduction in the Total Payments should have been made, the excess amount shall be returned promptly by Executive to the Company or (ii) 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 imposition of an excise tax under Section 409A 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 (including but not limited to, the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the National Labor Relations Board or the U.S. Department of Justice) in accordance with the provisions of and rules promulgated under Section 21F of the Exchange Act 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). Further, nothing herein will prevent the Executive from participating in activity permitted by Section 7 of the National Labor Relations Act or from filing an unfair labor practice charge with the NLRB. 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 Executives 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.
13. General.
13.1 Governing Law; Arbitration. This Agreement shall be governed by the laws of the State of California, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction.
Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be settled exclusively by arbitration, conducted before a panel of three (3) arbitrators in Irvine, California, in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association then in effect. The arbitrators shall not have the authority to add to, detract from, or modify any provision hereof nor to award punitive damages to any injured party. The arbitrators shall have the authority to order back-pay, severance compensation, reimbursement of costs, including those incurred to enforce this Agreement, and interest thereon. A decision by a majority of the arbitration panel shall be final and binding. Judgment may be entered on the arbitrators award in any court having jurisdiction. Responsibility for bearing the cost of the arbitration shall be borne by the Company. Notwithstanding anything herein to the contrary, the Company or the Executive shall be entitled to bring an action for equitable relief, including injunctive relief and specific performance in any court of 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 Executives employment by the Company or reasons for the cessation of such employment, and inure to the benefit of the Executives 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 Employment Agreement); and is a complete and exclusive statement of the terms of the agreement between the parties with respect thereto.
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13.9 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.
13.10 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 Executives employment regardless of the circumstances of or reason for such termination.
[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 Sales & Marketing LLC | ||
By: | /s/ David Peacock | |
Name: David Peacock | ||
Title: Chief Executive Officer | ||
EXECUTIVE: | ||
By: | /s/ Brian Stevens | |
Name: Brian Stevens |
[Signature Page to Transition Agreement]
EXHIBIT A
Form of General Release
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General. Release (the Agreement) is entered into by and between Brian Stevens (Employee), on the one hand, and Advantage Sales & Marketing LLC, a California limited liability company (the Company), on the other hand.
WHEREAS, Company employed Employee pursuant to that certain Transition Agreement dated as March [__], 2023, as amended or otherwise modified from time to time (the Transition Agreement);
WHEREAS, Employees employment and all of Employees positions with Company and its subsidiaries and affiliates terminated effective [DATE] (the Transition Date);
WHEREAS, Employee seeks to obtain the payments and benefits provided under the Transition Agreement;
WHEREAS, Employee acknowledges that Employee has received all accrued wages, bonus, vacation/paid time-off and any other compensation due as of the Transition 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 Transition 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 Employees 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 Employees 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 Transition Date, the Executive shall not be eligible to receive any of the severance payments or benefits under the Transition Agreement.
2. Severance Pay and Benefits. Provided that (i) the Effective Date has occurred within thirty (30) days following the Transition Date; (ii) Employee has not revoked Employees assent to this Agreement; (iii) Employee has returned all Company property (including without limitation any and all confidential and proprietary information) issued to Employee in connection with Employees employment with the Company as required by Section 6.9 of the Transition Agreement; and (iv) Executive has not breached any of the Restrictive Covenants:
2.1 Company shall pay Employee the gross amount of [$AMOUNT], which represents [APPLICABLE TIME PERIOD] ( ) months (the Severance Period) of Employees current Base Salary under the Transition 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 Transition Agreement or this Agreement, the Severance Pay shall be paid in over the Severance Period in accordance with the Companys Payroll Policies. The first installment of the Severance Pay shall be made on the First Payment Date.
2.2 Company shall pay Employee the following: eighteen (18) months of the Companys portion of post-employment company sponsored health insurance premiums under COBRA (at the same levels and costs in effect on the Transition Date (excluding, for purposes of calculating cost, an employees ability to pay premiums with pre-tax dollars)) (Severance Benefits), to the extent permissible under the Companys health insurance plans, including, if permitted and still maintained by the Company and/or Benicomp (subject to applicable taxes and withholdings).
(a) The Company will make the first monthly Severance Benefits payment to Employee as soon as administratively possible following (i) the Effective Date, and (ii) receipt by Company of notification that Employee has made the necessary election of benefits continuation under COBRA. Unless terminated earlier pursuant to the Transition Agreement or at the election of Employee, the Company will continue to pay Employee the monthly installment of the Severance Benefits for the Severance Period, so long as the Company receives notification that the Employee is continuing to pay the necessary premiums to the carrier or COBRA administrator.
(b) Employee will be responsible for paying the full amount of the premium, plus applicable administrative fees, to the carrier or COBRA administrator.
2.3 Employee shall be entitled to the Equity Acceleration Benefit (as defined in the Transition Agreement) as of the Effective Date.
2.3 The Severance Pay, Severance Benefits and Equity Acceleration Benefit 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.
2.4 In the event the Company, after reasonable investigation, determines that Employee has breached Employees obligations under (i) this Agreement; (ii) any Confidentiality, Non-Solicitation and/or Non-Competition Agreement to which Employee and any of the Advantage Companies (as defined below) are parties, including, without limitation those agreements between Employee and Advantage Solutions Inc. tied to grant dates of January 4, 2021, March 11, 2022 and October 3, 2022; (iii) the Restrictive Covenants, including, without limitation, that Restrictive Covenants Agreement dated April 9, 2018 by and between Employee and Kamran Topco L.P.; (iv) the confidentiality or non-disparagement obligations contained in the Transition Agreement; or (v) the Eighth 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, Employees eligibility for the Severance Pay, Severance Benefits and Equity Acceleration Benefit 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.
2.5 Employee acknowledges that the Severance Pay, Severance Benefits and Equity Acceleration Benefit exceeds 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 Employees 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 Employees employment with Company or the termination of Employees employment by Company (hereinafter referred to as Employees 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 Transition 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 Employees 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.
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 Employees 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; 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 Employees benefit. Further, nothing herein shall prevent Employee from challenging the validity of the release of Employees 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 Employees 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 TO HIM OR HER THAT 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 Employees 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 Employees 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 Employees 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 Employees 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 Employees 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, or become entitled to the Equity Acceleration Benefit, provided under Section 2 hereof. |
8. | Compliance with Restrictive Covenants. Employee hereby reaffirms Employees obligations under the Restrictive Covenants. |
9. | Remedy for Breach. |
(a) Employee acknowledges that Employees 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 Companys 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 Employees obligations under this Agreement shall be absolute and unconditional.
(c) The foregoing shall in no way limit the Companys rights under Section 2.4 of this Agreement.
10. | Other Rights and Obligations. Nothing in this Agreement shall limit any rights or obligations of the Employee under the LP Agreement or any other agreement pertaining to Employees ownership of Units (as defined in the LP Agreement). Nothing in this Agreement prevents Executive from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that Executive has reason to believe is unlawful. |
11. | Employee Representations. Employee represents and agrees that Employee (a) has suffered no injuries or damages in the course and scope of Employees 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 address of the Companys principal executive offices and to the attention of the Companys General Counsel.
(b) For notices and communications to the Executive, to the Executives 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. Each party represents Employee or it has not assigned any portion of the Employees Released Claims to any third party. |
16. | Choice of Law; Dispute Resolution. This Agreement shall be governed by the laws of the State of California, without regard to any conflicts of laws principles thereof that would call for the application of the laws of any other jurisdiction. This Agreement shall be subject to the provisions of Section 13.1 of the Transition Agreement. |
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 Transition 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. | 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. |
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 Employees 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 Employees 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 day period Employee understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one day period; and
21.5 That Employee may revoke this Agreement during the seven (7) day period following the date of Employees 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: |
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Name: Brian Stevens | ||||||
Advantage Sales & Marketing LLC | ||||||
Dated: ______________, 20__ | By: |
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Name: |
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Title: |
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Exhibit 10.2
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this Agreement), is dated as of March 13, 2023, by and between Advantage Solutions Inc., a Delaware corporation (the Company), and Christopher Growe (the Executive).
WHEREAS, the Company desires to obtain the benefit of the experience, services, skills, and abilities of the Executive in connection with the operation of the Company and desires to employ the Executive upon the terms and conditions set forth herein, and the Executive is willing and able to accept such employment on such terms and conditions;
WHEREAS, it is the desire of the Company to assure itself of the services of Executive following the Effective Date (as defined below) and thereafter on the terms herein provided by entering into this Agreement; and
WHEREAS, it is the desire of Executive to provide services to the Company following the Effective Date and thereafter 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 March 27, 2023, unless otherwise mutually agreed between the Company and the Executive (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 Executives 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 Executives 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 Companys business.
2. Employment Duties. During the Term (as defined below), the Executive shall serve as the Companys 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 Companys subsidiaries or affiliates as the Company may deem appropriate, without any additional compensation therefor. Executive acknowledges and agrees that the Executives 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 Executives best efforts to advance the business interests of, and devote substantially all of Executives 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 Executives own choosing, provided that such activities do not materially interfere with Executives performance of Executives duties and responsibilities hereunder (including the Restrictive Covenants) and are not otherwise contrary to the Companys 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.
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3. Term of Employment; Term Expiration.
3.1 The term of the Executives 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 Executives principal place of employment shall initially 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 Companys 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 Executives responsibilities under this Agreement.
5. Compensation; Reimbursement. During the Term, the Company shall pay or provide to the Executive, in full satisfaction for the Executives services provided hereunder, the following:
5.1 Base Salary. During the Term, the Company shall pay the Executive a base salary of $560,000 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 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 Executives Base Salary (the Target Bonus Opportunity) pursuant to the terms of the Executive Bonus Plan approved by the Companys Board of Directors (the Board) or the 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 in their sole and absolute discretion. If Executive earns a bonus in accordance with the Executive Bonus Plan, Executives 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 Companys 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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5.3 Signing Bonus. In consideration for Executive commencing employment with the Company, on the first regular payroll date following the Effective Date, the Company shall pay to Executive a one-time cash bonus in an amount equal to $100,000, less applicable withholdings and deductions (the Signing Bonus). 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 repay the after-tax value of the Signing Bonus 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 repay the Signing Bonus. For the avoidance of doubt, if Executive is terminated without Cause or resigns for Good Reason, or if Executives employment is terminated due to his death of Disability, then Executive does not have to repay any of the Signing Bonus.
5.4 Equity.
(a) Initial Option Grant. As soon as reasonably practicable following the Effective Date and subject to the approval of the Compensation Committee, the Company will grant to Executive, pursuant to the Companys 2020 Incentive Plan, as amended and restated or otherwise modified from time to time (the Plan), an initial option grant in the aggregate amount of $1,600,000. The share quantity of such grant will be determined using the Black-Scholes formula based on the closing stock price of the Companys Class A common stock on the first (1st) business day of the calendar month following the Executives commencement of employment with the Company. Such grant will vest over five years, in increments of one-fifth of the options on each of the first five anniversary dates of the Effective Date; provided, however, that the options shall become fully vested upon a Change in Control (as defined in the Plan). The options shall have an exercise price of (1) the greater of (x) $2.50 or (y) the fair market value per share of the Companys Class A common stock on the date of grant, with respect to 31.25% of the options; (2) $5.00, with respect to another 31.25% of the options; and (3) $10.00, with respect to the last 37.5% 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 per share of the Companys Class A common stock 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.
(b) Initial Annual Equity Grant. For the 2023 fiscal year the Executive will be eligible for an initial equity grant with an aggregate value of 100% of Executives Base Salary, subject to the approval and discretion of the Compensation Committee and subject to the terms and conditions of the Companys organizational documents, any applicable plan documents, and individual award agreements, as such documents and agreements may be amended from time to time.
(c) Subsequent Annual Equity Grants. For the 2024 fiscal year and subsequent fiscal years, the Executive will be eligible for an annual equity grant with an aggregate value of up to 200% of Executives Base Salary, subject to the approval and discretion of the Compensation Committee and subject to the terms and conditions of the Companys organizational documents, any applicable plan documents, and individual award agreements, as such documents and agreements may be amended from time to time.
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 Companys expense reimbursement policies for senior executives, which are subject to the review and approval of the Board or the Compensation Committee.
5.6 Benefits.
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(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 Companys 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 Companys 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.
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 Executives absence from work does not interfere with the performance of the Executives job duties and the interests of the Company. Notwithstanding this provision, the Executive shall be eligible for sick time in accordance with the Companys 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.
5.8 Legal Fees. The Company shall reimburse the Executive for legal fees expended or incurred in connection negotiating the terms of this Agreement up to $10,000.
6. Termination. The following shall apply in the event Executives 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 Executives 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 Executives medical records to the Company and use the Executives best efforts to cause the Executives own physicians to be available to discuss the Executives 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 Executives employment hereunder shall automatically terminate as of the close of business on the date of Executives death.
(b) If the Executives employment is terminated as a result of the Executives Disability or death, the Executive (or Executives legal representative, as applicable) shall be entitled to receive: (A) the Executives 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).
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(c) In addition to the Accrued Rights and Accrued Bonus, if the Executives employment is terminated as a result of the Executives Disability or death, the Company will, subject to Sections 6.5, 6.9 and 9, pay to the Executive or the Executives legal representative the Executives Base Salary then in effect at the time of such termination for six (6) months following such termination, less any amounts received by the Executive under the Companys 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). Subject to Section 6.5, the Executive will also, in the case of a termination for Disability, be entitled to payment to the Executive of the Companys 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 employees ability to pay premiums with pre-tax dollars)) to the extent permissible under the Companys 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 Executives 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.
(d) Following the termination of the Executives employment on account of the Executives Disability or upon the Executives death, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executives employment with the Company except as set forth in this Section 6.1.
(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 Executives 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).
6.2 For Cause. The Company may terminate the Executives 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 Executives employment is terminated by the Company for Cause, the Executive shall be entitled to receive the Accrued Rights. Following a termination of the Executives employment by the Company for Cause, the Executive shall have no further rights to any compensation or any other benefits with respect to the Executives employment with the Company except as set forth in this Section 6.2. The Company shall have Cause for termination of the Executives employment if any of the following has occurred:
(a) the Executives dishonesty or gross negligence in the performance of the Executives 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;
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(b) the Executives willful or continued failure to perform the Executives 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;
(c) the Executives intentional misconduct in connection with the performance of the Executives 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;
(d) the Executives 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 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 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 Executives employment hereunder without Cause at any time upon written notice to the Executive and the Executive may terminate Executives 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 Executives 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 6.5, the additional benefits provided in this Section 6.3.
(b) In addition to the Accrued Rights and any Accrued Bonus, if the Executives employment is terminated by the Company without Cause or Executive terminates Executives employment for Good Reason during the Term, subject to Section 6.5, 6.9 and 9:
(i) The Executive will be entitled to continue to receive as severance Executives Base Salary then in effect at the time of such termination 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).
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(ii) With respect to each outstanding equity award, the Executive shall be eligible to vest in an additional number of Executives 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 paragraph, they shall vest immediately effective as the date of the Executives 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 Executives termination shall be extended through the earlier to occur of (i) the first anniversary of the Executives date of termination and (ii) the expiration date of such stock option.
(iii) Subject to Section 6.5, the Executive will also be entitled during the Severance Period to payment to the Executive of the Companys 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 employees ability to pay premiums with pre-tax dollars)) and subject to Executives valid election to continue healthcare coverage under COBRA, to the extent permissible under the Companys 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.
(c) Following a termination of the Executives 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.
6.4 Resignation Without Good Reason. The Executive may terminate Executives 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 Executives 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 Executives 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;
(c) the movement by the Company, without the Executives consent, of the Executives principal place of employment to a site that is more than 50 miles from the Executives 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 Companys Chief Executive Officer) to meet and perform duties;
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(d) the diminution or other reduction in the title of the Executives position with the Company; or
(e) any material breach by the Company of this Agreement.
Notwithstanding the foregoing, the Executive shall not have Good Reason to terminate the Executives 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-day period following provision of notice, (3) the Company fails to cure such event constituting Good Reason within such thirty-day period; and (4) and such resignation for Good Reason occurs following the expiration of the foregoing cure period.
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 A (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 Executives obligations under this Agreement and the Restrictive Covenant(s). In the event that the Executive breaches the Executives 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 Executives 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 Companys 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 Executives 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.
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6.9 Return of Property and Information. On or before the termination of Executives 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 Executives 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 Executives 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 Companys 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.
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 Executives 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 Executives position, including the Companys 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 Companys Employee Handbook and Code of Business Conduct & 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 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 Executives 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 Executives 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 Executives 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). Payment of the severance compensation that becomes payable hereunder shall commence on the Companys first payroll date that is coincident with or immediately following the date that is thirty (30) days following the Executives 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. 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 address of the Companys principal executive offices and to the attention of the Companys General Counsel.
(b) For notices and communications to the Executive, to the Executives 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, in case of subclauses (ii), (iii) and (iv), that 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.
(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, provided that the advisers determination shall be made based upon substantial authority within the meaning of Section 6662 of the Code, (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 Executives 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, (i) a greater reduction in the Total Payments should have been made, the excess amount shall be returned promptly by Executive to the Company or (ii) 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 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 (including but not limited to, the U.S. Securities and Exchange Commission, the U.S. Commodity Futures Trading Commission, the National Labor Relations Board (the NLRB) or the U.S. Department of Justice) 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). Further, nothing herein will prevent the Executive from participating in activity permitted by Section 7 of the National Labor Relations Act or from filing an unfair labor practice charge with the NLRB. 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 Executives 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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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.
Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, this Agreement shall be settled exclusively by arbitration, conducted before a panel of three (3) arbitrators in St. Louis, Missouri, in accordance with the National Rules for the Resolution of Employment Disputes of the American Arbitration Association then in effect. The arbitrators shall not have the authority to add to, detract from, or modify any provision hereof nor to award punitive damages to any injured party. The arbitrators shall have the authority to order back-pay, severance compensation, reimbursement of costs, including those incurred to enforce this Agreement, and interest thereon. A decision by a majority of the arbitration panel shall be final and binding. Judgment may be entered on the arbitrators award in any court having jurisdiction. Responsibility for bearing the cost of the arbitration shall be determined by the arbitrator and shall be proportional to the arbitrators decision on the merits. Notwithstanding anything herein to the contrary, the Company or the Executive shall be entitled to bring an action for equitable relief, including injunctive relief and specific performance in any court of 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.
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 Executives employment by the Company or reasons for the cessation of such employment, and inure to the benefit of the Executives 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.
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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; 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 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 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 Executives employment regardless of the circumstances of or reason for such termination.
[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 Employment Agreement]
EXHIBIT A
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 Employment Agreement dated as March 13, 2023, as amended or otherwise modified from time to time (the Employment Agreement);
WHEREAS, Employees employment and all of Employees 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 Employees 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 7-day revocation period referenced herein has expired and Employee has not revoked Employees 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 Employees 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 Employees employment with the Company as required by Section 6.9 of the Employment Agreement:
2.1 Company shall pay Employee the gross amount of [$AMOUNT], which represents [APPLICABLE TIME PERIOD] ([ ]) months (the Severance Period) of Employees 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 payable at the times set forth in, and subject to the terms and conditions of, the Employment Agreement.
2.2 Company shall pay Employee the following: [APPLICABLE TIME PERIOD] ([ ]) months of the Companys 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 employees ability to pay premiums with pre-tax dollars)) (Severance Benefits), to the extent permissible under the Companys health insurance plans including, if permitted and still maintained by the Company and/or Benicomp (subject to applicable taxes and withholdings).
(a) The Company will make the first monthly Severance Benefits payment to Employee as soon as administratively possible following (i) the Effective Date, and (ii) receipt by Company of notification that Employee has made the necessary election of benefits continuation under COBRA. Unless terminated earlier pursuant to the Employment Agreement or at the election of Employee, the Company will continue to pay Employee the monthly installment of the Severance Benefits for the Severance Period, so long as the Company receives notification that the Employee is continuing to pay the necessary premiums to the carrier or COBRA administrator.
(b) Employee will be responsible for paying the full amount of the premium, plus applicable administrative fees, to the carrier or COBRA administrator.
2.4 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.
2.5 In the event the Company, after reasonable investigation, determines that Employee has breached Employees obligations under (i) this Agreement or the Employment Agreement; or (ii) the Restrictive Covenants; if applicable, Employees 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.
2.6 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.
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 Employees 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 Employees employment with Company or the termination of Employees employment by Company (hereinafter referred to as Employees 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.
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 Employees 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 Employees benefit. Further, nothing herein shall prevent Employee from challenging the validity of the release of Employees 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 Employees 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, Executives 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) Executives 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 Companys 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 Companys 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 THAT 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 Employees 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 Employees 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 Employees 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 Employees 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 Employees 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. |
8. | Compliance with Prior Restrictive Covenants. Employee hereby reaffirms Employees obligations under the Restrictive Covenants. |
9. | Remedy for Breach. |
(a) Employee acknowledges that Employees 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 Companys 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 Employees obligations under this Agreement shall be absolute and unconditional.
(c) The foregoing shall in no way limit the Companys rights under Section 2.4 of this Agreement.
10. | Employee Representations. Employee represents and agrees that Employee (a) has suffered no injuries or damages in the course and scope of Employees 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. |
11. | 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, to the address of the Companys principal executive office and to the attention of the Companys General Counsel.
(b) For notices and communications to the Executive, to the Executives most recent address or e-mail address on file with the Company. Any party hereto may, by notice to the other, change its address for receipt of notices hereunder.
12. | 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. |
13. | 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. |
14. | No Assignment. Employee has not assigned any portion of the Employees Released Claims to any third party. |
15. | Governing Law; Arbitration. This Release shall be subject to the provisions of Section 13.1 of the Employment Agreement. |
16. | 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 Section 12 and 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). |
17. | 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. |
18. | 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 Employees heirs and assigns. |
19. | 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. |
20. | 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 Employees 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: |
20.1 That Employee is advised to consult with an attorney before signing this Agreement;
20.2 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;
20.3 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;
20.4 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 day period Employee understands and agrees that Employee does so voluntarily and is waiving the balance of the twenty-one day period; and
20.5 That Employee may revoke this Agreement during the seven (7) day period following the date of Employees 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.
By:
Dated: ______________, 20___
By:
Name: Christopher Growe
Advantage Solutions Inc.
Dated: ______________, 20__
Name:
Title:
Exhibit 99.1
Advantage Solutions Names New Chief Financial Officer, Chief Human Resources Officer and Chief Communications Officer
IRVINE, Calif., March 14, 2023 (GLOBE NEWSWIRE) Advantage Solutions Inc. (NASDAQ: ADV) (Advantage or the Company), a leading provider of outsourced sales and marketing services to consumer goods manufacturers and retailers, today announced the hires of Chris Growe as chief financial officer, Pamela Morris-Thornton as chief human resources officer and Kelli Hammersmith as chief communications officer, all reporting to Advantage CEO Dave Peacock. Morris-Thornton and Hammersmith will begin their roles March 20. Growes appointment is effective March 27. He succeeds Brian Stevens, who will continue to advise the company through July.
Growe joins Advantage with more than 25 years of finance and investment experience, most recently at global wealth management, investment banking and investment advisory company Stifel. As a managing director in the consumer and retail sector, Growe covered food and tobacco stocks and offered guidance to institutional investors. He is the recipient of multiple awards for his work at Stifel, including several Financial Times/StarMine Awards for earnings estimates and stock picking. He has also been honored by The Wall Street Journal with the Best on the Street Survey Award. Prior to Stifel, Growe was an analyst covering food, beverage and tobacco stocks with A.G. Edwards. He spent his early career in marketing at Anheuser-Busch and holds bachelors and masters degrees in business administration from Saint Louis University. As CFO, Growe will lead all aspects of Advantages finance organization, including investor relations, accounting, payroll, treasury and tax.
Morris-Thornton brings deep experience across all segments of human resources over the course of her more than 25-year career. She joins Advantage from Panera Bread, where she was most recently vice president and head of diversity, equity and inclusion, overseeing the brands inclusion strategy and initiatives and responsible for building an inclusive culture, enhancing employee belonging and increasing the recruitment and promotion of diverse talent. She previously led Paneras corporate human resources, overseeing talent acquisition, executive recruiting and the HR business partner practice. Morris-Thornton spent her early human resources career at Graybar, where she led health and welfare plans, and at the Missouri Department of Mental Health, where she served as director of human resources. She holds a bachelors degree from Southern Illinois University-Edwardsville and a masters degree in human resources management from Webster University. Morris-Thornton will oversee all aspects of Advantages human resources function.
Hammersmith joins Advantage in a newly created role leading the corporate communications team and overseeing all aspects of the corporate narrative including internal, external and executive communications. She was most recently senior vice president and head of global executive and internal communications at Northern Trust where she led internal communications strategy and integrated storytelling, as well as CEO communications and executive engagement. She brings nearly two decades of communications experience to Advantage, including internal and leadership communications at Kohls and global people and diversity communications at Molson Coors Beverage Company. Hammersmith was a journalist in her early career, reporting for television stations in Peoria, Illinois, and Milwaukee, where she also served as a bilingual reporter. She is a graduate of Syracuse Universitys Newhouse School of Public Communications where she earned a bachelors degree in broadcast journalism with minors in Spanish and sociology.
Im excited to welcome Chris, Pam and Kelli to our leadership team and Im looking forward to collaborating with each of them on Advantages long-term strategy for growth, said Advantage Solutions CEO Dave Peacock. Their wide range of experiences in their fields and strong track records of consistently delivering results will be tremendous assets to Advantage as we work to drive transformation across the company.
About Advantage Solutions
Advantage Solutions (NASDAQ: ADV) is a leading provider of outsourced sales and marketing solutions to consumer goods companies and retailers. Our data- and technology-driven services which include headquarter sales, retail merchandising, in-store and online sampling, digital commerce, omnichannel marketing, retail media and others help brands and retailers of all sizes get products into the hands of consumers, wherever they shop. As a trusted partner and problem solver, we help our clients sell more while spending less. Headquartered in Irvine, California, we have offices throughout North America and strategic investments in select markets throughout Africa, Asia, Australia and Europe through which we serve the global needs of multinational, regional and local manufacturers. For more information, please visit advantagesolutions.net. |
Chris Growe
Chief Financial Officer | |
Pamela Morris-Thornton
Chief Human Resources Officer | ||
Kelli Hammersmith
Chief Communications Officer |
Forward-Looking Statements
Certain statements in this press release may be considered forward-looking statements within the meaning of the federal securities laws, including statements about expected leadership and the potential success of the Companys new leadership team. Forward-looking statements generally relate to future events or Advantages future financial or operating performance. These forward-looking statements generally are identified by the words may, should, expect, intend, will, would, could, estimate, anticipate, believe, predict, confident, potential or continue, or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks, uncertainties and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements.
These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by Advantage and its management at the time of such statements, are inherently uncertain. Factors that may cause actual results to differ materially from current expectations include, but are not limited to, market-driven wage changes or changes to labor laws or wage or job classification regulations, including minimum wage; the COVID-19 pandemic and the measures taken in response thereto; the availability, acceptance, administration and effectiveness of any COVID-19 vaccine; Advantages ability to continue to generate significant operating cash flow; client procurement strategies and consolidation of Advantages clients industries creating pressure on the nature and pricing of its services; consumer goods manufacturers and retailers reviewing and changing their sales, retail, marketing and technology programs and relationships; Advantages ability to successfully develop and maintain relevant omni-channel services for our clients in an evolving industry and to otherwise adapt to significant technological change; Advantages ability to maintain proper and effective internal control over financial reporting in the future; potential and actual harms to Advantages business arising from the Take 5 Matter; Advantages substantial indebtedness and our ability to refinance at favorable rates; and other risks and uncertainties set forth in the section titled Risk Factors in the Annual Report on Form 10-K filed by the Company with the Securities and Exchange Commission (the SEC) on March 1, 2023, and in its other filings made from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Advantage assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Media Contact
press@advantagesolutions.net
Investor Relations Contact
Kimberly Esterkin
Addo Investor Relations
investorrelations@advantagesolutions.net
310-829-5400
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