Term Sheet for Employment Agreement with Apratim Purakayastha (“Executive”)
Chief Technology Officer
Chief Executive Officer
Boston, Massachusetts; however, it is understood that Executive will travel to various office locations as required to perform Executive’s duties.
Executive acknowledges and agrees that this offer of employment is contingent upon the closing (the “Closing”) of the transactions contemplated by that certain merger agreement, dated October 12, 2020, by and between Churchill Capital Corp II (“Churchill”) and Software Luxembourg Holding S.A. (“Skillsoft”). and there is no guarantee the Closing will occur. This term sheet shall become effective on the date on which the Closing occurs (the “Effective Date”).
$450,000, less applicable withholdings, to be paid semi-monthly.
With respect to each fiscal year Executive is employed by Churchill or any of its subsidiaries (collectively, the “Company”), Executive shall be eligible to participate in an annual cash bonus program in which other senior executives at the Company participate, pursuant to which Executive will be eligible to earn a target annual bonus equal to 75% of Executive’s salary, subject to a maximum payout and other details to be established as soon as practicable after the Effective Date.
Notwithstanding the foregoing, the target annual bonus for the fiscal year in which the Closing occurs will equal the sum of (a) 100% of Executive’s salary, multiplied by a fraction, the numerator of which is the number of days in such fiscal year during the period beginning on the first day of such fiscal year and ending on the day immediately preceding the date on which the Closing occurs, and the denominator of which is 365, plus (b) 75% of Executive’s salary, multiplied by a fraction, the numerator of which is the number of days in such fiscal year beginning on the date on which the Closing occurs and ending on the last day of such fiscal year, and the denominator of which is 365.
Executive is eligible to participate in the Company’s benefits plans and programs consistent with what the Company makes available to its other senior executives, including an executive physical, and paid time off, subject to the Company’s vacation policy.
As a condition of employment, Executive will be required to sign the Restrictive Covenants Agreement attached hereto as Annex II.
(A) In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason (each as defined on Annex I attached hereto), Executive will be entitled to (i) accrued salary and other accrued benefits and (ii) 12 months’ base salary and benefits continuation.
(B) In the event Executive’s employment is terminated by the Company without Cause or by Executive for Good Reason within the 12 month period following a Change in Control (as defined in the Churchill Capital Corp II 2020 Omnibus Incentive Plan), Executive will be entitled to 12 months’ base salary and benefits continuation, (ii) a pro rata target bonus for the year in which termination occurs, (iii) target bonus for the fiscal year in which such termination occurs and (iv) accelerated vesting of outstanding equity awards.
The severance payments set forth in paragraphs (A) and (B) above are contingent upon Executive’s execution and non-revocation of a release of claims.
The Company agrees to indemnify Executive and hold Executive harmless to the maximum extent provided or allowable under the Company’s organizational documents against and in respect of any and all actions, suits, proceedings, claims, demands, judgments, costs, expenses (including reasonable attorney’s fees), losses and damages resulting from Executive’s good faith performance of Executive’s duties and obligations to the Company during the term of employment.
As soon as practicable following the Effective Date, but not more than thirty (30) days following the Effective Date, but not more than thirty (30) days following the Effective Date, subject to approval by the Company’s board of directors, Executive will be granted the following pursuant to the terms set forth in an award agreement:
(iii)259,000 options that will vest (a) 25% on the first anniversary of the Effective Date and (ii) the remaining 75% will vest ratably over the following 12 quarters, in each case subject to Executive’s continued employment through each vesting date.
The award agreement will include non-competition and non-solicitation clauses applicable during employment and for 12 months thereafter.
Notwithstanding anything in this term sheet to the contrary, in the event that (A) there is a change of ownership or effective control or change in the ownership of a substantial portion of the assets of the Company (within the meaning of Section 280G of the Internal Revenue Code of 1986, as amended (the “Code”) and (B) any payment or benefit made or provided to Executive or to Executive’s benefit in connection with this term sheet or otherwise is determined to be subject to any excise tax (“Excise Tax”) imposed by Section 4999 of the Code, then such payment or benefit shall be reduced to the minimum extent necessary to avoid imposition of such tax, but only if such reduction would cause the amount to be retained by Executive, to be greater than would be would be the case if Executive were required to pay such excise tax.
I agree that I will not disclose the terms of this term sheet or the Restrictive Covenants Agreement, except to my immediate family and my financial and legal counsel and advisors or as may be required by law or ordered by a court. I further agree that any disclosure to my financial and legal counsel and advisors will only be made after such counsel and advisors acknowledge and agree to maintain the confidentiality of this term sheet and its terms.
I hereby affirm and acknowledge that I am aware of the contingent nature of the Closing. I acknowledge and agree that this offer of employment is contingent upon the Closing, and there is no guarantee the Closing will occur. In the event the Closing does not occur, this term sheet will be null and void ab initio.
This term sheet, along with the Restrictive Covenants Agreement, sets forth the terms of my employment with the Company and supersedes any prior representations or agreements, whether written or oral, between myself and any other representative of the Company or Skillsoft and shall be governed by the laws of the State of Delaware without regard to its conflict of laws principles. This term sheet may not be modified or amended except by a written agreement, signed by an officer of the Company and by myself.
/s/ Apratim Purakayastha5/15/2021
/s/ Peter Seibold5/15/2021
Peter Seibold, on behalf of ChurchillDate
“Cause” shall mean the occurrence of any one of the following, as determined by the Board of Directors of the Company (the “Board”): (i) gross negligence or willful misconduct in the performance of, or Executive’s abuse of alcohol or drugs rendering Executive unable to perform, the material duties and services required for Executive’s position with the Company, which neglect or misconduct, if remediable, remains unremedied for 15 days following written notice of such by the Company to Executive; (ii) Executive’s conviction or plea of nolo contendere for any crime involving moral turpitude or a felony; (iii) Executive’s commission of an act of deceit or fraud intended to result in Executive’s personal and unauthorized enrichment; or (iv) Executive’s material violation of the written policies of the Company or any of its affiliates as in effect from time to time, Executive’s breach of a material obligation of Executive’s to the Company pursuant to Executive’s duties and obligations under the Company’s organizational documents, or Executive’s material breach of a material obligation of Executive’s to the Company or any of its affiliates pursuant to this term sheet or any award or other agreement between Executive and the Company or any of its affiliates. No act or failure to act, on Executive’s part, shall be considered “willful” unless it is done, or omitted to be done, by Executive in bad faith or without reasonable belief that Executive’s action or omission was in the best interests of the Company; and provided further that no act or omission by Executive shall constitute Cause hereunder unless the Company has given detailed written notice thereof to Executive, and Executive has failed to remedy such act or omission, as determined by the Board in its discretion. By way of clarification, but not limitation, for purposes of this definition of the term Cause, materiality shall be determined relative to this term sheet and Executive’s employment, rather than the financial status of the Company as a whole.
“Good Reason” shall mean any of the following events or conditions occurring without Executive’s express written consent prior to such termination, provided that Executive shall have given notice of such event or condition asserted to give rise to Good Reason within a period not to exceed 60 days after the initial existence of such event or condition, and the Company has not remedied such event or condition within 60 days after receipt of such notice, and Executive shall have terminated employment within 30 days after the period in which the Company is entitled to cure the asserted Good Reason: (i) a material demotion, material reduction in responsibility or material change in reporting, or the assignment of duties to Executive that are substantially inconsistent with Executive’s position; (ii) a reduction in Executive’s base salary or Executive’s then-current target bonus percentage; (iii) the Company’s failure to pay material compensation when due and payable; or (iv) a relocation of Executive’s principal place of employment by more than 50 miles.
Restrictive Covenants Agreement
As a condition of my employment with Churchill Capital Corp II (“Churchill”) its subsidiaries, affiliates, successors or assigns (together with Churchill, the “Company Group”, and in consideration of my employment with the Company Group, my receipt of the compensation now and hereafter paid to me by the Company Group, and my access to and use of the Company Group’s Confidential Information (as defined below), I agree to the following:
I agree that, during the term of my employment with the Company Group, I will not engage in any other employment, occupation or consulting directly or indirectly related to the business in which the Company Group is now involved or becomes involved during the term of my employment, nor will I engage in any other activities that conflict with my obligations to the Company Group; provided this will not preclude me from engaging in other civic, charitable, non-profit, industry or trade associations, or religious activities that do not conflict with the business interests of the Company Group and do not otherwise compete with the business of the Company Group that are disclosed to the Company Group in accordance with the terms set forth in Section 7(A)(1).
(1) be employed or engaged in (x) any other business or undertaking (except a Permitted Investment (as defined herein)) or (y) any civic, charitable, non-profit, industry or trade associations, religious or other activity unless such undertaking (i) does not interfere with my duties to the Company Group, does not conflict with the business interests of the Company Group and does not otherwise compete with the business of the Company Group (and is disclosed to the Company Group) or (ii) is set forth on Exhibit E or is approved by the Board prior to the date of this Agreement or from time to time thereafter (such approval, in the case of charitable, pro bono or educational activities, not to be unreasonably withheld).
(a)comprising not more than three percent (3%) of the shares or other capital of a company (whether listed or not); provided, that the relevant company in which the investment is made either (i) does not carry on a business which competes with the Company Group or (ii) does compete with the Company Group, but the investment is a passive investment in shares or other securities of the relevant company which are listed on a securities exchange; or
(b)which is approved or consented to by the Board.
(1)is, or was, in the 12 months immediately prior to the termination date of my employment with the Company Group, a client or prospective client of the Company Group; and
(2) with whom I had business dealings during the course of my employment during the 12 month period prior to the termination date of my employment with the Company Group to cease to do business with or reduce its service or business relationship with the Company Group. Nothing in this Section 7(B) shall prohibit the solicitation or conducting of business not in direct or indirect competition with the business of the Company Group.
(1)each restriction shall be read and construed independently of the other restrictions so that if one or more are found to be void or unenforceable as an unreasonable restraint of trade or for any other reason the remaining restrictions shall not be affected; and
(2) if any restriction is found to be void but would be valid and enforceable if some part of it were deleted or reformed, the restriction shall apply with the deletions or reformations that are necessary to make it valid and enforceable.
[Signature Page Follows]
Date: 5/15/2021/s/ Apratim Purakayastha
Name of Employee (typed or printed)