Employment Agreement, dated as of November 6, 2016, by and between Duck Creek Technologies LLC and Eugene Van Biert, Jr
Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”), is made and entered into on this 6th day of November, 2016 (the “Effective Date”) by and between Duck Creek Technologies, LLC (the “Company”) and Eugene C. Van Biert, Jr. (the “Employee”).
R E C I T A L S:
Disco Topco Holdings (Cayman), L.P. (the “Issuer”) and the Company (collectively, and together with all other subsidiaries of the Issuer, the “Company Group”) are engaged in the software and the software as a service business. In furtherance of such business, the parties hereto desire to enter into this Agreement, effective as of the Effective Date.
NOW, THEREFORE, in consideration of the mutual covenants and obligations contained herein and the compensation provided for herein, and of other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Company and the Employee agree as follows:
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For the avoidance of doubt, the acquisition of Class A Units in the Issuer by Apax and its affiliates or Class B Units in the Issuer by Accenture and its affiliates shall not constitute a “Change of Control.”
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On the date hereof, the Employee shall enter into the “Restrictive Covenant Agreement”, attached hereto as Exhibit A.
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If the Employee breaches any of the covenants set forth in the Restrictive Covenant Agreement, the Employee shall not be entitled to receive any further compensation or benefits pursuant to this Section 7(b) from and after the date of such breach and the Employee shall be required to promptly repay any compensation the Employee received pursuant to this Section 7(b) prior to the date of such breach. Notwithstanding anything to the contrary contained herein, the Company shall have no obligation to pay the payments and provide the benefits set forth in this Section 7(b) unless, within sixty (60) days after the Termination Date, the Employee executes and delivers to the Company a release of claims in the form attached hereto as Exhibit B and the revocation period of such release expires.
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to the Employee’s home address reflected in the Company’s books and records, and if to Employee’s legal representative, to such Person at the address of which the Company is notified in accordance with this Section 15.
Duck Creek Technologies LLC
161 North Clark Street
Chicago, IL 60601
Attention: Michael Jackowski
with copy to, which shall not constitute notice to the Company
c/o Apax Partners, L.P.
601 Lexington Ave. 53rd Floor
New York, NY 10022
Each such notice, request, demand or other communication shall be effective (i) if given by mail, 72 hours after such communication is deposited in the mails with first class postage prepaid, addressed as aforesaid or (ii) if given by any other means, when delivered at the address specified in this Section 15. Delivery of any notice, request, demand or other communication by telefacsimile or email shall be effective when received if received during normal business hours on a business day. If received after normal business hours, the notice, request, demand or other communication will be effective at 10:00 a.m. on the next business day.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first indicated above.
Duck Creek Technologies LLC
By: Disco Topco Holdings (Cayman), L.P., its sole member
By: Disco (Cayman) GP Co., its general partner
By: /s/ Michael A. Jackowski
Name: Michael A. Jackowski
Title: Authorized Signatory
Solely for the purposes of Sections 5(f) and 5(g) of this Agreement:
Disco Topco Holdings (Cayman), L.P.
By: Disco (Cayman) GP Co., its general partner
By: /s/ Michael A. Jackowski
Name: Michael A. Jackowski
Title: Authorized Signatory
EMPLOYEE
/s/ Eugene C. Van Biert, Jr.
Name: Eugene C. Van Biert, Jr.
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Exhibit A
RESTRICTIVE COVENANTS AGREEMENT
In consideration of (a) my employment or continued employment by Duck Creek Technologies, LLC and/or any of its subsidiaries (the “Company” and, together with Disco Topco Holdings (Cayman), L.P. (the “Parent”) and all of its affiliates (other than any investors or equity holders in the Parent) collectively, the “Company Entities”), (b) my receipt of Class D Units pursuant to the Parent’s Amended and Restated Agreement of Limited Partnership, dated on or about August 1, 2016, (c) the provision by the Company Entities of trade secrets and confidential information to me, (d) the Company Entities’ introduction to me of their clients and customers, and other good and valuable consideration, the receipt and sufficiency of which I acknowledge, I agree to the terms and conditions of this Restrictive Covenants Agreement (this “Agreement”) as follows:
Proprietary Information. I agree that all information, whether or not in writing, concerning the Company Entities’ business, technology, business relationships, employee and consultant relationships or financial affairs that the Company Entities have not released to the general public (or is otherwise not known within the relevant trade or industry) and which I received during employment with the Company (“Proprietary Information”) is and will be the exclusive property of the Company Entities. By way of illustration, Proprietary Information may include information or material which has not been made generally available to the public (or otherwise known within the trade or relevant industry), such as: (a) corporate information, including plans, strategies, methods, policies, resolutions, negotiations or litigation; (b) marketing information, including strategies, methods, customer identities or other information about customers, prospect identities or other information about prospects, or market analyses or projections, customer lists, prospective customer lists and any customer and/or prospective customer list database; (c) financial information, including cost and performance data, debt arrangements, equity structure, investors and holdings, purchasing and sales data and price lists; and (d) operational and technological information, including plans, specifications, manuals, forms, templates, software, designs, methods, procedures, formulas, discoveries, inventions, improvements, concepts and ideas; and (e) personnel information, including personnel lists, reporting or organizational structure, resumes, personnel data, compensation structure, performance evaluations and termination arrangements or documents. Proprietary Information also includes information received in confidence by the Company Entities from their respective customers or suppliers or other third parties.
1. Recognition of Company’s Rights. I will not, at any time, without the Company’s prior written permission, either during or after my employment, disclose any Proprietary Information to anyone outside of the Company Entities other than in connection with the performance of my duties as an employee of the Company or any Company Entity, or use any Proprietary Information for any purpose other than the performance of my duties as an employee of the Company or any Company Entity. I will cooperate with the Company Entities and use my reasonable best efforts to prevent the unauthorized disclosure of all Proprietary Information. I will deliver to the Company all copies of Proprietary Information in my possession or control upon the earlier of a request by the Company or termination of my employment, except to the extent I am permitted to retain such information pursuant to Section 19 of this Agreement. Notwithstanding anything to the contrary in this Agreement or otherwise, I shall be permitted to disclose Proprietary information (i) to the extent necessary with respect to any litigation, arbitration or mediation involving this Agreement or any other agreement between myself and any Company Entity, including, but not limited to, the enforcement of such agreement, in the forum in which such litigation, arbitration or mediation properly takes place or (ii) as required by law, legal process or by any court, arbitrator, mediator or administrative or legislative body (including any
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committee thereof) with apparent jurisdiction over me; provided, in such event, to the extent legally permitted, I give the Company reasonable notice of such requirement and an opportunity to oppose such request (and I will reasonably cooperate with the Company in such opposition).
2. Rights of Others. I understand that the Company Entities are now and may hereafter be subject to nondisclosure or confidentiality agreements with third persons which require the Company Entities to protect or refrain from use of such third persons’ proprietary information. I agree to be bound by the non-disclosure or confidentiality terms of such agreements in the event I have access to such proprietary information and have knowledge of such agreements.
3. Commitment to Company Entities; Avoidance of Conflict of Interest. While an employee of the Company, I will devote my full business time and efforts to the business of the Company Entities and I will not engage in any other business activity that conflicts with my duties to the Company Entities. I will advise the General Counsel of the Company or his or her nominee at such time as any activity of either the Company Entities or another business presents me with a conflict of interest or the appearance of a conflict of interest as an employee of the Company. I will take whatever action is reasonably requested of me by the Company to resolve any conflict or appearance of conflict which it finds to exist. Notwithstanding the foregoing, during employment (and thereafter) I can manage my personal and family investments, engage in charitable and/or educational activities, including service on boards of directors of charitable and/or educational organizations, serve on industry advisory committees and/or boards and, to the extent approved by the board of directors of Parent, serve as a member of the board of directors or managers of any for-profit entity; provided that such activities do not interfere with my duties and responsibilities to the Company Entities.
4. Developments. I will make full and prompt disclosure to the Company of all Developments during the period of my employment that: (a) relate to the business of any Company Entity or any customer of or supplier to any Company Entity or any of the products or services being researched, developed, manufactured or sold by any Company Entity or which may be used with such products or services; or (b) result from tasks assigned to me by a Company Entity; or (c) result from the use of premises or personal property (whether tangible or intangible) owned, leased or contracted for by the Company Entity (collectively, “Company-Related Developments”). I acknowledge that all copyrightable Company-Related Developments are created by me on a “work for hire” basis. To the extent any such copyrightable work is deemed by a court not be a “work for hire” and with respect to all other Intellectual Property Rights in any Company-Related Developments, I hereby do assign and transfer and, to the extent any such assignment cannot be made at present, will assign and transfer, to the Company Entities and their successors and assigns all my right, title and interest in all such Company-Related Developments. “Developments” means inventions, discoveries, designs, developments, methods, modifications, improvements, processes, algorithms, databases, computer programs, formulae, techniques, trade secrets, graphics or images, and audio or visual works and other works of authorship, whether or not patentable or copyrightable that are created, made, conceived or reduced to practice by me (alone or jointly with others) or under my direction. “Intellectual Property Rights” means all patents, patent applications, trademarks and trademark applications, copyrights and copyright applications, trade secrets and other intellectual property rights in all countries and territories worldwide and under any international conventions.
To preclude any possible uncertainty, I have set forth on Appendix A attached hereto a complete list of Developments that I have, alone or jointly with others, conceived, developed or reduced to practice prior to the commencement of my employment with the Company that I consider to be my property or the property of third parties and that I wish to have excluded from the scope of this Agreement (“Prior Inventions”). If disclosure of any such Prior Invention would cause me to violate any prior confidentiality agreement, I understand that I am not to list such Prior Inventions in Appendix A but am only to disclose a cursory name for each such invention, a listing of the party(ies) to whom it belongs and the fact that full disclosure as to such inventions has not been made for that reason. I have also listed on Appendix A all patents and patent
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applications in which I am named as an inventor, other than those which have been assigned to the Company (“Other Patent Rights”). If no such disclosure is attached, I represent that there are no Prior Inventions or Other Patent Rights. If, in the course of my employment with the Company, I incorporate a Prior Invention into a Company’s product, process or machine or other work done for the Company Entities, I hereby grant to the Company a nonexclusive, royalty-free, paid-up, irrevocable, worldwide license (with the full right to sublicense) to make, have made, modify, use, sell, offer for sale and import such Prior Invention. Notwithstanding the foregoing, I will not incorporate, or permit to be incorporated, Prior Inventions in any Company-Related Development without the Company’s prior written consent.
This Agreement does not obligate me to assign to the Company any Development which is developed entirely on my own time and does not relate to the business efforts or research and development efforts in which the Company actually is engaged or is planning to be engaged or was engaged anytime while I was employed by the Company Entities, and does not result from the use of premises or equipment owned or leased by the Company Entities. However, I will also promptly disclose to the Company any such Developments for the purpose of determining whether they qualify for such exclusion. I understand that to the extent this Agreement is required to be construed in accordance with the laws of any state which precludes a requirement in an employee agreement to assign certain classes of inventions made by an employee, this Section 5 will be interpreted not to apply to any invention which a court rules and/or the Company agrees falls within such classes. I also hereby waive all claims to any moral rights or other special rights which I may have or accrue in any Company-Related Developments.
5. Documents and Other Materials. I will keep and maintain adequate and current records of Company-Related Developments developed by me during my employment, which records will be available to and remain the sole property of the Company at all times. All files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, program listings, blueprints, models, prototypes, or other written, photographic or other tangible material containing Proprietary Information, whether created by me or others, which come into my custody or possession, are the exclusive property of the Company to be used by me only in the performance of my duties for the Company Entities. Any property situated on a Company Entities’ premises and owned by any Company Entity, including without limitation computers, disks and other storage media, filing cabinets or other work areas, is subject to inspection by the Company at any time with or without notice. In the event of the termination of my employment for any reason, I will deliver to the Company all files, letters, notes, memoranda, reports, records, data, sketches, drawings, notebooks, layouts, charts, quotations and proposals, specification sheets, program listings, blueprints, models, prototypes, or other written, photographic or other tangible material containing Proprietary Information, and other materials of any nature pertaining to the Proprietary Information of the Company Entities or to my work for the Company Entities, and will not take or keep in my possession any of the foregoing or any copies. Notwithstanding anything to the contrary in this Agreement or otherwise, I may retain the information set forth in Section 19 below.
6. Enforcement of Intellectual Property Rights. I will cooperate with the Company at its sole expense, both during and after my employment with the Company, with respect to the procurement, maintenance and enforcement of Intellectual Property Rights in Company-Related Developments. At the Company’s sole expense, I will sign, both during and after the term of this Agreement, all papers, including without limitation copyright applications, patent applications, declarations, oaths, assignments of priority rights, and powers of attorney, which the Company reasonably deems necessary or desirable in order to protect its rights and interests in any Company-Related Development. If the Company is unable, after reasonable effort, to secure my signature on any such papers, I hereby irrevocably designate and appoint each officer of the Company as my agent and attorney-in-fact to execute any such papers on my behalf, and to take such actions as the Company
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reasonably deems necessary or desirable in order to protect its rights and interests in any Company-Related Development.
7. Non-Competition and Non-Solicitation. In order to protect the Company Entities’ Proprietary Information and good will, while I am employed by the Company and for a period of twelve (12) months following the termination of my employment for any reason, except as provided in the last two sentences of this Section 8, I agree that I will not directly or indirectly: (a) perform the same or similar services in the Restricted Area (as defined below) for any Competitor (as defined below) as those I performed for the Company Entities during my employment with the Company; (b) engage in or become employed in any capacity by, or become an officer, director, agent, consultant, contractor, shareholder or partner of any partnership, corporation or entity that at the time of my engagement is engaged in, or is planning to engage in, the Business, unless I am engaged solely by a division or affiliate of such partnership, corporation or entity that does not engage in the Business and the entity or division, as applicable, which engages in the Business represents no more than 10% of such entity’s (or, in case of an affiliate, the entire controlled group’s) annual revenues and I am not involved, directly or indirectly, in any plans to engage in the Business, or I am providing services to a portfolio company of a private equity fund which does not engage in the Business (even if the private equity fund has another portfolio company which engages in the Business; provided I provide no services to such other portfolio company or advise on the acquisition or purchase of any Competitor) or have a passive (no more than 5%) equity interest in a private equity or hedge fund that owns an entity engaged in or planning to be engaged in the Business as long as I do not provide services directly to such Business (“Carve-out”); (c) on behalf of a Competitor: (i) call upon, solicit, contact, or provide any services (or attempt to do any of the foregoing) for any Customer or Potential Customer of the Company Entities that I called upon, solicited, contacted, or serviced for the Company Entities during my employment or, on or following my termination date, within the two years prior to my termination date; (ii) call upon, solicit, contact, or provide any services (or attempt to do any of the foregoing) for any Customer or Potential Customer; (iii) call upon, solicit, or contact or provide any services to any vendor or supplier of the Company Entities who during my employment is a vendor or supplier of any of the Company Entities, or on or following my termination date, was a vendor or supplier of the Company Entities during the 24 month period prior to my termination date or about whom I had knowledge; or (iv) otherwise divert or take away (or attempt to do any of the foregoing) any business of the Company Entities to a Competitor of the Company Entities; or (d) undertake planning for or organization of a business competitive with the Company Entities’ Business.
Notwithstanding the foregoing, nothing in this Section 8 shall be violated by actions taken in the good faith performance of my duties to the Company Entities or any activities by me permitted by the Carve-out.
I recognize and agree that as part of my job duties and responsibilities, I will be providing services for or on behalf of the Company Entities that are coextensive with the entire geographic scope of the Company Entities’ business, and that because of the global nature and scope of these executive duties and responsibilities and because of the global nature and scope of the Company Entities’ business and their focus on the Business, my performance of my duties and responsibilities is not tied to any specifically designated territory or geographic region.
Accordingly, the “Restricted Area” shall mean the geographical areas in which the Company Entities (i) are actively marketing their products and services as of my last day of employment with the Company or (ii) have made a significant investment in time and money to prepare to market their products and services within one (1) year prior to the Termination Date.
“Business” means the business of selling policy, billing and/or claims software to property and casualty insurance companies.
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“Competitor” shall mean any person or entity that engages in the Business but shall not include any division, subsidiary or affiliate of a person or entity engaged in the Business (and such entity or division, as applicable, which engages in the Business represents no more than 10% of such entity’s (or, in case of an affiliate, the entire controlled group’s) annual revenues) if such division, subsidiary or affiliate does not itself engage in the Business; provided, however, that I shall not interact on business matters with any individual employed by any such division, subsidiary or affiliate engaged in the Business.
“Customer” shall mean during my employment any person or entity who purchased or contracted to purchase any products or services offered by the Company in the Company Entities’ Business and, on or following my termination date, any person or entity which, at any point during the twelve (12) month period of time preceding termination of my employment with the Company for any reason, purchased or contracted to purchase any products or services offered by the Company in the Company Entities’ Business.
“Potential Customer” shall mean during my employment any person or entity who is identified on a list by any Company Entity as a potential client or customer for the Business and on or following my termination date, any person or entity which, at any point during the twelve (12) month period of time preceding termination of my employment with the Company for any reason, was identified on a list as a potential client or customer of the Business.
In addition to the above provisions of this Section 8, while I am employed by the Company and for a period of twelve (12) months following the termination of my employment for any reason (“Non-Solicitation Restricted Period”), I agree that, other in the ordinary course of performing my duties for any Company Entity, I will not directly or indirectly or by action in concert with others, (A) encourage or influence (or seek to encourage or influence) any person who is an employee, director, or independent contractor of the Company Entities, or on or following the termination of my employment, was an employee, director or independent contractor during the last year of my employment with the Company, to terminate employment or engagement with the Company Entities; (B) combine or coordinate with other employees, directors, agents, contractors or other representatives of the Company Entities for the purpose of organizing any business activity competitive to the Company Entities’ Business; or (C) solicit or hire any person who is or was engaged as an employee, director or independent contractor by the Company Entities during the last year of my employment with the Company. To the extent permitted by applicable law, in the event of a proven breach of this Section 8 by me, the Non-Competition Restricted Period and the Non-Solicitation Restricted Period set forth herein shall be extended automatically by the period of such breach. All of the foregoing provisions of this Section 8 notwithstanding, I may own not more than five percent (5%) of the issued and outstanding shares of any class of securities of an issuer whose securities are listed on a national securities exchange or registered pursuant to Section 12(g) of the Securities Exchange Act of 1934, as amended as long as such investment is a passive investment and I have no control over the business.
Notwithstanding anything herein to the contrary, the foregoing restrictions shall not apply with regard to (i) general solicitations that are not specifically directed to employees, agents or independent contractors of any Company Entity or (ii) actions taken in the good faith performance of my duties for and/or for the benefit of the Company Entities. For the avoidance of doubt, the foregoing restrictions shall not apply with regard to solicitations or hirings by any of my future employers without my direct or indirect involvement; provided, however, that I have not directed or caused any such employer to solicit or hire any such employee, agent or independent contractor.
8. Government Contracts. I acknowledge that the Company Entities may have from time to time agreements with other persons or with the United States Government or its agencies which impose obligations or restrictions on the Company Entities regarding inventions made during the course of work under such
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agreements or regarding the confidential nature of such work. I agree to comply with any such obligations or restrictions upon the direction of the Company Entities. In addition to the rights assigned under Section 5, I also assign to the Company (or any of its nominees) all rights which I have or acquire in any Developments, full title to which is required to be in the United States under any contract between the Company Entities and the United States or any of its agencies.
9. Defend Trade Secrets Act. Pursuant to 18 U.S.C. § 1833(b), I will not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret of the Company that (i) is made (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to my attorney and (B) solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding. If I file a lawsuit for retaliation by the Company for reporting a suspected violation of law, I may disclose the trade secret to my attorney and use the trade secret information in the court proceeding, if I (i) file any document containing the trade secret under seal, and (ii) do not disclose the trade secret, except pursuant to court order. Nothing in this Agreement is intended to conflict with 18 U.S.C. § 1833(b) or create liability for disclosures of trade secrets that are expressly allowed by such section.
10. Cooperation. During my employment with the Company and at all times thereafter, at the request of the Company, upon reasonable notice and at reasonable times (taking into account my other personal and business commitments), I shall cooperate fully with the Company Entities in any (a) litigation, administrative proceeding or inquiry that involves the Company Entities or their then-current or former officers, directors, employees or agents; and/or (b) investigation or inquiry conducted by or on behalf of the Company Entities or any governmental or regulatory authority, in each case, with respect to any matter about which I have knowledge or information or in which I was involved. The Company shall reimburse me for reasonable out-of-pocket expenses incurred by me under this Section 11 (provided that I provide the Company with reasonable documentation of such expenses).
11. Nondisparagement. Following termination of my employment and at all times thereafter, I will not make or publish, or cause to be made or published, any statement or information that disparages or defames any of the Company Entitles or any of their respective partners, officers, directors, shareholders, or employees.
The Company agrees not to intentionally make or publish, or cause to be made or published, any official statement or formal announcement that disparages or defames me. Notwithstanding the foregoing, nothing in this Section 12 shall prevent the parties from making any truthful statement (a) necessary with respect to any litigation, arbitration or mediation involving this Agreement or any other agreement between myself and any Company Entity, including, but not limited to, the enforcement of such agreement, in the forum in which such litigation, arbitration or mediation properly takes place or (b) required by law, legal process or by any court, arbitrator, mediator or administrative or legislative body (including any committee thereof) with apparent jurisdiction over the party.
12. Prior Agreements. I hereby represent that, except as I have fully disclosed previously in writing to the Company, I am not bound by the terms of any agreement with any previous employer or other party to refrain from using or disclosing any trade secret or confidential or proprietary information in the course of my employment with the Company or to refrain from competing, directly or indirectly, with the business of such previous employer or any other party. I further represent that my performance of all the terms of this Agreement as an employee of the Company does not and will not breach any agreement to keep in confidence proprietary information, knowledge or data acquired by me in confidence or in trust prior to my employment with the Company. I will not disclose to the Company Entities or induce the Company Entities to use any confidential or proprietary information or material belonging to any previous employer or others.
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13. Remedies Upon Breach. I understand that the restrictions contained in this Agreement are necessary for the protection of the business and goodwill of the Company Entities and I consider them to be reasonable for such purpose. Any breach of this Agreement is likely to cause the Company Entities substantial and irrevocable damage and therefore, in the event of such breach, the Company Entities, in addition to such other remedies which may be available, will be entitled to specific performance and other injunctive relief, without the posting of a bond. If I violate this Agreement, as determined by a final judgment of a court of competent jurisdiction, in addition to all other remedies available to the Company Entities at law, in equity, and under contract, I agree that I am obligated to pay the Company Entities’ reasonable costs of enforcement of this Agreement, including attorneys’ fees and expenses.
14. Use of Voice, Image and Likeness. During my employment and for a reasonable period thereafter, I give the Company permission to use any and all of my voice, image and likeness, with or without using my name, in connection with the products and/or services of the Company Entities, for the purposes of advertising and promoting such products and/or services and/or the Company Entities, and/or for other purposes deemed appropriate by the Company in its reasonable discretion, except to the extent expressly prohibited by law.
15. Publications and Public Statements. Other than in the ordinary course of the Company’s business, I will obtain the Company’s written approval before publishing or submitting for publication outside the Company any material that relates to my work at the Company and/or incorporates any Proprietary Information.
16. No Employment Obligation. I understand that this Agreement does not create an obligation on the Company or any other person to continue my employment. I acknowledge that, unless otherwise provided in my employment agreement with the Company, my employment with the Company is at will and therefore may be terminated by the Company or me at any time and for any reason, with or without cause.
17. Survival and Assignment by the Company. I understand that my obligations under this Agreement will continue in accordance with its express terms regardless of any changes in my title, position, duties, salary, compensation or benefits or other terms and conditions of employment. I further understand that my obligations under this Agreement will continue following the termination of my employment regardless of the manner of such termination. The Company will have the right to assign this Agreement to its successors and assigns.
18. Exit Interview; Return of Company Property. If and when I depart from the Company, I may be required to attend an exit interview and sign an “Employee Exit Acknowledgement” to reaffirm my acceptance and acknowledgement of the obligations set forth in this Agreement. For eighteen (18) months following termination of my employment, I will notify the Company of any change in my address and of each subsequent employment or business activity, including the name and address of my employer and the nature of my activities, reasonably related to the Business; provided that the failure to provide any such notice shall not constitute a waiver of any right or remedy I may have hereunder or under any employment, equity or other contractual arrangement with any of the Company Entities. On my last day of employment with the Company or upon an earlier request by the Company, to the extent practicable, or as soon as reasonably practicable following my last day of employment with the Company, I shall promptly return to the Company any and all documents and other physical or tangible things regardless of whether in paper or electronic form, in my possession, custody or control, that are the property of any of the Company Entities, and any and all documents or other tangible things in my possession, custody or control that disclose or embody any technical or other information that is confidential or proprietary to the Company Entities or any third party that has disclosed such information to any of the Company Entities subject to an obligation of confidentiality. I agree to return and not destroy, alter, erase or otherwise change any software, data or other information belonging to any of
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the Company Entities. Notwithstanding the foregoing and for the avoidance of doubt, I am entitled to maintain, and the Company Entities acknowledge my right in respect of, individual personnel documents, such as my payroll and tax records and any documents or information relating to my compensation and/or equity interests in any Company Entity.
19. Disclosure to Future Employers. I agree that prior to accepting employment or engagement with any other person during my employment with the Company, and for eighteen (18) months after my last day of employment with the Company, I shall inform such prospective employer or prospective counterparty of the existence and details of this Agreement and provide such prospective employer or prospective counterparty with a copy of this Agreement, and, in addition, I agree that promptly following the commencement of employment or engagement with such person during such period, I shall provide the Company with written notice, including (a) the name of the employer or counterparty; (b) the business engaged in or to be engaged in by the employer or counterparty; (c) my position with the employer or counterparty; (d) the location of my employment or engagement and (e) the territory in which I have job duties or responsibilities; provided, however, that the foregoing shall apply if and only to the extent that any covenant or commitment set forth in this Agreement would be relevant with respect to such person; and, provided further, that my failure to provide any such notice shall not constitute a waiver of any right or remedy I may have hereunder or under any employment, equity or other contractual arrangement with any of the Company Entities.
20. Severability; Blue-Penciling. In case any provisions (or portions thereof) contained in this Agreement shall, for any reason, be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect the other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. If, moreover, any one or more of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting and reducing it, so as to be enforceable to the extent compatible with the applicable law as it shall then appear.
20. Interpretation. This Agreement will be deemed to be made and entered into in the State of Illinois, and will in all respects be interpreted, enforced and governed under the laws of the State of Illinois without regard to conflicts-of-law principles. I hereby agree to consent to personal jurisdiction of the state and federal courts situated within Illinois and of any state and county in which the Company contends that I have breached this Agreement for purposes of enforcing this Agreement, and waive any objection that I might have to personal jurisdiction or venue in those courts.
IN WITNESS WHEREOF, I have duly executed this Agreement as of the
date below.
Signed: /s/ Eugene C. Van Biert, Jr.
Type or print name: Eugene C. Van Biert, Jr.
Date: 11/6/16
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Acknowledged and Confirmed
Disco Topco Holdings (Cayman), L.P.
By: Disco (Cayman) GP Co., its general partner
By: /s/ Michael A. Jackowski
Name: Michael A. Jackowski
Title: Authorized Signatory
Duck Creek Technologies LLC
By: Disco Topco Holdings (Cayman), L.P., its sole member
By: Disco (Cayman) GP Co., its general partner
By: /s/ Michael A. Jackowski
Name: Michael A. Jackowski
Title: Authorized Signatory
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APPENDIX A
To: Duck Creek Technologies, LLC.
From: Eugene C. Van Biert, Jr.
Date: 11/6/16
SUBJECT: Prior Inventions
The following is a complete list of all inventions or improvements relevant to the subject matter of my employment by the Company that have been made or conceived or first reduced to practice by me alone or jointly with others prior to my engagement by the Company:
☒ No inventions or improvements
☐ See below:
☐ Additional sheets attached
The following is a list of all patents and patent applications in which I have been named as an inventor
☒ None
☐ See below:
Appendix A-1
Exhibit B
RELEASE OF CLAIMS
As a condition precedent to Eugene C. Van Biert, Jr. (“Employee”) receiving payments as provided for in Section 7(b) of that certain Employment Agreement by and between Duck Creek Technologies, LLC (the “Company”) and Employee, dated [.] (“the Employment Agreement”), Employee hereby agrees to the terms of this Release of Claims (this “Release”) as follows:
1. Release.
Employee, on behalf of Employee and Employee’s heirs, executors, administrators, successors and/or assigns, hereby voluntarily, unconditionally, irrevocably and absolutely releases and discharges the Company, its parent, and each of their subsidiaries, affiliates and partnerships, and all of their past and present employees, officers, directors, agents, owners, shareholders, representatives, members and attorneys, and all of their successors and assigns (collectively, the “Released Parties”), from all claims, charges, demands, causes of action, and liabilities, known or unknown, suspected or unsuspected of any nature whatsoever (hereinafter, “Claims”) that Employee has or may have against the Released Parties (i) from the beginning of time through the date upon which Employee signs this Release, including any Claims for an alleged violation of any or all federal, state and local laws or regulations, including, but not limited to the following, each as may be amended and as may be applicable: Title VII of the Civil Rights Act; the Age Discrimination in Employment Act; the Americans with Disabilities Act; the Rehabilitation Act; the Family and Medical Leave Act; the Sarbanes-Oxley Act; the Worker Adjustment and Retraining Notification Act; the Fair Credit Reporting Act; the Equal Pay Act; the Employee Retirement Income Security Act; the National Labor Relations Act; Uniformed Services Employment and Reemployment Rights Act; the Equal Pay Act; the False Claims Act; Sections 1981 through 1988 of Title 42 of the United States Code; the Occupational Safety and Health Act; the Fair Labor Standards Act; the Illinois Human Rights Act; the Right to Privacy in the Workplace Act; the Illinois Health and Safety Act; the Illinois Worker Adjustment and Retraining Notification Act; the Illinois One Day Rest in Seven Act; the Illinois Union Employee Health and Benefits Protection Act; the Illinois Employment Contract Act; the Illinois Labor Dispute Act; the Victims’ Economic Security and Safety Act; the Illinois Whistleblower Act; the Illinois Equal Pay Act; Cook County Human Rights Ordinance; Chicago Human Rights Ordinance; the Illinois Constitution; Claims for negligent or intentional infliction of emotional distress, breach of contract, fraud or any other unlawful behavior, and/or punitive damages, liquidated damages, penalties, attorneys’ fees, costs and/or expenses or (ii) arising under any agreement between Employee and any Released Party; provided, however, that this Release does not bar any Claims (A) with respect to Employee’s rights under Sections 5(g), 7(b), 7(d), 18 or 19 of the Employment Agreement, (B) that may not be waived by private agreement under applicable law, such as claims for workers’ compensation or unemployment insurance benefits, (C) with respect to indemnification, advancement of expenses and/or coverage under any director and officer insurance policy, including pursuant to any written agreement or corporate governance document or limited partnership of any Released Party, (D) with respect to all rights under the Company’s 401(k) plan or (E) with respect to the Class C Units, if any, or Class D Units of the Issuer (as defined in the Employment Agreement). Nothing in this Release prohibits or restricts Employee’s right to file a charge with or participate in a charge by the
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Equal Employment Opportunity Commission, or any other local, state, or federal administrative body or government agency that is authorized to enforce or administer laws related to employment; provided that Employee hereby waives the right to recover any monetary damages or other relief against any Released Parties with respect to Claims released by Employee herein.
2. Consultation/Voluntary Agreement. Employee acknowledges that the Company has advised Employee of Employee’s right to consult with an attorney prior to executing this Release. Employee has carefully read and fully understands all of the provisions of this Release. Employee is entering into this Release, knowingly, freely and voluntarily in exchange for good and valuable consideration to which Employee would not be entitled in the absence of executing and not revoking this Release.
3. Review and Revocation Period.
(a) Employee has been given at least twenty-one (21) calendar days (including the time period permitted under Section 7(b) of the Employment Agreement) to consider the terms of this Release, although Employee may sign it sooner.
(b) Employee will have seven (7) calendar days from the date on which such Employee signs this Release to revoke Employee’s consent to the terms of this Release. Such revocation must be in writing and must be e-mailed to [TO COME]. Notice of such revocation must be received within the seven (7) calendar days referenced above.
(c) In the event of such revocation by Employee, this Release shall be null and void in its entirety and Employee shall not have any rights to the payments set forth above. Provided that Employee does not revoke this Release within the time period set forth above, this Release shall become effective on the eighth (8th) calendar day after the date upon which Employee signs it.
4. Savings Clause. If any term or provision of this Release is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Release or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision of this Release is invalid, illegal or unenforceable, this Release shall be enforceable as closely as possible to its original intent, which is to provide the Released Parties with a full release of all legally releasable claims through the date upon which Employee signs this Release.
5. Third-Party Beneficiaries. Employee acknowledges and agrees that all Released Parties are third-party beneficiaries of this Release and have the right to enforce this Release.
6. Governing Law. This Release shall be governed by, and construed in accordance with, the laws of the State of Illinois, without regard to the application of any choice-of-law rules that would result in the application of another state’s laws.
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IN WITNESS WHEREOF, Employee has executed this Release, as of the below-indicated date, which may be signed and delivered by facsimile or .pdf.
EMPLOYEE
/s/ Eugene C. Van Biert, Jr.
Name: Eugene C. Van Biert, Jr.
Date Executed: 11/6/16
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