Exhibit 10.3
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into on this September 1, 2021 (the “Effective Date”) by and between Duck Creek Technologies LLC (the “Company”) and Jeffrey H. Winter (the “Employee”).
R E C I T A L S:
The Company Group (as defined below) is 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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Notwithstanding the foregoing, the Severance Payments shall be reduced by the Non-Compete Payment (as defined in the Restrictive Covenants Agreement), if applicable, to the extent permitted under applicable law and Section 18 of this Agreement; provided that any such reduction shall be applied to the earliest amount payable pursuant to this Section 7(b) with respect to which such reduction is permissible.
If the Employee breaches any of the covenants set forth in the Restrictive Covenants Agreement (as applicable and pursuant to the terms therein), 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 a form substantially similar to 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 the 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
22 Boston Wharf Road, 10th Floor
Boston, MA 02210
Attention: Michael Jackowski, Chief Executive Officer
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 mail 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: /s/ Michael A. Jackowski
Name:
Title:
[Signature Page to Employment Agreement]
EMPLOYEE
/s/ Jeffrey H. Winter
Name: Jeffrey H. Winter
[Signature Page to Employment Agreement]
Exhibit A
RESTRICTIVE COVENANTS AGREEMENT
In consideration of (a) my continued employment by Duck Creek Technologies LLC and/or any of its subsidiaries (the “Company” and, together with Duck Creek Technologies, Inc. (the “Parent”) and all of its affiliates (other than any investors or equity holders in the Parent) collectively, the “Company Entities”) pursuant to that certain Employment Agreement by and between Duck Creek Technologies LLC and me, dated September 1, 2021 (the “Employment Agreement”), (b) receipt of my restricted stock equity compensation award issued pursuant to the Parent’s 2020 Omnibus Incentive Plan (the “RSA Award”), (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 set forth below. Any term not defined herein shall have the meaning set forth in the Employment Agreement.
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 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.
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 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.
(a) while I am employed by the Company or any of the other Company Entities and, unless the Company elects not to enforce the non-competition restriction set forth in this Section 8(a), by providing written notice to me, no later than the Termination Date, for a period of twelve (12) months following the Termination Date resulting from either (i) my resignation from employment with the Company Entities for any reason or (ii) the Company Entities’ termination of my employment with the Company Entities due to Non-Compete Cause (as defined below) (such post-employment restricted period the “Non-Compete Restricted Period”), I will not, directly or indirectly, render advice or 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 at any time during the 24 month period prior to the Termination Date; provided, however, that notwithstanding the foregoing, the Non-Compete Restricted Period shall automatically be extended to two (2) years following the Termination Date as set forth in clauses (i) and (ii) above in the event that I breach a fiduciary duty to the Company Entities or unlawfully take, physically or electronically, any property belonging to the Company Entities; and
(b) while I am employed by the Company or any of the Company Entities and for a period of twelve (12) months following the Termination Date resulting for any reason or no reason (the “Non-Solicitation Restricted Period”), I will not, directly or indirectly, on behalf of a Competitor and for purposes of providing products or services competitive with the Business (as defined below) or to encourage the termination or diminishment of such Person’s business relationship with the Company Entities: (i) call upon, solicit, contact, or transact business (or attempt to do any of the foregoing) for any Customer (as defined below) or Potential Customer (as defined below) of the Company Entities that I called upon, solicited, contacted, or serviced for the Company Entities during my employment or, on or following the Termination Date, during the 24 month
period prior to the Termination Date; (ii) call upon, solicit, contact, or transact business (or attempt to do any of the foregoing) for any Customer or Potential Customer; (iii) call upon, solicit, or contact or transact business with 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 the Termination Date, was a vendor or supplier of the Company Entities during the 24-month period prior to the 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.
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.
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 co-extensive 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 shall mean any country in which I provided services or had a material presence or influence for or on behalf of the Company Entities during the 24 month period prior to the Termination Date.
I acknowledge and agree that the RSA Award represents fair and reasonable consideration for the non-competition restriction in Section 8(a), including, if applicable, during the Non-Compete Restricted Period. Unless the Company elects, pursuant to Section 8(a), not to enforce the non-competition restriction set forth in Section 8(a) during the Non-Compete Restricted Period, the Company shall pay me, upon the commencement of the Non-Compete Restricted Period through the expiration of the Non-Compete Restricted Period, an amount equal to 50% of my highest annualized base compensation within the two (2) year period immediately preceding the Termination Date (such amount, the “Non-Compete Payment”) in equal installments in accordance with the Company’s customary payroll practices as in effect on the Termination Date and commencing on the Company’s first payroll date following the Termination Date; provided, however, that the Company shall have no obligation to pay, and I shall not be entitled to receive, such Non-Compete Payment during any extension of the Non-Compete Restricted Period as a result of my breach of a fiduciary duty to the Company Entities or unlawful taking of, either physically or electronically, any property belonging to the Company Entities. In the event that I breach any of my obligations under Section 8(a), including my breach of a fiduciary duty to the Company Entities or unlawful taking of, either physically or electronically, property of the Company Entities, the Company’s obligations to provide the Non-Compete Payment shall thereupon immediately cease, and the Company shall be entitled, in addition to any remedies available in equity and at law, including, without limitation, injunctions and monetary damages, to recover from me any and all amounts of the Non-Compete Payment previously paid to me.
Any Severance Payments payable to me pursuant to my Employment Agreement shall be reduced by the Non-Compete Payment, if applicable, to the extent permitted under applicable law in accordance with Section 4(b) of my Employment Agreement.
“Business” means the business of selling policy, billing and/or claims software to property and casualty insurance companies.
“Competitor” shall mean any Person that engages in the Business but shall not include any division, subsidiary or affiliate of a Person 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 render advice or provide services 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 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 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.
“Non-Compete Cause” shall mean cause as defined under Massachusetts law, as applicable to the Massachusetts Noncompetition Agreement Act, MGL c.149, § 24L, including, without limitation, Cause as defined in my Employment Agreement.
“Potential Customer” shall mean during my employment any Person 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 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, during the Non-Solicitation Restricted Period, I agree that, other than 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; or (B) 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-Compete 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.
(a) 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.
(b) Nothing in this Agreement or any other agreement by and between the Company Entities and me shall prohibit or restrict me from (i) voluntarily communicating with any government agency, including the Securities and Exchange Commission (“SEC”), or any self-regulatory organization regarding possible violations of law, in each case without advance notice to the Company Entities, (ii) recovering a SEC whistleblower award as provided under Section 21F of the Securities Exchange Act of 1934, or (iii) disclosing any Proprietary Information to a court or other administrative or legislative body in response to a subpoena, provided that I first promptly notify and provide the Company Entities with the opportunity to seek, and join in its efforts at the sole expense of the Company Entities, to challenge the subpoena or obtain a protective order limiting its disclosure, or other appropriate remedy.
IN WITNESS WHEREOF, I and the Company have duly executed this Agreement as of the date below.
Signed: /s/ Jeffrey H. Winter
Name: Jeffrey H. Winter
Date: Dec 1, 2021
[Signature Page to Restrictive Covenants Agreement]
Acknowledged and Confirmed
Duck Creek Technologies LLC
By: /s/ Michael A. Jackowski
Name:
Title:
Duck Creek Technologies, Inc.
By:
Name:
Title:
[Signature Page to Restrictive Covenants Agreement]
APPENDIX A
To: | Duck Creek Technologies LLC |
From: | Jeffrey H. Winter |
Date: | Dec 1, 2021 |
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 and Accenture 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 Jeff H. Winter (“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 September 1, 2021 (the “Employment Agreement”), Employee hereby agrees to the terms of this Release of Claims (this “Release”) as follows:
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; Massachusetts Wage Act; the Massachusetts Fair Employment Practices Act; 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(e), 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, or (D) with respect to all rights under the Company’s 401(k) plan. Nothing in this Release prohibits or restricts Employee’s right to file a charge with or participate in a charge by the 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.
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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/ Jeff Winter
Jeff Winter
Date Executed: Dec 1, 2021
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