Exhibit 10.1

EXECUTION VERSION

 

 

 

DUCK CREEK TECHNOLOGIES, INC.

STOCKHOLDERS AGREEMENT

Dated August 14, 2020

 

 

 

TABLE OF CONTENTS

 

		Page
1.   DEFINITIONS			2
2.   BOARD			7
(a)   Directors			7
(b)   Nomination of Directors and Vacancies of Directors			7
(c)   Nomination of Slate			8
(d)   Voting at Meetings of Stockholders			9
(e)   Board Observers			9
(f)   Committees			9
(g)   Reimbursement of Expenses			10
3.   GOVERNANCE			10
(a)   Protective Provisions			10
4.   RESTRICTIONS ON TRANSFER			12
(a)   Restricted Persons			12
(b)   Competitors and Financial Sponsors			12
(c)   Joinder			12
5.   OPPORTUNITIES			12
(a)   Rights to Opportunities			12
(b)   Presentation of Opportunities			13
(c)   Waiver			13
6.   GENERAL INDEMNIFICATION			13
(a)   Indemnification by the Company			13
(b)   Rights Non-Exclusive			14
(c)   Insurance			14
(d)   Expenses			14
7.   TAX MATTERS			14
8.   MISCELLANEOUS			15
(a)   IPO Expenses			15
(b)   Confidentiality			15
(c)   Notices			16
(d)   Severability			17
(e)   Headings and Sections			17
(f)   Amendment			18
(g)   Waiver			18
(h)   Successors and Assigns			18
(i)  Counterparts			18
(j)  Remedies			18
(k)   Governing Law; Venue and Forum			18

(l)  Mutual Waiver of Jury Trial			19
(m) No Strict Construction			19
(n)   Entire Agreement			19
(o)   Delivery by Facsimile or Email			19
(p)   Further Action			20
(q)   Termination			20
(r)   Effectiveness			20

 

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STOCKHOLDERS AGREEMENT

This STOCKHOLDERS AGREEMENT (this “Agreement”) dated as of August 14, 2020 among (i) Duck Creek Technologies, Inc., a Delaware corporation (the “Company”), (ii) Accenture LLP, an Illinois limited liability partnership (“Accenture LLP”), (iii) Accenture Holdings BV, a Dutch private company with limited liability (“Accenture BV”, and together with Accenture LLP, the “Accenture Investors”), and (iv) Disco (Guernsey) Holdings L.P. Inc., a Guernsey limited partnership (the “Apax Investor”, and together with the Accenture Investors, the “Investor Parties”). As used in this Agreement, the terms “Accenture Investors” and “Apax Investor” shall each also mean and include any of its Affiliates that hold Common Stock (as defined in Section 1).

WHEREAS, the Company is currently contemplating an underwritten initial public offering (“IPO”) of its Common Stock;

WHEREAS, immediately following the completion of the IPO, (i) the Company will acquire limited partnership units in Disco Topco Holdings (Cayman), L.P., an exempted limited partnership registered under the laws of the Cayman Islands (the “Disco Partnership”), from the Accenture Investors and certain other limited partners in the Disco Partnership (other than the Apax Investor) (the “Contributing Limited Partners”), (ii) the Company will acquire shares in Disco (Cayman) GP Co., a Cayman Islands exempted company (the “General Partner”) from the Accenture Investors, (iii) the Company will issue shares of Common Stock to the Accenture Investors and the Contributing Limited Partners in exchange for the contribution of interests described in clauses (i) and (ii), and (iv) the Apax Investor will contribute all of its interests in Disco (Cayman) Acquisition Co., an exempted company registered under the laws of the Cayman Islands (“Disco Cayman”), which directly owns Class A Units in the Disco Partnership and shares in the General Partner, to a newly formed subsidiary (“Apax MergerCo”);

WHEREAS, immediately following the completion of the IPO, the Company will complete the Reorganization Transactions (as defined in Section 1), and in connection therewith (i) the Apax Investor will exchange shares of Apax MergerCo for shares of Common Stock and Apax MergerCo will merge with and into the Company, with the Company surviving, (ii) the Company will redeem a portion of the shares of Common Stock received by the Apax Investor and (iii) the Company will contribute a portion of the proceeds of the IPO to the Disco Partnership, which the Disco Partnership will use to redeem the Class A Units held by RBW Investment GmbH & Co. KG and the remaining Class B Units held by the Accenture Investors in the Disco Partnership for cash;

WHEREAS, as a result of the Reorganization Transactions, the Company will indirectly own all of the limited partnership units in the Disco Partnership, all of the equity interests in the General Partner and all of the equity interests in Disco Cayman; and

WHEREAS, in connection with, and effective upon the completion of the IPO (such date of completion, the “IPO Date”), the Company and the Investor Parties wish to set forth certain understandings between such parties, including with respect to governance matters.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein made and other good and valuable consideration, the parties hereto hereby agree as follows:

1. Definitions.

As used in this Agreement, the following terms shall have the following meanings:

“Accenture BV” has the meaning set forth in the introductory paragraph.

“Accenture Director(s)” has the meaning set forth in Section 2(b)(i).

“Accenture Group” means the Accenture Investors and their Affiliates.

“Accenture Investors” has the meaning set forth in the introductory paragraph.

“Accenture LLP” has the meaning set forth in the introductory paragraph.

“Action” means any claim, charge, demand, action, cause of action, inquiry, audit, suit, arbitration, indictment, litigation, hearing or other proceeding (whether civil, criminal, administrative, judicial or investigative, whether formal or informal, whether public or private).

“Adjusted EBITDA” means, for any period, the Consolidated Net Income of the Company for such period, excluding any of the following items and without double-counting (and so that, to the extent any of the following have been expensed, charged or deducted in computing such Consolidated Net Income, they shall be added back and to the extent any items have been recorded to increase such Consolidated Net Income, they shall be deducted): (a) charges for income, corporation, franchise or similar taxes (including any taxes based on profits, capital and/or repatriated funds) and deferred tax (or deducting any credits for income, corporation, franchise or similar taxes (including any taxes based on profits, capital and/or repatriated funds) and deferred tax); (b) charges for interest payable and similar charges, including, without limitation, any charges in respect of the incurrence of debt or with respect to the amortization of capitalized debt issuance costs, factoring costs and the fees paid or payable for guarantees, hedges or letters of credit (or deducting any credits for interest receivable and similar income); (c) charges for depreciation, amortization or impairment of assets; (d) charges for any equity-based or other noncash equity related compensation expense; (e) charges for any non-cash losses or non-cash expenses; (f) any increase in deferred revenue from the prior period, including both current and long-term balances (or deducting any decrease in deferred revenue from the prior period, including both current and long-term balances); (g) non-recurring items including, without limitation, transaction expenses, restructuring costs, facilities relocation costs, acquisition or disposition transaction expenses and fees, and acquisition integration costs and expenses (including any severance costs in connection therewith); and (h) the effects of purchase accounting to the extent they reduce net income (or deducting the effects of purchase accounting to the extent they increase net income), in each case, as determined in accordance with GAAP, to the extent applicable.

“Affiliate” means, when used with reference to another Person, any Person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such other Person. In addition, Affiliates of an Investor Party shall include all of its partners, officers and employees in their capacities as such.

 

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“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.

“Alliance Agreement” means that certain Strategic Alliance Agreement, dated as of the Original Closing Date, by and among Accenture LLP and the Partnership, as it may be amended, restated, supplemented or otherwise modified from time to time.

“Apax Director(s)” has the meaning set forth in Section 2(b)(ii).

“Apax Group” means the Apax Investor and its Affiliates.

“Apax Investor” has the meaning set forth in the introductory paragraph.

“Apax MergerCo” has the meaning set forth in the recitals.

“Authorized Recipients” has the meaning set forth in Section 8(b)(i).

“Board” means the Company’s board of directors.

“Business Day” means any calendar day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required to close.

“Bylaws” means the bylaws of the Company, as in effect on the IPO Date and as may be amended from time to time.

“CEO Director” means the Director then serving as the Chief Executive Officer of the Company.

“Certificate of Incorporation” means the certificate of incorporation of the Company, as in effect on the IPO Date and as may be amended from time to time.

“Chosen Courts” has the meaning set forth in Section 8(k).

“Common Stock” means the common stock, par value $0.01 per share, of the Company.

“Company” has the meaning set forth in the introductory paragraph.

“Company Sale” means each of the following events, in each case, whether direct or indirect:

(i) the sale of all or substantially all of the assets of the Company or a Subsidiary thereof (the assets of such Subsidiary comprising at least 50.0% of the consolidated assets of the Company and its Subsidiaries, taken as a whole); or

(ii) a merger, reorganization or other transaction in which at least 50% of the outstanding voting power of the Company is transferred to a third party, except for any merger, reorganization or other transaction involving the Company or a Subsidiary of the Company in which the holders of Equity Securities of the Company outstanding immediately prior to such transaction continue to hold Equity Securities that represent, immediately following such transaction, at least a majority, by voting power, of the Equity Securities, in substantially the same proportions, of (A) the surviving or resulting entity or (B) if the surviving or resulting entity is a wholly owned Subsidiary of another entity following such transaction, the parent entity of such surviving or resulting entity.

 

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“Competitor” means any Person engaged at the time of determination in the operation of businesses which are competitive with any of the businesses of the Company or any of its Subsidiaries (i) as conducted as of the Original Closing Date or (ii) as any such businesses is conducted at such time (so long as consistent with the Roll-Up Strategy), or which otherwise currently competes with any product line of or service offered by the Company or any of its Subsidiaries. For the avoidance of doubt, the term “Competitor” does not include investment funds or other institutional investors that have investments in operating businesses that meet the definition of “Competitor” set forth in the first sentence of this definition.

“Confidential Information” has the meaning set forth in Section 8(b)(i).

“Consent Matters” shall have the meaning set forth in Section 3(a).

“Consolidated Net Income” means, for any period, the net income or loss of the Company for such period on a consolidated basis determined in accordance with GAAP, excluding the income of any Person in which any other Person (other than the Company and its wholly owned Subsidiaries) has a joint economic interest, except to the extent of the amount of dividends or other distributions actually paid to the Company or any of its wholly owned Subsidiaries by such Person during such period.

“Contributing Limited Partners” has the meaning set forth in the recitals.

“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of company securities, by contract or otherwise.

“Controlled Affiliate” of any Person means any Affiliate that directly or indirectly, through one or more intermediaries, is Controlled by such Person.

“Convertible Debt Securities” means, as applicable, any debt securities directly or indirectly convertible into, or exchangeable for, any capital stock, shares, partnership or membership interests in the Company or any of its Subsidiaries.

“Directors” means the directors of the Company at the applicable time.

“Disco Cayman” has the meaning set forth in the recitals.

“Disco Partnership” has the meaning set forth in the recitals.

“Duck Creek US” means Duck Creek Technologies LLC, a Delaware limited liability company.

“Equity Incentive Plan” means the Company’s existing equity incentive plan or any new equity incentive plan.

 

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“Equity Securities” means, as applicable, (a) any capital stock, partnership or membership interests or other share capital; (b) any equity securities directly or indirectly convertible into or exchangeable for any capital stock, partnership or membership interests or other share capital or containing any profit participation features; (c) any rights or options directly or indirectly to subscribe for or to purchase any capital stock, partnership or membership interests, other share capital or securities containing any profit participation features or to subscribe for or to purchase any securities directly or indirectly convertible into or exchangeable for any capital stock, partnership or membership interests, other share capital or securities containing any profit participation features (including any Convertible Debt Securities); or (d) any share appreciation rights, phantom share rights or other similar rights.

“Filings” means annual, quarterly and current reports and other documents filed or furnished by the Company or any Subsidiary of the Company under the Exchange Act; annual reports to stockholders, annual and quarterly statutory statements of the Company or any Subsidiary of the Company; and any registration statements, prospectuses and other documents filed or furnished by the Company or any of its Subsidiaries or Controlled Affiliates under the Securities Act.

“GAAP” means generally accepted accounting principles in the United States of America as in effect from time to time, consistently applied throughout the applicable periods both as to classification of items and amounts.

“General Partner” has the meaning set forth in the recitals.

“Governmental Entity” means the United States of America or any other nation, any state or other political subdivision thereof, or any entity exercising executive, legislative, judicial, regulatory or administrative functions of government, including any court, in each case, having jurisdiction over the Company or any of its Subsidiaries or any of the property or other assets of the Company or any of its Subsidiaries.

“Independent Director” means a Director who is not affiliated with the Apax Investor or the Accenture Investors.

“Investor Parties” has the meaning set forth in the introductory paragraph.

“IPO” has the meaning set forth in the recitals.

“IPO Date” has the meaning set forth in the recitals.

“IPO Expenses” means, with respect to any Person, any and all reasonable out-of-pocket expenses (other than underwriting discounts and commissions) incurred or accrued by such Person in connection with the IPO or any underwriting agreement entered into in accordance therewith, including (i) all fees and expenses complying with all applicable securities laws, (ii) all road show, printing, messenger and delivery expenses, (iii) the fees and disbursements of counsel and (iv) other fees and expenses of such Person.

“Losses” has the meaning set forth in Section 6(a).

 

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“Observer” has the meaning set forth in Section 2(e).

“Original Closing Date” means August 1, 2016.

“Person” means an individual, a partnership (including a limited partnership), a corporation, a limited liability company, an exempted company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or other entity or a Governmental Entity.

“Pre-IPO Tax Matter” has the meaning set forth in Section 3(a)(i)(11).

“Public Offering” means the sale in an underwritten public offering of the Company’s Equity Securities pursuant to an effective registration statement or similar document filed under the Securities Act or applicable foreign securities regulations.

“Registration Rights Agreement” means the Amended and Restated Registration Rights Agreement, dated as of the date hereof and as may be amended from time to time, by and among Disco Topco Holdings (Cayman), L.P., a Cayman Islands exempted limited partnership, Disco (Cayman) Acquisition Co., an exempted company incorporated under the Laws of the Cayman Islands, Accenture Holdings BV, a private limited liability company organized under the Laws of the Netherlands, Accenture LLP, an Illinois limited partnership, the Class E Investors (as defined therein) and the individuals listed in Schedule A thereto.

“Reorganization Transactions” means those actions set forth on Schedule 1.1(a) hereto.

“Restricted Persons” means those persons set forth on Schedule 1.1(b) hereto.

“Restricted Shares” means shares of Common Stock awarded under the Company’s Equity Incentive Plan, subject to time and performance vesting restrictions.

“Restrictive Covenants Side Letter” means that letter agreement, dated as of the Original Closing Date, as amended or amended and restated from time to time, by and among Accenture Holdings plc, a company registered in Ireland, Accenture LLP, Accenture International SARL, a company registered in Luxembourg, the Apax Investor, Apax Partners, L.P., the General Partner and the Disco Partnership.

“Roll-Up Strategy” means the acquisition of software and software analytics businesses primarily serving property and casualty carriers and agencies.

“SEC” has the meaning set forth in Section 2(f).

“Securities Act” means the Securities Act of 1933, as amended.

“Stockholders” means holders of Common Stock of the Company.

 

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“Subsidiary” means, with respect to any Person, any corporation, limited liability company, partnership, association or business entity of which (a) if a corporation, a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (b) if a limited liability company, partnership, association or other business entity (other than a corporation), a majority of partnership or other similar ownership interest thereof is at the time owned or controlled, directly or indirectly, by any Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity (other than a corporation) if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control any managing member, general partner or analogous controlling Person of such limited liability company, partnership, association or other business entity. Unless otherwise indicated, the term “Subsidiary” refers to a Subsidiary of the Company.

“Transfer” means any direct or indirect sale, transfer, assignment, offer, pledge, charge, mortgage, exchange, hypothecation, grant of participation interest in, grant of a security interest or other direct or indirect disposition or encumbrance of legal title to or any beneficial interest in any Equity Security, as the case may be (all of the foregoing, whether with or without consideration, whether voluntarily or involuntarily or by operation of law).

2. Board.

(a) Directors. On the IPO Date, the Board shall be comprised of 9 Directors, which shall initially be the following individuals: Jason Wright and Roy Mackenzie, who shall be the initial “Apax Directors”; Stuart Nicoll and Domingo Miron, who shall be the initial “Accenture Directors”; Michael Jackowski, who shall be the initial “CEO Director”; and Chuck Moran, G. Larry Wilson, Francis J. Pelzer and Kathy Crusco, who shall be the initial “Independent Directors”.

(b) Nomination of Directors and Vacancies of Directors. Notwithstanding anything herein to the contrary, following the IPO Date:

(i) For so long as the Accenture Investors own at least:

(1) 20.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Accenture Investors shall have the right, but not the obligation, to nominate to the Board two (2) Directors; or

(2) 10.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, but less than 20.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Accenture Investors shall have the right, but not the obligation, to nominate to the Board one (1) Director.

Any such Director(s) shall be the “Accenture Director” or “Accenture Directors,” as applicable. The CEO Director and any Independent Director shall not be deemed to be Accenture Directors.

 

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(ii) For so long as the Apax Investor owns at least:

(1) 40.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Apax Investor shall have the right, but not the obligation, to nominate to the Board three (3) Directors;

(2) 20.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, but less than 40.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Apax Investor shall have the right, but not the obligation, to nominate to the Board two (2) Directors; or

(3) 10.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, but less than 20.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Apax Investor shall have the right, but not the obligation, to nominate to the Board one (1) Director.

Any such Director(s) shall be the “Apax Director” or “Apax Directors,” as applicable. The CEO Director and any Independent Director shall not be deemed to be an Apax Director.

(iii) Unless the Board otherwise requests, the office of a Director shall be vacated in the event of a reduction in the number of available Accenture Director or Apax Director designations in accordance with the provisions of Section 2(b)(i) or (ii), respectively, in which case the Accenture Investors or the Apax Investor, as the case may be, shall use its best efforts to obtain the resignation of its designee(s) from the Board and any committee on which such Director serves.

(iv) Subject to the Directors’ fiduciary duties, the Board shall include in the slate of nominees recommended by the Board, the Persons designated pursuant to Section 2(b)(i) and (ii).

(v) In the event that a vacancy is created at any time by the death, disability, removal or resignation of any Director designated pursuant to this Section 2, subject to their fiduciary duties under applicable law, the remaining Directors shall cause the vacancy created thereby to be filled, (1) in the case of a vacancy created by an Accenture Director, by a new designee of the Accenture Investors, (2) in the case of a vacancy created by an Apax Director, by a new designee of the Apax Investor, (3) in the case of a vacancy created by the Chief Executive Officer, by a replacement Chief Executive Officer, and (4) in the case of a vacancy created by an Independent Director, by a person identified by the Board (with the assistance of the Nominating and Corporate Governance Committee or similar committee of the Board) and nominated by the Nominating and Corporate Governance Committee or a similar committee of the Board, and the Company agrees to take, at any time and from time to time, all actions necessary to cause any vacancies to be filled pursuant to this Section 2(b)(v); provided, that notwithstanding the foregoing, in the absence of any designation from the Accenture Investors and/or Apax Investor holding the right to designate a Director as specified above, the Director previously designated by them and then serving shall be reelected if still eligible and willing to serve as provided herein and otherwise, such Board seat shall remain vacant.

(c) Nomination of Slate. At each meeting of the Stockholders of the Company at which Directors of the Company are to be elected, the Company agrees to use its best efforts to cause the election of the slate of nominees recommended by the Board which, subject to the Directors’ fiduciary duties, will include the Persons designated pursuant to Section 2(b).

 

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(d) Voting at Meetings of Stockholders. Each of the Investor Parties agrees to vote, and to procure the vote of its Affiliates, to vote in person or by proxy, or to act by written consent (if applicable) with respect to all Equity Securities of the Company having the right to vote for the election of Directors beneficially owned by it to cause the election of the Persons designated pursuant to Section 2(b).

(e) Board Observers. (x) For so long as the Apax Investor owns at least 5.0% of the outstanding Equity Securities of the Company that are not Restricted Shares but less than 10.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Apax Investor and (y), for so long as the Accenture Investors, collectively, own at least 5.0% of the outstanding Equity Securities of the Company that are not Restricted Shares but less than 10.0% of the outstanding Equity Securities of the Company that are not Restricted Shares, the Accenture Investors, collectively, shall each be entitled to appoint a non-voting observer to the Board (each, an “Observer”), which Observer shall be entitled to attend all meetings of the Board and any committees thereof, and to receive any notices, minutes, consents and other materials that were provided to the Directors at the same time and the same manner, subject to such Observer entering into a customary confidentiality agreement in form and substance reasonably approved by the Board; provided, that such Observer may be excluded from any portion of any such meetings and/or distributions of materials if the Company is advised by its legal counsel that such Observer’s attendance at such meeting or receipt of such materials would jeopardize any attorney-client privilege.

(f) Committees. Subject to applicable law, the Board may delegate any of its power and authority to manage the business and affairs of the Company to any standing or special committee upon such terms as it sees fit as permitted by law and as set forth in the resolutions creating such committee. As of the IPO Date, the Board has designated the following committees: the Audit Committee, the Nominating and Corporate Governance Committee and the Compensation Committee. As of the IPO Date, the Audit Committee, the Nominating and Corporate Governance Committee and the Compensation Committee shall be comprised of the persons identified in the section entitled “Management – Committees of the Board of Directors” in the Company’s Form S-1 registration statement filed with the U.S. Securities and Exchange Commission (the “SEC”) on August 12, 2020. For so long as the Accenture Investors or Apax Investor, as applicable, are entitled to designate one or more Directors pursuant to Section 2(b), such Investor Party shall be entitled to designate one member of each committee of the Board; provided, that, any special committee established to evaluate any transaction in which the Apax Group or the Accenture Group has an interest which is in conflict with the interests of the Company shall not include any Director designated by the Apax Investor and/or Accenture Investors, as applicable. It is understood by the parties hereto that the Apax Investor and/or Accenture Investors shall not be required to have its Directors represented on any committee and any failure to exercise such right in this section in a prior period shall not constitute any waiver of such right in a subsequent period. Each committee shall keep regular minutes and report to the Board when required.

 

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(g) Reimbursement of Expenses. Any Accenture Director and any Apax Director shall be entitled to the same cash compensation and participation in Company equity plans and same indemnification in connection with his or her role as a director as the other Directors, and each Accenture Director and each Apax Director shall be entitled to reimbursement for documented, reasonable out-of-pocket expenses incurred in attending meetings of the Board, or any committees thereof and meetings of the Stockholders of the Company (if attending in their capacity as a Director at the request of the Board).

3. Governance.

(a) Protective Provisions. Notwithstanding any other provision of this Agreement and to the fullest extent permitted by applicable law, in addition to the approval of the Directors, the following actions described in this Section 3(a) (collectively, the “Consent Matters”) shall require the prior written consent of the Accenture Investors and/or the Apax Investor as set out below:

(i) none of the following actions shall be taken by the Company, including any proposal by the Board to be put to the vote of the Stockholders of the Company with respect thereto, without (A) the prior written consent of the Accenture Investors for so long as they collectively own at least 5.0% of the outstanding Equity Securities that are not Restricted Shares and (B) the prior written consent of the Apax Investor for so long as it owns at least 5.0% of the outstanding Equity Securities that are not Restricted Shares (except as set forth in the proviso in Section 3(a)(i)(1)):

(1) amending, altering or changing, or waiving any rights under, this Agreement, the organizational documents, including the Certificate of Incorporation or the Bylaws of the Company, (which shall also be subject to Section 8(f)) and/or the organizational documents of any Subsidiary of the Company; provided, that, notwithstanding the foregoing, for so long as the Accenture Investors or Apax Investor, as applicable, own any outstanding Equity Securities, any amendment, alteration, or change to, or waiver under, other organizational documents, including the Certificate of Incorporation or the Bylaws of the Company, and/or the organizational documents of any Subsidiary of the Company that would adversely affect in any respect any rights specific to the Accenture Investors or Apax Investor shall (subject to applicable law) require the written consent of the Accenture Investors or Apax Investor, as applicable;

(2) authorizing or issuing any Equity Securities of the Company having rights, preferences or privileges that are superior or senior to the outstanding Common Stock (or any securities convertible or exchangeable therefor pursuant to their terms);

(3) any transaction with any Stockholder or Affiliate of a Stockholder or any director or officer of the Company or any of its Subsidiaries (other than employment agreements with officers not otherwise affiliated with a Stockholder and the Alliance Agreement);

(4) the Company or any of its Subsidiaries entering into any line of business outside of (A) providing software, computer programs and applications to clients and performing services with respect to such software, computer programs and applications and (B) performing services with respect to related third-party software, computer programs and applications of such clients as is required in connection with the performance of services to such clients;

 

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(5) changing the entity classification of the Company or any of its Subsidiaries or otherwise entering into any restructuring transaction, in each case, if such action would adversely change the tax treatment of the Accenture Investors’ investment in the Company, as applicable, or otherwise result in adverse tax consequences to the Accenture Group (and such consent shall not be unreasonably withheld, conditioned or delayed);

(6) causing the Company or the Disco Partnership to be treated as having a permanent establishment in any jurisdiction other than the jurisdiction of its formation or incorporation, as applicable;

(7) all increases to the size of the Board that expands the Board to more than 9 Directors;

(8) Transferring or otherwise disposing of any Equity Interests of, or liquidating, dissolving, merging or otherwise entering into a reorganization transaction with respect to Disco Cayman;

(9) Transferring or otherwise disposing of any Equity Interests of, or liquidating, dissolving, merging or otherwise entering into a reorganization transaction with respect to Duck Creek US;

(10) approving the settlement, resolution or concession of (or any material action with respect to) any examination or administrative or judicial proceeding of the Disco Partnership’s affairs by tax authorities that relates to any taxable period (or portion thereof) that begins prior to the IPO Date (a “Pre-IPO Tax Matter”);

(11) winding up the Company; and

(12) entering into any agreement with respect to the matters described in the foregoing clauses (1) through (11) or taking any such action indirectly.

(ii) none of the following actions shall be taken by the Company, including any proposal by the Board to be put to the vote of the Stockholders of the Company with respect thereto, without (A) the prior written consent of the Accenture Investors for so long as the Accenture Investors collectively own at least 20.0% of the outstanding Equity Securities that are not Restricted Shares and (B) the prior written consent of the Apax Investor for so long as it owns at least 20.0% of the outstanding Equity Securities that are not Restricted Shares:

(1) effecting any (A) acquisition of the equity ownership of, or substantially all of the assets, properties or business of, any Person, in one transaction or a series of related transactions, (B) divestiture, in one transaction or a series of related transactions, of any Equity Securities of the Subsidiaries of the Company or material assets of the Company and/or its Subsidiaries, or (C) other material strategic transactions, in each case ((A), (B) and (C)) that are inconsistent with either (x) the Company’s business objectives as identified by the Board or (y) the Roll-Up Strategy;

 

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(2) the declaration or payment of any dividend or other distribution to the Stockholders by the Company or redemption, repurchase or exchange (as applicable) of any Equity Securities of the Company, from proceeds from the creation or incurrence of indebtedness and related transactions (including the creation or incurrence of such indebtedness) if the payment thereof would result in the Company and its Subsidiaries having indebtedness for borrowed money (excluding intercompany indebtedness) in excess of four times the Company’s Adjusted EBITDA for the 12-month period ending on the last day of the most recently completed fiscal quarter;

(3) issuing or granting any Equity Securities of the Company or its Subsidiaries, other than (A) grants under the Company’s Equity Incentive Plan, or (B) in connection with mergers or acquisitions in accordance with the Roll-Up Strategy; provided, that in each case ((A) and (B)) such issuance or grant (x) is not made to a Restricted Person (other than in connection with a Company Sale after August 1, 2021), and (y) is on terms as may have been previously consented to by the Accenture Investors and/or Apax Investor, as applicable; and

(4) entry by the Company into any agreement with respect to the matters described in the foregoing clauses (1) through (3) or taking any such action indirectly.

4. Restrictions on Transfer.

(a) Restricted Persons. The Apax Investor may not Transfer any Equity Securities of the Company to a Restricted Person without the prior written consent of the Accenture Investors; provided, that the Apax Investor may Transfer Equity Securities of the Company to a Restricted Person in connection with a Company Sale. If the Accenture Investors cease to own any Equity Securities of the Company, this Section 4(a) shall terminate and be of no further force or effect.

(b) Competitors and Financial Sponsors. Without the prior written consent of the Apax Investor, the Accenture Investors may not Transfer any Equity Securities of the Company to a Competitor. At such time as the Apax Investor ceases to own any Equity Securities of the Company, this Section 4(b) shall terminate and be of no further force or effect.

(c) Joinder. No Transfer shall be effective or valid hereunder unless the transferee has previously executed and delivered a joinder to this Agreement.

5. Opportunities.

(a) Rights to Opportunities. Except as otherwise provided in the Certificate of Incorporation, the Bylaws, this Agreement, the Restrictive Covenants Side Letter or the Alliance Agreement, (i) each Investor Party and its officers, directors and Affiliates may engage in or possess any interest in other investments, business ventures or Persons of any nature or description, independently or with others, similar or dissimilar to, or that competes with, the investments or business of the Company or any of its Subsidiaries, and may provide advice and other assistance to any such investment, business venture or Person; (ii) the Company or any of its Subsidiaries and the Stockholders shall have no rights by virtue of this Agreement in and to such investments, business ventures or Persons or the income or profits derived therefrom; and (iii) the pursuit of any such investment or venture, even if competitive with the business of the Company or any of its Subsidiaries, shall, to the maximum extent permitted by applicable law and subject to compliance with the Certificate of Incorporation, the Restrictive Covenants Side Letter and the Alliance Agreement not be deemed wrongful or improper and shall not constitute a conflict of interest or breach of fiduciary or other duty with respect to the Company or any of its Subsidiaries or the Stockholders.

 

12

(b) Presentation of Opportunities. Except as otherwise provided in the Certificate of Incorporation, the Bylaws, this Agreement, the Restrictive Covenants Side Letter or the Alliance Agreement to the maximum extent permitted by applicable law, no Investor Party shall be obligated to present any particular investment or business opportunity to the Company or any of its Subsidiaries even if such opportunity is of a character that, if presented to the Company or any of its Subsidiaries, could be pursued by the Company or any of its Subsidiaries, and any Investor Party and its officers, directors and Affiliates shall have the right to pursue for its own account (individually or as a partner or a fiduciary) or to recommend to any other Person any such investment opportunity.

(c) Waiver. To the maximum extent permitted by applicable law, the Company, on behalf of itself and its Subsidiaries, waives and renounces any right, interest or expectancy of the Company and/or any of its Subsidiaries in, or being offered an opportunity to participate in, business opportunities that are from time to time presented to an Investor Party or business opportunities of which an Investor Party gains knowledge, even if the opportunity is competitive with the business of the Company and/or any of its Subsidiaries.

6. General Indemnification.

(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Investor Party and its Affiliates and their respective officers, directors, employees, managers, partners and agents and each Person who controls (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act) such Investor Party or such other indemnified Person against any and all losses, claims, damages, liabilities and expenses (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses) (collectively, the “Losses”) incurred by such Investor Party or other indemnified Person before or after the date of this Agreement, in each case, based on, arising out of, resulting from or in connection with any Action and based on, arising out of, pertaining to or in connection with (i) any untrue statement or alleged untrue statement of a material fact contained in any Filing or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and/or (ii) any Action to which any Investor Party or other indemnified Person is made a party or involved in its capacity as a stockholder or owner of securities of the Company (or in their capacity as an officer, director, employee, manager, partner, agent or controlling person of such Investor Party or other such indemnified party), provided that the foregoing indemnification rights shall not be available to the extent that (A) any such Losses are incurred as a result of such Investor Party’s willful misconduct or gross negligence, (B) any such Losses are incurred as a result of non-compliance by such Investor Party with any laws or regulations applicable to any of them, (C) any such Losses are incurred as a result of non-compliance by such Investor Party with its obligations under this Agreement, (D) subject to the rights of contribution provided for below, to the extent indemnification for any Losses would violate any applicable law, regulation or public policy; or (E) in the case of clause (i) above, other than misstatements or omissions made in reliance on information relating to and furnished by such Investor Party in writing expressly for use in the preparation of such Filing. For purposes of this

 

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Section 6(a), none of the circumstances described in the limitations contained in the proviso in the immediately preceding sentence shall be deemed to apply absent a final non-appealable judgment of a court of competent jurisdiction to such effect, in which case to the extent any such limitation is so determined to apply to any Investor Party or such other indemnified Person as to any previously advanced indemnity payments made by the Company under this Section 6(a), then such payments shall be promptly repaid by such Investor Party or such other indemnified Person to the Company. The rights of any Investor Party or such other indemnified Person to indemnification hereunder will be in addition to any other rights any such party may have under any other agreement or instrument referenced above or any other agreement or instrument to which such Investor Party or such other indemnified Person is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation. In the event of any payment of indemnification pursuant to this Section 6(a), so long as any Investor Party or such other indemnified Person is fully indemnified for all Losses, the Company will be subrogated to the extent of such payment to all of the related rights of recovery of the Investor Party or such other indemnified Person to which such payment is made against all other Persons. The indemnity agreement contained in this Section 6(a) shall be applicable whether or not any Action or the facts or transactions giving rise to such Action arose prior to, on or subsequent to the date of this Agreement.

(b) Rights Non-Exclusive. The rights to indemnification and the payment of expenses incurred in defending an Action in advance of its final disposition conferred in this Section 6 shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Agreement, any other agreement or otherwise.

(c) Insurance. The Company shall cause the Disco Partnership to maintain insurance, at its expense, and shall cause each Subsidiary to maintain insurance at such Subsidiary’s expense, on its own behalf and on behalf of any person who is or was at any time after the Original Closing Date a director, officer, or employee of the General Partner, or a director, officer, employee, fiduciary or agent of the Disco Partnership or any of its Subsidiaries against any liability asserted against him or her and incurred by him or her in any such capacity, whether or not the Disco Partnership would have the power to indemnify such person against such liability under this Section 6. For so long as the Accenture Investors have a right to designate at least one director to the Board, the Accenture Investors shall have the right to review such insurance, and upon request, be provided a copy of such insurance.

(d) Expenses. The Company shall pay any expenses incurred by any Person described in Section 6(a) in defending an Action periodically upon receipt of an undertaking by or on behalf of such Person to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Company.

7. Tax Matters.

(a) The Accenture Investors shall have the right to participate, at their own expense and through representation of their choice, in any Pre-IPO Tax Matter, including through attending any meetings or proceedings with tax authorities, joining in preparation of defense in any such examination or proceeding, and reviewing and commenting on any documents prior to submission in connection with the foregoing.

 

14

(b) The Company (and its applicable withholding agents and paying agents) shall only be entitled to deduct and withhold taxes on any payments on or with respect to the Equity Securities of the Company to the extent required by applicable tax law; provided that, if the Company determines that an amount is required to be deducted and withheld with respect to the Equity Securities held by an Accenture Investor or the Apax Investor, at least fifteen (15) business days prior to the date the applicable payment is scheduled to be made, the Company shall (i) provide the applicable Accenture Investor or Apax Investor, as applicable, with written notice of the intent to deduct and withhold, which notice shall include the basis for the withholding and an estimate of the amount proposed to be deducted and withheld, and (ii) provide the applicable Accenture Investor or Apax Investor, as applicable, with a reasonable opportunity to provide forms or other evidence that would exempt such amounts from withholding, and shall otherwise reasonably cooperate to minimize any such withholding. Upon request by the Company in writing, each Accenture Investor and the Apax Investor shall provide the Company with a properly completed and duly executed IRS Form W-9 or applicable IRS Form W-8.

8. Miscellaneous.

(a) IPO Expenses. The Company shall pay all IPO Expenses of the Company and each Investor Party in connection with the IPO.

(b) Confidentiality.

(i) Each Investor Party agrees to hold, and to use its reasonable efforts to cause its authorized representatives to hold, in strict confidence, the books and records of the Company and all information relating to the Company’s properties, operations, financial condition or affairs, in each case, which are furnished to it pursuant to the terms of this Agreement, including to a Director appointed in accordance with this Agreement (collectively, the “Confidential Information”). Notwithstanding anything herein to the contrary, Confidential Information shall not include any information that (i) is or becomes generally available to the public other than as a result of an unauthorized disclosure by an Investor Party, (ii) is or becomes available to an Investor Party or any of its Authorized Recipients (as defined below) on a nonconfidential basis from a third-party source, which source, to the knowledge of such Investor Party, is not bound by a legal duty of confidentiality to the Company in respect of such Confidential Information, or (iii) is independently developed by an Investor Party or its Authorized Recipients. Notwithstanding anything herein to the contrary, an Investor Party may disclose any Confidential Information to (x) any of its representatives and (y) any Affiliates (the persons in clauses (x) and (y), collectively, the “Authorized Recipients”). If an Investor Party or any of its Authorized Recipients is required or requested by law or regulation or any legal or judicial process to disclose any Confidential Information, if disclosure of Confidential Information is required by any Governmental Entity having authority over such Investor Party or Authorized Recipient, or if disclosure of Confidential Information is required in connection with the tax affairs of such Investor Party or Authorized Recipient, such Investor Party or Authorized Recipient, as the case may be, may disclose only such portion of such Confidential Information as may be required or requested without liability hereunder.

 

15

(ii) For the avoidance of doubt, any Accenture Director and any Apax Director may disclose any information about the Company and its Subsidiaries received by such Accenture Director or Apax Director (whether or not in his/her capacity as a Director of the Company) to, in the case of an Accenture Director, the other Accenture Director and to the Accenture Investor, and, in the case of an Apax Director, the other Apax Directors and the Apax Investors, provided that any such information disclosed that would otherwise constitute Confidential Information shall be treated by the Accenture Investors and the Apax Investors, as applicable, in accordance with this Section 8(b).

(c) Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when (a) delivered personally to the recipient, (b) sent by facsimile to the recipient (with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that same day) if sent by facsimile before 5:00 p.m. New York time on a Business Day, and otherwise on the next Business Day, (c) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid) or (d) transmitted, if sent by email transmission before 5:00 p.m. New York time on a Business Day, and otherwise on the next Business Day. Such notices, demands and other communications shall be sent to the Company and the Investor Parties at the addresses indicated below or, in each case, to any such other address or to the attention of such other person as the recipient party has specified by prior written notice to the sending party.

If to the Company, to:

Duck Creek Technologies, Inc.

22 Boston Wharf Road

Boston, MA 02210

USA

Attention: Michael Jackowski

Email: michael.a.jackowski@duckcreek.com

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, NY 10001

USA

Attention: Ann Beth Stebbins

Email: annbeth.stebbins@skadden.com

If to the Apax Investor, to:

Disco (Guernsey) Holdings L.P. Inc.

c/o Apax Partners, L.P.

601 Lexington Ave., 53^rd Floor

New York, NY 10022

USA

Attention: Jason Wright

Email: Jason.wright@apax.com

 

16

with a copy (which shall not constitute notice) to:

Skadden, Arps, Slate, Meagher & Flom LLP

One Manhattan West

New York, NY 10001

USA

Attention: Ann Beth Stebbins

Email: annbeth.stebbins@skadden.com

If to the Accenture Investors, to:

Accenture LLP

161 North Clark Street

Chicago, IL 60601

USA

Attention: Aaron Holmes

        Siobhan McCleary

Email: aaron.holmes@accenture.com

            siobhan.mccleary@accenture.com

with a copy (which shall not constitute notice) to:

Kirkland & Ellis LLP

601 Lexington Avenue

New York, NY 10022

USA

Attention: Sarkis Jebejian, P.C.

        David B. Feirstein

        Keri Schick Norton

Email: sarkis.jebejian@kirkland.com

            david.feirstein@kirkland.com

            keri.schicknorton@kirkland.com

(d) Severability. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or any other jurisdiction, but this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision had never been contained herein.

(e) Headings and Sections. The descriptive headings of this Agreement are inserted for convenience only and do not constitute a substantive part of this Agreement. Whenever required by the context, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. The use of the words “including” or “include” in this Agreement shall be by way of example rather than by limitation. Reference to any agreement, document or instrument means such agreement, document or instrument as amended or otherwise modified from time to time in accordance with the terms thereof, and if applicable hereof. The use of the words “or,” “either” and “any” shall not be exclusive.

 

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(f) Amendment. This Agreement may be amended, supplemented or otherwise modified only by a written instrument executed by the parties hereto. No wavier by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and executed by the party so waiving. The waiver by any party hereto of a breach of any provision of this Agreement will not operate or be construed as a waiver of any subsequent breach.

(g) Waiver. No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall constitute a waiver of any such breach or any other covenant, duty, agreement or condition. Any waiver by the Company or any Investor Party of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall only be effective if executed in writing by the party making such waiver.

(h) Successors and Assigns. All covenants and agreements contained in this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns; provided, that no Person claiming by, through or under a party (whether as such party’s successor in interest or otherwise), as distinct from such party itself, shall have any rights as, or in respect to, a party to this Agreement (including the right to approve or vote on any matter or to notice thereof).

(i) Counterparts. This Agreement may be executed simultaneously in two or more separate counterparts, any one of which need not contain the signatures of more than one party, but each of which shall be an original and all of which together shall constitute one and the same agreement binding on all the parties hereto.

(j) Remedies. Each party hereto shall have all rights and remedies set forth in this Agreement and all rights and remedies which such Person has been granted at any time under any other agreement or contract and all of the rights which such Person has under any applicable law. Any Person having any rights under any provision of this Agreement or any other agreements contemplated hereby shall be entitled to enforce such rights specifically (without posting a bond or other security), to recover damages by reason of any breach of any provision of this Agreement and to exercise all other rights granted by law.

(k) Governing Law; Venue and Forum. This Agreement and the exhibits and schedules hereto shall be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware. Each of the parties hereto irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court within the State of Delaware, or, if both the Court of Chancery of the State of Delaware and the federal courts within the State of Delaware decline to accept

 

18

jurisdiction over a particular matter, any other state court within the State of Delaware, and, in each case, any appellate court therefrom (together, the “Chosen Courts”), for the purposes of any Action arising out of this Agreement (and agrees that no such Action relating to this Agreement shall be brought by it or any of its Subsidiaries except in such courts). Each of the parties further agrees that, to the fullest extent permitted by applicable law, service of any process, summons, notice or document by U.S. registered mail to such person’s respective address set forth in Section 8(a) shall be effective service of process for any Action in the State of Delaware with respect to any matters to which it has submitted to jurisdiction as set forth above in the immediately preceding sentence. Each of the parties hereto irrevocably and unconditionally waives (and agrees not to plead or claim), any objection to the laying of venue of any Action arising out of this Agreement or any of the other transactions contemplated by this Agreement in the Chosen Courts, or that any such Action, brought in any such court has been brought in an inconvenient forum.

(l) Mutual Waiver of Jury Trial. As a specifically bargained inducement for each of the parties to enter into this Agreement (with each party having had opportunity to consult counsel), each party hereto expressly and irrevocably waives the right to trial by jury in any lawsuit or legal proceeding relating to or arising in any way from this Agreement or the transactions contemplated herein, and any lawsuit or legal proceeding relating to or arising in any way to this Agreement or the transactions contemplated herein shall be tried in a court of competent jurisdiction by a judge sitting without a jury.

(m) No Strict Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. Wherever a conflict exists between this Agreement and any other agreement, this Agreement shall control but solely to the extent of such conflict.

(n) Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof. There are no other agreements, representations, warranties, covenants or undertakings with respect to the subject matter hereof other than those expressly set forth herein.

(o) Delivery by Facsimile or Email. This Agreement, the agreements referred to herein, and each other agreement or instrument entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, to the extent signed and delivered by means of a facsimile machine or email with scan or facsimile attachment, 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. No party hereto or to any such agreement or instrument shall raise the use of a facsimile machine or email 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 as a defense to the formation or enforceability of a contract, and each such party forever waives any such defense.

 

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(p) Further Action. The parties agree to execute and deliver all documents, provide all information and take or refrain from taking such actions as may be necessary or appropriate to achieve the purposes of this Agreement.

(q) Termination. This Agreement shall terminate as it relates to each Investor Party at such time as such Investor Party ceases to own any Equity Securities of the Company, except that such termination shall not affect (i) rights perfected or obligations incurred by such Investor Party under this Agreement prior to such termination, and (ii) rights or obligations expressly stated to survive such cessation of ownership of Equity Securities of the Company, provided further that any rights of the Investor Parties under the Registration Rights Agreement shall survive in accordance with the terms of the Registration Rights Agreement; and provided further that any indemnification rights of the Investor Parties shall survive such termination.

(r) Effectiveness. This Agreement shall become effective upon completion of the IPO on the IPO Date; provided, that this Agreement shall be of no force and effect (i) prior to the completion of IPO and (ii) if the IPO has not been consummated within ten (10) Business Days from the date of this Agreement.

[Signature pages follow]

 

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IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first above written.

 

 

[Signature Page to Stockholders Agreement]

 

[Signature Page to Stockholders Agreement]

 

[Signature Page to Stockholders Agreement]

 

[Signature Page to Stockholders Agreement]

Exhibit 10.2

Final Form

SECOND AMENDED AND RESTATED

REGISTRATION RIGHTS AGREEMENT

By and Among

DUCK CREEK TECHNOLOGIES, INC.,

DISCO (GUERNSEY) HOLDINGS L.P. INC.,

ACCENTURE LLP,

ACCENTURE HOLDINGS B.V.,

CLASS E INVESTORS,

AND

THE PERSONS WHOSE NAMES APPEAR IN SCHEDULE A HERETO

 

 

Dated as of August 18, 2020

 

 

 

 

TABLE OF CONTENTS

 

						Page
ARTICLE I. DEFINITIONS; RULES OF CONSTRUCTION							1
		SECTION 1.01.		Definitions			1
ARTICLE II. REGISTRATION RIGHTS							6
		SECTION 2.01.		Company Registration.			6
		SECTION 2.02.		Demand Registration Rights.			7
		SECTION 2.03.		Synthetic Secondary Transactions			10
		SECTION 2.04.		Priority on Registrations			11
		SECTION 2.05.		Registration Procedures			12
		SECTION 2.06.		Registration Expenses.			16
		SECTION 2.07.		Indemnification.			17
		SECTION 2.08.		1934 Act Reports			19
		SECTION 2.09.		Holdback Agreements			20
		SECTION 2.10.		Blackout Periods			21
		SECTION 2.11.		Participation in Registrations			21
		SECTION 2.12.		Other Registration Rights			21
		SECTION 2.13.		Rule 144			21
		SECTION 2.14.		Cooperation			22
ARTICLE III. MISCELLANEOUS							22
		SECTION 3.01.		Notices			22
		SECTION 3.02.		Binding Effect; Benefits; Entire Agreement			22
		SECTION 3.03.		Waiver			23
		SECTION 3.04.		Amendment			23
		SECTION 3.05.		Assignability			24
		SECTION 3.06.		Applicable Law			24
		SECTION 3.07.		Specific Performance			24
		SECTION 3.08.		Severability			25
		SECTION 3.09.		Additional Securities Subject to Agreement			25
		SECTION 3.10.		Section and Other Headings			25
		SECTION 3.11.		Counterparts			25
SCHEDULE A							50

EXHIBIT A — Joinder Agreement

 

 

i

THIS SECOND AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is dated as of August 18, 2020, by and among, Duck Creek Technologies, Inc., a Delaware corporation (the “Company”), Disco (Guernsey) Holdings L.P. Inc., a Guernsey limited partnership (the “Apax Investor”), Accenture Holdings BV, a private limited liability company organized under the Laws of the Netherlands, and Accenture LLP, an Illinois limited partnership (collectively, the “Accenture Investors”), the investors identified on Schedule A hereto as the Class E Investors (collectively, the “Class E Investors”) and the individuals identified on Schedule A hereto as Management Holders (collectively, the “Management Holders” and together with the Apax Investor, the Accenture Investors and the Class E Investors, the “Contributing Investors”);

WHEREAS, Disco Topco Holdings (Cayman), L.P., a Cayman Islands exempted limited partnership (“Holdings”), the Apax Investor, the Accenture Investors, the Class E Investors and the Management Holders are party to that certain Amended and Restated Registration Rights Agreement, dated as of November 13, 2019 (as supplemented and amended to date, the “Existing RRA”);

WHEREAS, in connection with the initial public offering (the “Initial Public Offering”) of the Company’s common stock, par value $0.01 per share (“Common Shares”), the Company desires to consummate the transactions described in the Registration Statement on Form S-1 (Registration No. 333-240050), including assuming the obligations of Holdings hereunder; and

WHEREAS, the Company, Holdings, the Apax Investor, the Accenture Investors, the Class E Investors and the Management Holders desire to amend and restate the Existing RRA in its entirety and enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the parties mutually agree as follows:

ARTICLE I.

DEFINITIONS; RULES OF CONSTRUCTION

SECTION 1.01. Definitions. The following terms, as used herein, have the following meanings:

“1933 Act” means the Securities Act of 1933, as amended.

“1934 Act” means the Securities Exchange Act of 1934, as amended.

“Advice” has the meaning set forth in Section 2.05.

“Affiliate” when used with reference to another Person means any Person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with, such other Person. For the avoidance of doubt, solely with respect to the KAR Investors, each of Virtus Variable Insurance Trust and Virtus Equity Trust are operated as series investment fund trusts, and any series investment funds of either Virtus Variable Insurance Trust or Virtus Equity Trust shall be deemed Affiliates of the KAR Investors for all purposes of this Agreement.

“Agreement” has the meaning set forth in the preamble to this Agreement.

“Accenture Demand Holder” means each of the Accenture Investors and their Permitted Transferees, each acting on behalf of the Holders of such Accenture Investors’ Entitled Common Shares, individually or jointly.

“Accenture Group” means the Accenture Investors and their Affiliates.

“Accenture Investors” has the meaning set forth in the preamble to this Agreement.

“AIG Investor” means AIG DECO Fund I, L.P.

“Apax Demand Holder” means the Apax Investor and its Permitted Transferees, each acting on behalf of the Holders of the Apax Investor’s Entitled Common Shares, individually or jointly.

“Apax Group” means the Apax Investor and its Affiliates (which shall include for these purposes any private equity, investment or similar fund advised by Apax Partners LP).

“Apax Investor” has the meaning set forth in the preamble to this Agreement.

“Blackout Period” has the meaning set forth in Section 2.10.

“Board of Directors” means the Board of Directors of the Company or a duly authorized committee thereof.

“Business Day” means any calendar day other than a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required to close.

“Chubb Investor” means Chubb Tempest Reinsurance Ltd.

“Class E Investors” has the meaning set forth in the preamble to this Agreement.

“Commission” means the U.S. Securities and Exchange Commission.

“Common Shares” has the meaning set forth in the recitals to this Agreement.

“Company” has the meaning set forth in the preamble to this Agreement.

“Company Initiated Registration” means any registration of securities under the 1933 Act initiated by the Company for its own account.

“Contributing Investors” has the meaning set forth in the preamble to this Agreement.

 

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“Demand Holders” means, as applicable individually or collectively, if the context so requires, the Apax Investor and the Accenture Investors, each of which owns one or more Entitled Common Shares from time to time.

“Demand Registration” has the meaning set forth in Section 2.02(a).

“Dragoneer Demand Holder” means the Dragoneer Investor and its Permitted Transferees, each acting on behalf of the Holders of the Dragoneer Investor’s Entitled Common Shares, individually or jointly.

“Dragoneer Investor” means Drake DF Holdings, LP and its Affiliates.

“DH Representative” has the meaning set forth in Section 2.02(d).

“Effectiveness Period” has the meaning set forth in Section 2.02(a).

“Entitled Common Shares” means the outstanding Common Shares.

“Holder” means any holder from time to time of Common Shares that is either a party to this Agreement or has executed a Joinder Agreement to become a party hereto.

“Holdings” has the meaning set forth in the recitals to this Agreement.

“Incidental Demand Holder” has the meaning set forth in Section 2.02(a).

“Initial Public Offering” has the meaning set forth in the recitals to this Agreement.

“Insight Demand Holders” means the Insight Investors and Permitted Transferees of an Insight Investor, each acting on behalf of the Holders of the Insight Investors’ Entitled Common Shares, individually or jointly.

“Insight Investors” means, collectively, Insight Venture Partners X, L.P., a Cayman Islands exempted limited partnership, Insight Venture Partners (Cayman) X, L.P., a Cayman Islands exempted limited partnership, Insight Venture Partners (Delaware) X, L.P., a Delaware limited partnership, and Insight Venture Partners X (Co-Investors), L.P., a Cayman Islands exempted limited partnership.

“IPO Lock-up End Date” has the meaning set forth in Section 2.01(a).

“Joinder Agreement” means a joinder agreement, a form of which is attached as Exhibit A to this Agreement.

“KAR Investors” means the investors identified as “KAR Investors” on Schedule B hereto.

“Liberty Mutual Investor” means Liberty Mutual Investment Holdings LLC.

 

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“Lock-up Period” means with respect to any Registration which involves an underwritten offering, the period beginning 10 days prior to the “pricing” of such offering and ending 90 days after the “pricing” of such offering (in the case of any offering other than the Initial Public Offering) (or such shorter or longer period as the managing underwriter for any underwritten offering may require, so long as such shorter or longer period applies equally to all Holders (other than small non-employee Holders in accordance with customary underwriting practices)).

“Major Investor” means any of the AIG Investor, the Chubb Investor, the Dragoneer Investor, the Insight Investors, the Neuberger Investors, the Temasek Investor, the KAR Investors and the Whale Rock Investors.

“Management Holders” has the meaning set forth in the preamble to this Agreement.

“Neuberger” means Neuberger Berman Investment Advisers LLC.

“Neuberger Demand Holders” means the Neuberger Investors and Permitted Transferees of a Neuberger Investor, each acting on behalf of the Holders of the Neuberger Investors’ Entitled Common Shares, individually or jointly.

“Neuberger Investors” means the investors identified as “Neuberger Investors” on Schedule B hereto.

“Permitted Transferee” means (i) with respect to the Apax Investor (or any other member of the Apax Group), any other member of the Apax Group (other than Affiliates of the Apax Investor who are limited partners or portfolio companies of such Person or its Affiliates), (ii) with respect to the Accenture Initial Investors (or any other member of the Accenture Group), any other member of the Accenture Group, (iii) with respect to a Management Holder, such Management Holder’s spouse, parents, children or siblings (whether natural, step or by adoption), grandchildren (whether natural, step or by adoption) or to a trust, partnership, corporation or limited liability company controlled by such individual and established solely for the benefit of such Persons and (iv) with respect to a Class E Investor, any Affiliates of such Class E Investor (other than a portfolio company of such Person).

“Person” means an individual, a partnership (including a limited partnership), a corporation, a limited liability company, an exempted company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, association or other entity or a Governmental Entity.

“Piggyback Holder” has the meaning set forth in Section 2.01(a).

“Piggyback Shares” has the meaning set forth in Section 2.01(a).

“Piggyback Underwritten Offering” has the meaning set forth in Section 2.01(a).

 

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“Registrable Shares” means (i) any and all Entitled Common Shares held by a Holder immediately following the closing of the Initial Public Offering and, with respect to the Apax Investor and Accenture Investors, any Entitled Common Shares held by such Holder following the Initial Public Offering and (ii) any other securities issued and issuable therefor or with respect to such Entitled Common Shares, whether by way of stock split, stock dividend, reclassification, subdivision or reorganization, recapitalization, distribution or similar event. As to any particular Registrable Shares, such securities shall cease to constitute Registrable Shares when (1) a registration statement with respect to the offering of such securities by the holder thereof shall have been declared effective under the 1933 Act and such securities shall have been disposed of by such holder pursuant to such registration statement, (2) such securities have been sold to the public pursuant to Rule 144 (or any similar provision then in force) promulgated under the 1933 Act, (3) such securities shall have been otherwise transferred to a Person (other than a Permitted Transferee) and subsequent disposition of such securities shall not require registration or qualification under the 1933 Act or any similar state law then in force and, if such securities are in certificated form, newly issued certificates for such securities that do not bear a legend restricting further transfer shall have been delivered by the Company or its transfer agent, (4) such securities shall have ceased to be outstanding or (5) solely with respect to Registrable Shares owned by any Class E Investors, such securities may be resold pursuant to Rule 144 (or any similar provision then in force) without regard to volume limitations or manner of sale, whether or not any such sale has occurred.

“Registration” has the meaning set forth in Section 2.05.

“Request Notice” has the meaning set forth in Section 2.02(a).

“Revoking Holders” has the meaning set forth in Section 2.02(e).

“Share Purchase Agreement” has the meaning set forth in Section 2.03.

“Shelf Registration” means the Apax Shelf Registration and the Accenture Shelf Registration.

“Shelf Registration Statement” has the meaning set forth in Section 2.01(a).

“Temasek Investor” means Birchtree Fund Investments Private Limited and its Affiliates.

“Synthetic Secondary Transaction” has the meaning set forth in Section 2.03.

“Undesignated Registrable Shares” has the meaning set forth in Section 2.01(b).

“Whale Rock Investors” means the investors identified as “Whale Rock Investors” on Schedule B hereto.

 

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ARTICLE II.

REGISTRATION RIGHTS

SECTION 2.01. Company Registration.

(a) Right to Piggyback on Offering of Common Shares. Subject to Section 2.01(b), Section 2.01(c) and Section 2.04, if at any time or from time to time following the date that is 180 days following the closing of the Initial Public Offering (the “IPO Lock-up End Date”), the Company proposes to publicly file (i) a prospectus supplement to an effective shelf registration statement for a delayed or continuous offering pursuant to Rule 415 under the 1933 Act (a “Shelf Registration Statement”), or (ii) a registration statement (other than (1) on Form S-4 or Form S-8 or any similar successor forms or another form used for a purpose similar to the intended use for such forms or (2) a Shelf Registration Statement), in either case, for the sale of Common Shares for its own account, or for the benefit of the holders of its Common Shares (other than pursuant to Section 2.02) in an underwritten or other registered public offering (collectively, a “Piggyback Underwritten Offering”), then as soon as reasonably practicable, but not less than 15 Business Days (or five Business Days in the case of a Piggyback Underwritten Offering that is structured as a “block” trade) prior to the later of the public filing of (x) any preliminary prospectus supplement relating to such Piggyback Underwritten Offering pursuant to Rule 424(b) under the 1933 Act, (y) any prospectus supplement relating to such Piggyback Underwritten Offering pursuant to Rule 424(b) under the 1933 Act (if no preliminary prospectus supplement is used), other than, in the case of clause (x) or (y), any preliminary prospectus supplement or prospectus supplement relating to a registration statement for which notice was previously given, or (z) such registration statement, as the case may be, the Company shall give written notice of such proposed Piggyback Underwritten Offering to the Holders and such notice shall offer such Holders the opportunity to include in such Piggyback Underwritten Offering such number of Entitled Common Shares as each such Holder may request (the “Piggyback Shares”). Each such Holder shall have 10 Business Days (or two Business Days in the case of a Piggyback Underwritten Offering that is structured as a “block” trade) after receiving such notice to request in writing to the Company inclusion of Piggybank Shares in such Piggyback Underwritten Offering. Upon receipt of any such request for inclusion from a Holder received within the specified time (each, a “Piggyback Holder”), the Company shall use reasonable best efforts to effect the registration in any registration statement described in this Section 2.01(a) of any Piggyback Shares requested to be included (or, in accordance with Section 2.03, such number of Common Shares to be sold by the Company in a Synthetic Secondary Transaction with respect to such Piggyback Shares), in all cases, in accordance with the terms set forth in this Agreement. If no request for inclusion from a Holder is received within the specified time, such Holder shall have no further right to participate in such Piggyback Underwritten Offering. Prior to the launch of any Piggyback Underwritten Offering, any Holder shall have the right to withdraw its request for inclusion of its Piggyback Shares in any registration statement pursuant to this Section 2.01(a) by giving written notice to the Company, which withdrawal shall be irrevocable and, following such withdrawal, such Holder shall no longer have any right to include Piggyback Shares in the Piggyback Underwritten Offering as to which such withdrawal was made. No registration of Piggyback Shares effected under this Section 2.01 (including the registration of such number of Common Shares to be sold by the Company in a Synthetic Secondary Transaction with respect to such Piggyback Shares) shall relieve the Company of its obligations to effect any registration upon demand under Section 2.02.

(b) Right to Piggyback on Shelf Registration. The Company shall give each Holder 15 Business Days’ notice prior to the public filing of a Shelf Registration Statement and, upon the written request of any Holder, received by the Company within ten (10) Business Days of such notice, the Company shall include in such Shelf Registration Statement a number of Common Shares equal to the aggregate number of Registrable Shares requested to be included (and to the extent permitted, without naming any requesting Holder as a selling stockholder and including only a generic description of the Holder of such securities) (the “Undesignated

 

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Registrable Shares”). The Company shall not be required to give notice to any Holder in connection with a filing pursuant to Section 2.01(a)(i) related to a Shelf Registration Statement filed pursuant to this Section 2.01(b) unless such Holder provided such notice to the Company pursuant to this Section 2.01(b) and requested that its Undesignated Registrable Shares be included in the Shelf Registration Statement related to such filing. The Holders agree that any Shelf Registration Statement filed pursuant to this Section 2.01 with respect to a Holder’s Undesignated Registrable Shares may also cover any other securities of the Company.

(c) Delay or Abandonment of Registration or Offering. The Company shall have the right to delay, terminate or withdraw any registration or Piggyback Underwritten Offering prior to the effectiveness of such registration or the completion of such offering whether or not any Holder has elected to include Registrable Shares in such registration. In the case of the delay, termination or withdrawal referred to in the immediately preceding sentence, all expenses incurred in connection with such registration or Piggyback Underwritten Offering shall be borne entirely by the Company as set forth in Section 2.06.

SECTION 2.02. Demand Registration Rights.

(a) Apax and Accenture Right to Demand. In the case of an Apax Demand Holder and an Accenture Demand Holder, at any time and from time to time, the Apax Demand Holder or Accenture Demand Holder (as applicable, the “Demanding Holder”), as applicable, may make a written request, which request will specify the aggregate number of Registrable Shares to be registered and will also specify the intended methods of disposition thereof (a “Request Notice”) to the Company for registration with the Commission under and in accordance with the provisions of the 1933 Act of the offer and sale of all or part of the Registrable Shares then owned by such Demand Holder (a “Demand Registration”). A registration pursuant to this Section 2.02 will be on such appropriate form of the Commission as then available and reasonably acceptable to the Company and as shall permit, in accordance with Section 2.03, either (A) the intended method or methods of distribution specified by the Demanding Holder, including a distribution to, and resale by, the partners or Affiliates of the Demanding Holder or (B) the offer and sale of Common Shares to be sold by the Company pursuant to a Synthetic Secondary Transaction with respect to such Registrable Shares which the Company has been so requested to register by the Demanding Holder. Upon receipt by the Company of a Request Notice to effect a Demand Registration the Company shall within ten (10) Business Days after the receipt of the Request Notice, notify each other Demand Holder and each Contributing Investor of such request and such other Demand Holder and Contributing Investors shall have the option to include its Registrable Shares in such Demand Registration pursuant to this Section 2.02. Subject to Section 2.04, the Company will use reasonable best efforts to register (including in all related registrations or qualifications under blue sky laws or in compliance with other registration requirements and in any underwritings) all other Registrable Shares which the Company has been requested to register by such other Demand Holder and Contributing Investors (each, an “Incidental Demand Holder”) pursuant to Section 2.01 and this Section 2.02 by written request given to the Company by such Incidental Demand Holders within ten (10) Business Days after the giving of such written notice by the Company to such other Incidental Demand Holders (or to register such number of Common Shares to be sold by the Company pursuant to a Synthetic Secondary Transaction with respect to such Registrable Shares which the Company has been so requested to register by the Incidental Demand Holders). The Company shall not be obligated to maintain a registration statement

 

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pursuant to a Demand Registration (other than an Apax Shelf Registration or an Accenture Shelf Registration) effective for more than (x) one hundred eighty (180) days or (y) such shorter period when all of the Registrable Shares covered by such registration statement have been sold pursuant thereto (the “Effectiveness Period”). Notwithstanding the foregoing, the Company shall not be obligated to (i) register any Registrable Shares (including Common Shares in connection with a Synthetic Secondary Transaction) or file any registration statement related thereto pursuant to a Demand Registration prior to the IPO Lock-up End Date or (ii) effect more than one Demand Registration in any 90-day period following an Effectiveness Period or such longer period not to exceed one hundred eighty (180) days as requested by an underwriter pursuant to Section 2.09. Upon receipt of any such Request Notice, the Company will deliver any notices required by Section 2.01 and Section 2.02 and thereupon the Company will, subject to Sections 2.02(d) and 2.04, use reasonable best efforts to effect the prompt registration under the 1933 Act of (A)(i) the Registrable Shares which the Company has been so requested to register by Demand Holders as contained in the Request Notice and (ii) all other Registrable Shares which the Company has been requested to register by the Piggyback Holders and Incidental Demand Holders and Common Shares held by others, all to the extent required to permit the disposition of the Registrable Shares so to be registered in accordance with the intended method or methods of disposition of each seller of such Registrable Shares or, (B) in the cases of the foregoing clauses (A)(i) and (A)(ii), such number of Common Shares to be sold by the Company pursuant to a Synthetic Secondary Transaction with respect to such Registrable Shares).

(b) Unlimited Apax and Accenture Demands in Certain Circumstances.

(i) Until such time as the Apax Group (A) beneficially owns less than 40% of the outstanding Common Shares and (B) beneficially owns fewer Common Shares than the Accenture Group (the “Apax Fall Away Date”), the Apax Demand Holder shall have unlimited rights to effect a Demand Registration and Piggyback Underwritten Offerings, at any time and from time to time as set forth in Section 2.02(a); provided that, at any time in which the Company is eligible to register Common Shares on Form S-3 (or any successor form), the Apax Demand Holder shall have the right to require the Company to file a Shelf Registration Statement (a “Apax Shelf Registration”) or a prospectus/supplement to a previously filed shelf registration statement.

(ii) From such time, if any, as the Accenture Group (A) beneficially owns more than 40% of the outstanding Common Shares and (B) beneficially owns more Common Shares than the Apax Group (the “Accenture Springing Date”) until such time as the Accenture Group (x) beneficially owns less than 40% of the outstanding Common Shares or (y) beneficially owns fewer Common Shares than the Apax Group (the “Accenture Fall Away Date”), the Accenture Demand Holder shall have unlimited rights to effect a Demand Registration and Piggyback Underwritten Offerings, at any time and from time to time; provided that, at any time in which the Company is eligible to register Common Shares on Form S-3 (or any successor form), the Accenture Demand Holder shall have the right to require the Company to file a Shelf Registration Statement (an “Accenture Shelf Registration”) or a prospectus/supplement to a previously filed shelf registration statement.

 

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(c) Limitations on Number of Demand Registrations.

(i) Until an Accenture Springing Date and after an Accenture Fall Away Date, the Accenture Demand Holder shall be entitled to request an aggregate of two Demand Registrations pursuant to Section 2.02(a), provided that, at any time in which the Company is eligible to register Common Shares on Form S-3 (or any successor form), an Accenture Demand Holder shall have the right to require the Company to file a Shelf Registration Statement (a “Accenture Shelf Registration”) or a prospectus/supplement to a previously filed shelf registration statement.

(ii) After an Apax Fall Away Date, the Apax Demand Holder shall be entitled to request an aggregate of two Demand Registrations pursuant to Section 2.02(a); provided that, at any time in which the Company is eligible to register Common Shares on Form S-3 (or any successor form), the Apax Demand Holder shall have the right to require the Company to file an Apax Shelf Registration or a prospectus/supplement to a previously filed shelf registration statement.

(iii) For the avoidance of doubt, no Accenture Shelf Registration or Apax Shelf Registration shall count toward the aggregate limit of two Demand Registrations that may be made by, before an Accenture Springing Date and after and Accenture Fall Away Date, an Accenture Demand Holder or, after an Apax Fall Away Date, an Apax Demand Holder, as applicable, pursuant to Section 2.02(a).

(d) DH Representative. In connection with a Demand Registration by more than one Demand Holder or by a Demand Holder and Incidental Demand Holders (other than the Class E Investors) in which the Apax Investor, the Accenture Investors, or any of their Permitted Transferees is participating in such Demand Registration, the Apax Investor and the Accenture Investors shall jointly act as their representative (the “DH Representative”) in connection with such Demand Registration and the Company shall only be obligated to communicate with such DH Representative and any participating Class E Investors in connection with such Demand Registration. Such Holders (other than the Class E Investors) shall give the DH Representative any and all necessary powers of attorneys needed for the DH Representative to act on their behalf.

(e) Revocation. An Apax Demand Holder (in the case of a Demand Registration requested by an Apax Demand Holder) or a Accenture Demand Holder (in the case of a Demand Registration requested by an Accenture Demand Holder) may, upon two (2) Business Days’ notice to the Company prior to the effective date of the registration statement relating to such Demand Registration (or such period of time required by applicable law), revoke such request by providing a written notice thereof to the Company (the “Revoking Holders”) and the aborted registration shall not be deemed to be a Demand Registration for purposes of Section 2.02(b) or Section 2.02(c), as applicable, so long as the withdrawing Demand Holder shall have paid or reimbursed the Company for its pro rata share of all reasonable and documented out-of-pocket fees and expenses incurred by the Company in connection with the registration of such Demand Holder’s withdrawn Registrable Shares (based on the number of securities the Demand Holder sought to register, as compared to the total number of securities included on such registration statement). Neither the Company nor the Demand Holders shall have any obligation to keep any Holder informed as to the status or expected timing of the launch of any offering.

 

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(f) Effective Registration. A registration will not count as a Demand Registration if (i) such Registration is interfered with by any stop order, injunction or other order or requirement of the Commission or other governmental agency or court for any reason and the Company fails to promptly have such stop order, injunction or other order or requirement removed, withdrawn or resolved to the Demand Holder’s satisfaction; (ii) the conditions to closing specified in the underwriting agreement or purchase agreement entered into in connection with the registration relating to any such demand are not satisfied; or (iii) such Demand Registration is fully withdrawn pursuant to the first proviso to Section 2.10.

(g) Assignability of Demand Registration Rights. The rights offered a Demand Holder pursuant to this Section 2.02 are only assignable to a Permitted Transferee of such Demand Holder. Any such assignment permitted hereunder shall be effected hereunder only by giving written notice thereof from both the transferor and the transferee to the Company.

(h) Selection of Underwriters. An Apax Demand Holder (in the case of a Demand Registration requested by an Apax Demand Holder) or an Accenture Demand Holder (in the case of a Demand Registration requested by an Accenture Demand Holder), shall, subject to the consent of the Company’s Board of Directors (such consent not to be unreasonably withheld, conditioned or delayed), select any managing underwriter(s), which shall be nationally recognized, in connection with such Demand Registration; provided that in the case of a Demand Registration requested by the Accenture Demand Holder in which the Apax Investor or any of its Affiliates participates as an Incidental Demand Holder, such managing underwriter shall be reasonably acceptable to the Apax Investor and in the case of a Demand Registration requested by the Apax Demand Holder in which the Accenture Investor or any of its Affiliates participates as an Incidental Demand Holder, such managing underwriter shall be reasonably acceptable to the Accenture Investor.

SECTION 2.03. Synthetic Secondary Transactions. The Company shall fulfill its obligations to register any Registrable Shares hereunder (including pursuant to Sections 2.01 and 2.02), if so requested by the applicable Holder in writing, by selling Common Shares, the proceeds of which will be used to purchase a number of such Holder’s Registrable Shares at the closing of the offering at a price per share equal to the price per share of Common Shares received by the Company (net of all underwriting discounts and commissions) in such offering and to pay related offering expenses, other than any underwriting discounts and commissions with respect to such Common Shares (such sale, a “Synthetic Secondary Transaction”). If a Holder elects to conduct a Synthetic Secondary Transaction with respect to a Holder’s Registrable Shares, such Holder shall execute and deliver a purchase agreement in such form as is reasonably requested by the Company (a “Share Purchase Agreement”). Notwithstanding anything herein to the contrary, a Synthetic Secondary Transaction may be conducted in combination with sales directly by the Holder pursuant to its rights hereunder.

 

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SECTION 2.04. Priority on Registrations. If the managing underwriter or underwriters of a Registration advise the Company in writing that in its or their opinion the number of Registrable Shares proposed to be sold in such Registration (including Common Shares in connection with a Synthetic Secondary Transaction) exceeds the number which can be sold, or adversely affects the price at which the Registrable Shares or Common Shares, as the case may be, are to be sold, in such offering, the Company will include in such Registration only the number of Registrable Shares (or related Common Shares to be sold in a Synthetic Secondary Transaction) which, in the opinion of such underwriter or underwriters, can be sold in such offering without such adverse effect. To the extent such Registration includes Registrable Shares (or related Common Shares to be sold in a Synthetic Secondary Transaction) of more than one Holder, the Registrable Shares (or related Common Shares to be sold in a Synthetic Secondary Transaction) so included in such Registration shall be apportioned as follows:

(a) In the case of a Company Initiated Registration, allocations shall be made: first, to the Company; second, to the Piggyback Holders exercising their right to participate in a Piggyback Underwritten Offering with any cutbacks applied on a pro rata basis among the Holders based on the total number of Registrable Shares requested to be included by such Holders (including Common Shares in connection with a Synthetic Secondary Transaction) as compared to the total number of shares requested to be included by all such Holders in such Registration; and third, to all other holders exercising piggyback registration rights that have been granted by the Company, with any cutbacks applied on a pro rata basis among each other or as they may otherwise agree in writing.

(b) In the case of a Demand Registration, allocations shall be made: first, to the Holders (including the Piggyback Holders), with any cutbacks applied pro rata among the Holders based on the total number of Registrable Shares requested to be included by such Holders as compared to the total number of shares requested to be included by all such Holders in such Registration; second, to all other holders exercising piggyback registration rights granted by the Company, with any cutbacks applied on a pro rata basis among such other holders or as they may otherwise agree in writing; and third, to the Company; provided, however, that if the Demanding Holder is an Accenture Demand Holder or an Apax Demand Holder, and such cutbacks cause the number of shares held by the Demanding Holder included in such Registration (including Common Shares in connection with a Synthetic Secondary Transaction) to be less than 50% of the total number of Registrable Shares requested to be included therein by such Demanding Holder, such request shall not count toward the aggregate limit of two Demand Registrations pursuant to Section 2.02(c), if applicable, that may be made by the Accenture Demand Holder or Apax Demand Holder, as applicable, pursuant to Section 2.02(a).

(c) In the case of a registration initiated by any Person (other than the Company or a Demand Holder) exercising demand registration rights granted hereafter by the Company (if any), allocations shall be made: first, to the Holders, with any cutbacks applied pro rata among the Holders based on the total number of Registrable Shares requested to be included by such Holders as compared to the total number of shares requested to be included by all such Holders in such Registration; second, to such initiating Person and to any other holders exercising pari passu registration rights that have been granted by the Company allocated as such Persons have agreed among themselves; third, to the Company, with any cutbacks applied on a basis based on the total number of shares proposed to be included in such Registration by the Company; and fourth, to all other holders exercising piggyback registration rights granted by the Company, with any cutbacks applied on a pro rata basis among such other holders or as they may otherwise agree in writing.

 

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SECTION 2.05. Registration Procedures. It shall be a condition precedent to the obligations of the Company and any underwriter or underwriters to take any action pursuant to this Article II that each Holder requesting inclusion in any Piggyback Underwritten Offering or Demand Registration (a “Registration”) shall furnish to the Company such information regarding such Holder, the Registrable Shares held by it, the intended method of disposition of such Registrable Shares, and such agreements regarding indemnification, disposition of such securities and other matters referred to in this Article II as the Company shall reasonably request and as shall be reasonably required in connection with the action to be taken by the Company; provided that (x) no Holder shall be required to make any representations or warranties to, or agreements with, the Company other than representations and warranties regarding such Holder and such Holder’s ownership of and title to the Registrable Shares to be sold in such offering and its intended method of distribution and (y) any liability of any such Holder under any underwriting agreement relating to such Registration shall be limited to liability arising from breach of its representations and warranties therein and shall be limited to an amount equal to the net amount received by such Holder from the sale of Registrable Shares pursuant to such Registration. With respect to any Registration which includes Registrable Shares held by a Holder, the Company shall, subject to Sections 2.01 through 2.04:

(a) in accordance with the 1933 Act, as soon as reasonably practicable, prepare and file with the Commission within (x) thirty (30) days, in the case of a Form S-1, or (y) within fifteen (15) days, in the case of a Form S-3, of such request for registration by a Holder of Registrable Shares, a registration statement on the appropriate form prescribed by the Commission and use its reasonable best efforts to cause such registration statement to become effective as soon as practicable thereafter; provided that the Company shall not be obligated to maintain such Registration effective for a period longer than the Effectiveness Period; provided, further, that before filing a registration statement or prospectus or any amendments or supplements thereto, the Company will furnish to the Holders covered by such registration statement and the underwriter or underwriters, if any, copies of or drafts of all such documents proposed to be filed, which documents will be subject to the reasonable review of such Holders and any underwriters named therein. Each Holder will have the opportunity to object to any information pertaining to such Holder that is contained therein and the Company will make the corrections reasonably requested by such Holder with respect to such information prior to filing any registration statement or amendment thereto or any prospectus or any supplement thereto; provided, however, that the Company will not include any information pertaining to the Holders in any registration statement or amendment thereto or any prospectus or any supplement thereto to which Holders of a majority of the Registrable Shares covered by such registration statement shall reasonably object;

(b) in accordance with the 1933 Act, prepare and file with the Commission such amendments and post-effective amendments to such registration statement and any documents required to be incorporated by reference therein as may be necessary to keep the registration statement effective for a period of not less than the Effectiveness Period (but not prior to the expiration of the time period referred to in Section 4(3) of the 1933 Act and Rule 174 thereunder, if applicable); cause the prospectus to be supplemented by any required prospectus

 

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supplement, and as so supplemented to be filed pursuant to Rule 424 under the 1933 Act; and comply with the provisions of the 1933 Act applicable to it with respect to the disposition of all Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by such registration statement during the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such registration statement or supplement to the prospectus;

(c) furnish to such Holder, without charge, such number of conformed copies of the registration statement and any post-effective amendment thereto, as such Holder may reasonably request, and such number of copies of the prospectus (including each preliminary prospectus) and any amendments or supplements thereto, and any documents incorporated by reference therein as the Holder or underwriter or underwriters, if any, may request in order to facilitate the disposition of the securities being sold by such Holder (it being understood that the Company consents in writing to the use of the prospectus and any amendment or supplement thereto by the Holder covered by the registration statement and the underwriter or underwriters, if any, in connection with the offering and sale of the securities covered by the prospectus or any amendments or supplements thereto);

(d) promptly notify such Holder, at any time when a prospectus relating thereto is required to be delivered under the 1933 Act, when the Company becomes aware of the happening of any event as a result of which the prospectus included in such registration statement (as then in effect) contains any untrue statement of material fact or omits to state a material fact necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading and, as promptly as practicable thereafter, prepare and file with the Commission and furnish a supplement or amendment to such prospectus so that, as thereafter delivered to the investors of such securities, such prospectus will not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading (and the Effectiveness Period of the registration statement may be extended by the number of days from and including the date such notice is given to the date such supplement or amendment to such prospectus has been delivered under this Section 2.05(d));

(e) in the case of an underwritten offering, enter into and perform such customary agreements (including underwriting agreements in customary form) and make members of senior management of the Company available on a basis reasonably requested by the underwriters to participate in “road show”, analyst and investor presentations and other customary marketing activities (including one-on-one meetings with prospective purchasers of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares)) and cause to be delivered to the underwriters opinions of counsel to the Company (and, if such registration statement includes an underwritten public offering, dated the date of the closing under the underwritten agreement), with respect to the registration statement, each supplement and amendment thereto, the prospectus included therein (including the preliminary prospectus) and such other documents related thereto in customary form, covering such matters as are customarily covered by opinions for an underwritten public offering as the underwriters may reasonably request and addressed to the underwriters;

 

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(f) in the case of an underwritten offering, make available, for inspection by any seller of Registrable Shares, any underwriter participating in any disposition pursuant to a registration statement, and any attorney, accountant or other agent retained by any such seller or underwriter, all financial and other records, pertinent corporate documents of the Company, and cause the Company’s officers, directors, managers, employees and independent accountants to supply all information reasonably requested by any such seller, underwriter, attorney, accountant or agent that are necessary to be reviewed by such person in connection with the preparation of such registration statement;

(g) in the case of an underwritten offering, if requested, cause to be delivered, at the time of the pricing of an underwritten offering and at the time of delivery of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) sold pursuant thereto, “comfort” letters from the Company’s independent certified public accountants addressed to each underwriter, if any, in customary form and covering such financial and accounting matters as are customarily covered by letters of the independent certified public accountants delivered in connection with primary or secondary underwritten public offerings, as the case may be;

(h) provide a transfer agent and registrar for all such Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) and provide a CUSIP number for all such Registrable Shares or Common Shares, in each case, not later than the effective date of the registration statement;

(i) use reasonable best efforts to cause all securities included in such registration statement to be listed, by the date of the first sale of securities pursuant to such registration statement, on any national securities exchange, quotation system or other market on which the Common Shares are then listed or proposed to be listed by the Company;

(j) make generally available to its security holders an earnings statement, which need not be audited, satisfying the provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder as soon as reasonably practicable after the end of the twelve (12) month period beginning with the first month of the Company’s first fiscal quarter commencing after the effective date of the registration statement, which statement shall cover said twelve (12) month period;

(k) after the filing of a registration statement, (i) promptly notify each Holder covered by such registration statement of any stop order issued or, to the Company’s knowledge, threatened by the Commission and of the receipt by the Company of any notification with respect to the suspension of the qualification of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) for sale under the applicable securities or blue sky laws of any jurisdiction and (ii) take all reasonable actions to obtain the withdrawal of any order suspending the effectiveness of the registration statement or the qualification of any Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) at the earliest possible moment;

 

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(l) subject to the time limitations specified in paragraph (b) above, if requested by the managing underwriter or underwriters or such Holder, promptly incorporate in a prospectus supplement or post-effective amendment such information as the managing underwriter or underwriters or the Holder reasonably requests to be included therein, including, without limitation, with respect to the number of shares being sold by the Holder to such underwriter or underwriters, the purchase price being paid therefor by such underwriter or underwriters and with respect to any term of the underwritten offering of the securities to be sold in such offering; and make all required filings of such prospectus supplement or post-effective amendment as soon as practicable after being notified of the matters to be incorporated in such prospectus supplement or post-effective amendment;

(m) as promptly as practicable after filing with the Commission of any document which is incorporated by reference into a registration statement covering such Holder, deliver a copy of such document to such Holder unless such document is available on the Commission’s EDGAR system (or any successor electronic filing system);

(n) on or prior to the date on which the registration statement is declared effective, use reasonable best efforts to register or qualify, and cooperate with such Holder, the underwriter or underwriters, if any, and their counsel in connection with the registration or qualification of, the securities covered by the registration statement for offer and sale under the securities or blue sky laws of each state and other jurisdiction of the United States as the Holder or managing underwriter or underwriters, if any, requests in writing, to use reasonable best efforts to keep each such Registration or qualification effective, including through new filings, or amendments or renewals, during the Effectiveness Period do any and all other acts or things necessary or advisable to enable the disposition in all such jurisdictions of the Registrable Shares (or Common Shares in connection with a Synthetic Secondary Transaction with respect to such Registrable Shares) covered by the applicable registration statement; provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified, subject itself to taxation in any such jurisdiction or to take any action which would subject it to general service of process in any such jurisdiction where it is not then so subject;

(o) cooperate with such Holder and the managing underwriter or underwriters, if any, to facilitate the timely preparation and delivery of certificates (not bearing any restrictive legends) representing securities to be sold under the registration statement, and enable such securities to be in such denominations and registered in such names as the managing underwriter or underwriters, if any, may request;

(p) use reasonable best efforts to cooperate and assist in any filings required to be made with FINRA;

(q) use reasonable best efforts to cause the securities covered by the registration statement to be registered with or approved by such other governmental agencies, authorities or self-regulatory bodies within the United States as may be necessary to enable the seller or sellers thereof or the underwriter or underwriters, if any, to consummate the disposition of such Registrable Shares;

 

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(r) to the extent the Company is a well-known seasoned issuer (within the meaning of Rule 405 under the 1933 Act) (“WKSI”) at the time any Request Notice is submitted to the Company pursuant to Section 2.02 which requests that the Company file an automatic shelf registration statement (as defined in Rule 405 under the 1933 Act) (an “automatic shelf registration statement”) on a Shelf Registration Statement, the Company shall file an automatic shelf registration statement that covers those Registrable Shares which are requested to be registered. If the Company does not pay the filing fee covering Registrable Shares at the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Shares are to be sold. If the Company files an automatic shelf registration statement covering any Registrable Shares, it shall use its reasonable best efforts to remain a WKSI (and not become an ineligible issuer (as defined in Rule 405 under the 1933 Act)) during the period during which such automatic shelf registration statement is required to remain effective. If an automatic shelf registration statement has been outstanding for at least three (3) years, at the end of the third year, refile a new automatic shelf registration statement covering the Registrable Shares, and, if at any time when the Company is required to re-evaluate its WKSI status the Company determines that it is not a WKSI, use its reasonable best efforts to refile on Form S-3 (or any successor form) and, if such form is not available, Form S-1 and keep such registration statement effective during the period during which such registration statement is required to be kept effective; and

(s) take such other actions and deliver such other documents and instruments as may be reasonably necessary to facilitate the registration and disposition of Registrable Shares (including Common Shares in connection with a Synthetic Secondary Transaction) as contemplated hereby.

The Holders, upon receipt of any notice from the Company of the happening of any event of the kind described in subsection (d) of this Section 2.05, will forthwith discontinue disposition of the securities until the Holders’ receipt of the copies of the supplemented or amended prospectus contemplated by subsection (d) of this Section 2.05 or until it is advised in writing (the “Advice”) by the Company that the use of the prospectus may be resumed, and has received copies of any additional or supplemental filings which are incorporated by reference in the prospectus, and, if so directed by the Company, each Holder will, or will request the managing underwriter or underwriters, if any, to, deliver, to the Company (at the Company’s sole expense) all copies, other than permanent file copies then in such Holder’s possession, of the prospectus covering such securities current at the time of receipt of such notice. In the event the Company shall give any such notice, the time periods mentioned in subsections (a), (b) and (n) of this Section 2.05 shall be extended by the number of days during the period from and including any date of the giving of such notice to and including the date when each seller of securities covered by such registration statement shall have received the copies of the supplemented or amended prospectus contemplated by subsection (d) of this Section 2.05 hereof or the Advice.

SECTION 2.06. Registration Expenses.

(a) In the case of any Registration, the Company shall bear all expenses incident to the Company’s performance of or compliance with this Agreement, including, without limitation, all Commission and stock exchange or Financial Industry Regulatory Authority, Inc. (“FINRA”) registration and filing fees and expenses, fees and expenses of compliance with securities or blue sky laws (including, without limitation, reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Shares), rating agency fees, printing expenses, messenger, telephone and delivery expenses, fees and disbursements of counsel

 

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for the Company and all independent certified public accountants and any fees and disbursements of underwriters customarily paid by issuers or sellers of securities (but not including any underwriting discounts or commissions, or transfer taxes, if any, attributable to the sale of Registrable Shares by a Holder (including Common Shares to be sold by the Company in connection with a related Synthetic Secondary Transaction with respect to such Holder) or reasonable fees and expenses of more than two counsel representing all Holders selling Registrable Shares under such Registration as set forth in Section 2.06(b) below).

(b) In connection with each Registration initiated hereunder (whether a Demand Registration, a Piggyback Underwritten Offering or a Shelf Registration), the Company shall reimburse the Holders covered by such Registration or sale for the reasonable, documented and out of pocket fees and disbursements of not more than two law firms (which shall represent all Holders in connection with such Registration or sale) chosen by (x) an Apax Demand Holder (in the case of a Demand Registration requested by an Apax Demand Holder; provided, that such law firm shall be reasonably acceptable to the Accenture Investor if the Accenture Investor or any of its Affiliates participates as an Incidental Demand Holder in such Registration) or an Accenture Demand Holder (in the case of a Demand Registration requested by an Accenture Demand Holder; provided, that such law firm shall be reasonably acceptable to the Apax Investor if the Apax Investor or any of its Affiliates participates as an Incidental Demand Holder in such Registration) or (y) in the case of a Piggyback Underwritten Offering (i) if none of the Apax Investor, the Accenture Investors or any of their respective Permitted Transferees are participating in such Registration, the holders of a majority of the number of Registrable Shares included in such Registration or (ii) otherwise, the Apax Investor and the Accenture Investors.

(c) The obligation of the Company to bear the expenses described in Section 2.06(b) and to reimburse the Holders for the expenses described in Section 2.06(b) shall apply irrespective of whether a registration, once properly demanded, if applicable, becomes effective, is withdrawn or suspended or revoked or is converted to another form of registration and irrespective of when any of the foregoing shall occur.

SECTION 2.07. Indemnification.

(a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder, its officers, directors, Affiliates and agents and each Person who controls (within the meaning of the 1933 Act or the 1934 Act) the Holder, including, without limitation any general partner or manager of any thereof, against all losses, claims, damages, liabilities and expenses (including reasonable counsel fees and disbursements) arising out of or based upon (i) any untrue or alleged untrue statement of a material fact contained in any registration statement, prospectus or preliminary prospectus, or any amendment thereof or supplement thereto, in which either (A) such Holder participates in an offering of Registrable Shares or (B) the Company sells Common Shares in connection with a related Synthetic Secondary Transaction with respect to such Holder’s Registrable Shares or, in each case, in any document incorporated by reference therein or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the prospectus or any preliminary prospectus, in light of the circumstances under which they were made) not misleading, (ii) any untrue statement or alleged untrue statement of a material fact in the information conveyed to any purchaser at the time of the sale to such purchaser, or the omission

 

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or alleged omission to state therein a material fact required to be stated therein, or (iii) any violation by the Company of any federal, state, common or other law, rule or regulation applicable to the Company in connection with such registration, including the 1933 Act, any state securities or blue sky laws or any rule or regulation thereunder in connection with such registration, except insofar as the same are made in reliance on and in conformity with any information with respect to such Holder furnished in writing to the Company by such Holder expressly for use therein.

(b) Indemnification by the Holders. In connection with any registration statement in which either (A) a Holder is participating or (B) the Company sells Common Shares in connection with a related Synthetic Secondary Transaction with respect to such Holder’s Registrable Shares, each such Holder will furnish to the Company in writing such information with respect to such Holder as the Company reasonably requests for use in connection with any registration statement or prospectus covering the Registrable Shares of such Holder (or Common Shares in the related Synthetic Secondary Transaction) and to the extent permitted by law agrees to indemnify and hold harmless the Company, its directors, officers and agents and each Person who controls (within the meaning of the 1933 Act or the 1934 Act) the Company and any other Holder, against any losses, claims, damages, liabilities and expenses arising out of or based upon any untrue statement of a material fact or any omission to state a material fact required to be stated therein or necessary to make the statements in the registration statement or prospectus or preliminary prospectus (in the case of the prospectus or preliminary prospectus, in light of the circumstances under which they were made) not misleading, to the extent, but only to the extent, that such untrue statement or omission is made in reliance on and in conformity with the written information or signed affidavit with respect to such Holder so furnished in writing by such Holder expressly for use in the registration statement or prospectus; provided, however, that the obligation to indemnify shall be several, not joint and several, among such Holders and the liability of each such Holder shall be in proportion to and limited to the net amount received by such Holder from the sale of Registrable Shares pursuant to such registration statement or Synthetic Secondary Transaction, as the case may be, in accordance with the terms of this Agreement. The Company and the Holders hereby acknowledge and agree that, unless otherwise expressly agreed to in writing by such holders, the only information furnished or to be furnished to the Company for use in any registration statement or prospectus relating to the Registrable Shares (or Common Shares in the related Synthetic Secondary Transaction) or in any amendment, supplement or preliminary materials associated therewith are statements specifically relating to (a) transactions or the relationship between such Holder and its Affiliates, on the one hand, and the Company, on the other hand, (b) the beneficial ownership of Registrable Shares by such Holder and its Affiliates, (c) the name and address of such Holder (d) any additional information about such Holder or the plan of distribution (other than for an underwritten offering) required by law or regulation to be disclosed in any such document and (e) with respect to any Synthetic Secondary Transaction, the material terms of such transaction and related Share Purchase Agreement.

(c) Conduct of Indemnification Proceedings. Any Person entitled to indemnification hereunder will (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest may exist between such indemnified and indemnifying parties with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. The failure to so notify the indemnifying party shall not relieve the indemnifying party from any liability hereunder with

 

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respect to the action, except to the extent that such indemnifying party is materially prejudiced by the failure to give such notice; provided, however, that any such failure shall not relieve the indemnifying party from any other liability which it may have to any other party. No indemnifying party in the defense of any such claim or litigation, shall, except with the written consent of such indemnified party, which consent shall not be unreasonably withheld, conditioned or delayed, consent to entry of any judgment or enter into any settlement unless such judgment or settlement (i) includes as an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect of such claim or litigation and (ii) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of such indemnified party. An indemnifying party shall not be liable under this Section 2.07 to any indemnified party regarding any settlement or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent is consented to by such indemnifying party. An indemnifying party who is not entitled to, or elects not to, assume the defense of a claim will not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified party there may be one or more legal or equitable defenses available to such indemnified party which are in addition to or may conflict with those available to any other of such indemnified parties with respect to such claim, in which event the indemnifying party shall be obligated to pay the reasonable fees and expenses of such additional counsel or counsels; provided, however, that such number of additional counsel must be reasonably acceptable to the indemnifying party.

(d) Contribution. If for any reason the indemnification provided for in the preceding paragraphs (a) and (b) of this Section 2.07 is unavailable to an indemnified party as contemplated by the preceding paragraphs (a) and (b) of this Section 2.07, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party as a result of such loss, claim, damage or liability in such proportion as is appropriate to reflect not only the relative benefits received by the indemnified party and the indemnifying party, but also the relative fault of the indemnified party and the indemnifying party, as well as any other relevant equitable considerations. In no event shall the liability of any selling Holder be greater in amount than the amount of net proceeds received by such Holder upon such sale (including pursuant to a related Synthetic Secondary Transaction) or the amount for which such indemnifying party would have been obligated to pay by way of indemnification if the indemnification provided in paragraph (b) of this Section 2.07 had been available.

SECTION 2.08. 1934 Act Reports. The Company agrees that at all times after it has filed a registration statement pursuant to the requirements of the 1933 Act relating to any class of equity securities of the Company, it will use reasonable best efforts to file in a timely manner all reports required to be filed by it pursuant to the 1934 Act to the extent the Company is required to file such reports. Notwithstanding the foregoing, the Company may deregister any class of its equity securities under Section 12 of the 1934 Act or suspend its duty to file reports with respect to any class of its securities pursuant to Section 15(d) of the 1934 Act if it is then permitted to do so pursuant to the 1934 Act and rules and regulations thereunder.

 

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SECTION 2.09. Holdback Agreements.

(a) Whenever the Company proposes to register any of its equity securities under the 1933 Act for its own account (other than on Form S-4 or S-8 or any similar successor form or another form used for a purpose similar to the intended use of such forms) in an underwritten offering or is required to use reasonable best efforts to effect the registration of any Registrable Shares (or Common Shares in connection with a related Synthetic Secondary Transaction with respect to such Registrable Shares) under the 1933 Act pursuant to a request by or on behalf of a Demand Holder pursuant to Section 2.02 in connection with an underwritten offering, each Holder of Registrable Shares has agreed by acquisition of its Registrable Shares not to effect any sale or distribution, including any sale pursuant to Rule 144 under the 1933 Act, or to request registration under Section 2.02 of any Registrable Shares during the Lock-Up Period, except as part of such Registration if permitted, or unless in the case of a private sale or distribution, the transferee agrees in writing to be subject to this Section 2.09; provided that exceptions shall exist for small non-employee Holders in accordance with customary underwriting practices. If requested by such managing underwriter, each holder of Registrable Shares agrees to execute a holdback agreement in customary form, consistent with the terms of this Section 2.09(a) and, in any case, on terms no less favorable to the Holders than the holdback agreements executed by the Company’s directors and executive officers. No Holder’s obligations pursuant to a holdback agreement or this Section 2.09 (other than small non-employee Holders in accordance with customary underwriting practices) shall be released or waived unless comparable waivers or releases are granted to the other Holders. Notwithstanding anything to the contrary, the foregoing provisions of this Section 2.09, with respect to the Dragoneer Demand Holder, the Neuberger Demand Holders, the Insight Demand Holders and any Major Investor and only for so long as the Dragoneer Demand Holder, Neuberger Demand Holder, Insight Demand Holders or any Major Investor, as applicable, own a number of Registrable Shares equal to less than 5.0% of the total number of outstanding Common Shares of the Company, shall apply only whenever the Company proposes to register any of its equity securities under the 1933 Act for its own account (other than on Form S-4, S-8 or any similar successor form or another form used for a purpose similar to the intended use of such forms) in an underwritten offering and not when a Demand Holder has requested a registration pursuant to Section 2.02.

(b) The Company agrees not to effect any sale or distribution of any of its equity securities or securities convertible into or exchangeable or exercisable for any of such securities within the Lock-up Period (except as part of such underwritten registration or pursuant to registrations on Form S-8 or S-4 or any successor forms thereto), except that such restriction shall not prohibit after the effective date of the registration statement: (i) grants of employee stock options or other issuances of capital stock pursuant to the terms of a Company employee benefit plan approved by its Board of Directors, issuances by the Company of capital stock pursuant to the exercise of such options or the exercise of any other employee stock options outstanding on the date hereof or subject to any stock option plan, (ii) the Company from issuing shares of capital stock in private placements pursuant to Section 4(a)(2) of the 1933 Act or in connection with a strategic alliance, or (iii) the Company from publicly announcing its intention to issue, or actually issuing, shares of capital stock to shareholders of another entity as consideration for the Company’s acquisition of, or merger with, such entity. In addition, upon the request of the managing underwriter, the Company shall use its reasonable best efforts to cause each holder of its equity securities or any securities convertible into or exchangeable or exercisable for any of such securities whether outstanding on the date of this Agreement or issued at any time after the date of this Agreement (other than any such securities acquired in a public offering), to agree not to effect any such public sale or distribution of such securities during such period, except as part of any such Registration if permitted, and to cause each such holder to enter into a similar agreement to such effect with the Company.

 

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SECTION 2.10. Blackout Periods. Any registration statement may be suspended or a filing delayed by the Company if the Company determines in good faith that the filing or maintenance of a registration statement would, if not so deferred, materially and adversely affect a then proposed or pending significant business transaction, financial project, acquisition, merger or corporate reorganization; provided that any Demand Holder may withdraw all or a portion of its Demand Registration without it counting as a Demand Registration; provided, further, that (i) the Company may not delay the filing or effectiveness of, or suspend, any registration statement in excess of 90 days in any calendar year (a “Blackout Period”), (ii) such registration statement shall remain effective subsequent to the cessation of such Blackout Period for a number of days equal to the Blackout Period and (iii) the Company may not file any registration statement during a Blackout Period.

SECTION 2.11. Participation in Registrations. No Holder may participate in any Registration hereunder which is underwritten unless such Holder (a) agrees to sell its securities on the basis provided in (i) any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements or (ii) a Share Purchase Agreement relating to the purchase of the Holder’s Registrable Securities by the Company in a Synthetic Secondary Transaction, and (b) completes and executes all questionnaires, powers of attorney, agreements and other documents customarily required under the terms of such underwriting arrangements or Synthetic Secondary Transaction, as the case may be, and provides such written information concerning itself as may be reasonably required for registration, including for inclusion in any registration statement.

SECTION 2.12. Other Registration Rights. The Company represents that, as of the date hereof, it has not granted to any Person the right to request or require the Company to register any equity securities issued by the Company, other than as set forth herein. The Company will not grant any Person any registration rights with respect to the capital stock of the Company that are prior in right or in conflict or inconsistent with the rights of the Holders as set forth in this Article II in any respect (it being understood that this shall not preclude the grant of additional demand and piggyback registration rights in and of themselves).

SECTION 2.13. Rule 144.

(a) The Company shall file any reports required to be filed by it under the 1933 Act and the 1934 Act and the rules and regulations adopted by the Commission thereunder, and it will take such further action as any Holder may reasonably request (including making available adequate current public information with respect to the Company meeting the current public information requirements of Rule 144(c) under the 1933 Act), to the extent required to enable such Holder to sell Registrable Shares without registration under the 1933 Act within the limitation of the exemptions provided by (i) Rule 144 under the 1933 Act, as such Rule may be amended from time to time, or (ii) any similar rule or regulation hereafter adopted by the Commission. Without limiting the foregoing, the Company shall furnish to any Holder forthwith upon request a written statement by the Company as to its compliance with such requirements. Notwithstanding the foregoing, nothing in this Section 2.13 shall be deemed to require the Company to register any of its securities pursuant to the 1934 Act.

 

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(b) The Company shall use reasonable best efforts to furnish forthwith, but in any event within three (3) Business Days following receipt of a supportable request, in the Company’s reasonable discretion after consultation with counsel, therefor from a Holder or prospective Holder (but only if such prospective Holder is a Permitted Transferee), to the Company’s transfer agent an opinion of counsel that unlegended stock certificates (or its equivalent) may be issued in respect of any Registrable Shares. Notwithstanding the foregoing, no opinion shall be required to be delivered before a sale unless such Registrable Shares are not subject to the volume, public information or holding period requirements of Rule 144.

SECTION 2.14. Cooperation. Each Holder hereby agrees to take any and all reasonable actions required to be taken hereunder to ensure the performance by it of its obligations pursuant to this Agreement.

ARTICLE III.

MISCELLANEOUS

SECTION 3.01. Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given or made when (a) delivered personally to the recipient, (b) sent by facsimile to the recipient (with hard copy sent to the recipient by reputable overnight courier service (charges prepaid) that same day) if sent by facsimile before 5:00 p.m. New York time on a Business Day, and otherwise on the next Business Day, (c) one (1) Business Day after being sent to the recipient by reputable overnight courier service (charges prepaid) or (d) transmitted, if sent by email transmission before 5:00 p.m. New York time on a Business Day (so long as the party to whom the notice was intended to be sent affirmatively confirms receipt (other than an automatically generated reply with respect to email delivery), and otherwise on the next Business Day. Such notices, demands and other communications shall be given to such party at its address, email or facsimile number set forth on the signature pages hereof or in the relevant Joinder Agreement or such other address or facsimile number as such party may hereafter specify in writing to the Secretary of the Company for the purpose by notice to the party sending such communication.

SECTION 3.02. Binding Effect; Benefits; Entire Agreement. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any Person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein. This Agreement, and the other agreements specifically referenced herein, constitute the entire agreement and understanding, and supersede all prior agreements and understandings, both oral and written, between the parties hereto relating to the subject matter hereof and thereof.

 

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SECTION 3.03. Waiver. Any party hereto may by written notice to the other parties (a) extend the time for the performance of any of the obligations or other actions of any other party under this Agreement; (b) waive compliance with any of the conditions or covenants of any other party contained in this Agreement; and (c) waive or modify performance of any of the obligations of any other party under this Agreement; provided, however, that, notwithstanding anything herein to the contrary, any such waiver shall be effective against all Permitted Transferees of a Contributing Investor if signed by such Contributing Investor, as applicable, on behalf of itself and such Permitted Transferees. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by any party to exercise any right or privilege hereunder shall be deemed a waiver of such party’s rights or privileges hereunder or shall be deemed a waiver of such party’s rights to exercise the same at any subsequent time or times hereunder. Any waiver by any party hereto of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon a breach thereof shall only be effective in writing by the party making such waiver.

SECTION 3.04. Amendment. This Agreement may not be amended, restated or modified in any respect except by a written instrument executed by the Apax Investor, the Accenture Investors and the Company; provided that (1) this Agreement may be amended and restated or amended without consent of the Holders solely to allow for the addition of new Holders and the granting to such new Holders rights hereunder and any additional rights after the date hereof that does not adversely affect or is not inconsistent with the existing rights and priorities of the Holders (other than by virtue of adding a Person with additional similar rights and Common Shares); (2) no amendment, restatement or modification that adversely affects any Management Holder or group of Management Holders disproportionately to either the Accenture Investors or the Apax Investor shall be effective with respect to such Management Holder or group of Management Holders without the written consent of either (x) such Management Holder or (y) the Management Holders holding a majority of the Registrable Shares held by such group of Management Holders, it being understood and agreed that no consent to an amendment, restatement or modification need be obtained from any non-affected Management Holder; (3) no amendment, restatement or modification that adversely affects in any respect any rights specific to the Accenture Investors shall be effective without the written consent of the Accenture Investors; (4) no amendment, restatement or modification that adversely affects in any respect any rights specific to the Apax Investor shall be effective without the written consent of the Apax Investor; (5) no amendment, restatement or modification that adversely affects any Class E Investor or group of Class E Investors disproportionately to either the Accenture Investors or the Apax Investor shall be effective with respect to such Class E Investor or group of Class E Investors without the written consent of either (x) such Class E Investor, (y) the Class E Investors holding a majority of the Registrable Shares held by such group of Class E Investors, or (z)(i) Dragoneer, if Dragoneer is one of the Class E Investors affected, (ii) Neuberger if any Neuberger Investors are one of the Class E Investors affected, (iii) the Insight Investors, if any Insight Investors are one of the Class E Investors affected, (iv) the Temasek Investor, if the Temasek Investor is one of the Class E Investors affected, (v) the AIG Investor, if the AIG Investor is one of the Class E Investors affected, (vi) the Chubb Investor, if the Chubb Investor is one of the Class E Investors affected, (vii) the

 

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Liberty Mutual Investor, if the Liberty Mutual Investor is one of the Class E Investors affected, (viii) the KAR Investors, if any KAR Investors are one of the Class E Investors affected and (ix) the Whale Rock Investors, if any Whale Rock Investors are one of the Class E Investors affected, it being understood and agreed that no consent to an amendment, restatement or modification need be obtained from any non-affected Class E Investor (including Dragoneer, Neuberger, the Insight Investors, the Temasek Investor, the AIG Investor, the Chubb Investor, the Liberty Mutual Investor, the KAR Investors and the Whale Rock Investors); and (6) this Agreement, and except as otherwise provided herein, any amendment, restatement or modification hereof, may be executed by the Company without the consent of any Holder pursuant to this Agreement.

SECTION 3.05. Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by either the Company or any Holder except (i) by a Holder to a Permitted Transferee who executes a Joinder Agreement to the extent provided in the Joinder Agreement or (ii) with the prior written consent of each other party.

SECTION 3.06. Applicable Law. This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of Delaware, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of Delaware. Each of the parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by any other party or its successors or assigns may be brought and determined by the Court of Chancery of the State of Delaware, and each of the parties hereby irrevocably submits to the exclusive jurisdiction of the aforesaid court for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such courts). Each of the parties further agrees to accept service of process in any manner permitted by such court. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure lawfully to serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such court (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by law, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.

SECTION 3.07. Specific Performance. The parties hereto agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction or injunctions to prevent breaches of the provisions of this Agreement and to enforce specifically the terms and provisions hereof in any state or federal court (this being in addition to any other remedy to which they are entitled at law or in equity), and each party hereto agrees to waive in any action for such enforcement the defense that a remedy at law would be adequate. The Company shall reimburse such Holder for the reasonable costs of and expenses for counsel for such Holder incurred in connection with any such proceeding if such Holder is the prevailing party in any such proceeding.

 

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SECTION 3.08. Severability. If any provision of this Agreement is declared by any court of competent jurisdiction to be illegal, void or unenforceable, all other provisions of the Agreement will not be affected and will remain in full force and effect.

SECTION 3.09. Additional Securities Subject to Agreement. Each Holder agrees that any other Common Shares of the Company which it hereafter acquires by means of a stock split, stock dividend, distribution, exercise of options or warrants or otherwise (other than pursuant to a public offering) whether by merger, consolidation or otherwise (including shares of a surviving corporation into which the Common Shares of the Company are exchanged in such transaction or following any IPO Conversion) will be subject to the provisions of this Agreement to the same extent as if held on the date hereof, including for purposes of constituting Registrable Shares hereunder.

SECTION 3.10. Section and Other Headings. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.

SECTION 3.11. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. A facsimile, Portable Document Format (PDF) or other reproduction of this Agreement may be executed by one or more parties hereto, and an executed copy of this Agreement may be delivered by one or more parties hereto by facsimile, PDF or similar instantaneous electronic transmission device pursuant to which the signature of or on behalf of such party can be seen, and such execution and delivery shall be considered valid, binding and effective for all purposes. At the request of any party hereto, all parties hereto agree to execute an original of this Agreement as well as any facsimile, PDF or other reproduction hereof.

[Signature Pages Follow]

 

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IN WITNESS WHEREOF, the Company and each Holder have executed this Agreement as of the day and year first above written.

 

 

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Notices:
Dragoneer Investment Group, LLC 1 Letterman Drive, Bldg D, M500
San Francisco, CA 94129
USA   with a copy (which shall not constitute notice) to:
Gunderson Dettmer Stough Villeneuve Franklin & Hachigian, LLP 220 West 42nd Street, 17th Floor
New York, NY 100036
USA
Attention:		[            ]
Email:		[            ]

 

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SCHEDULE A

Class E Investors

 

Dragoneer Investor

Neuberger Investors

Insight Investors

Temasek Investor

AIG Investor

Chubb Investor

Liberty Mutual Investor

KAR Investors

Whale Rock Investors

Management Holders

 

Michael Jackowski

SCHEDULE B

Neuberger Investors

1. Neuberger Berman Alternative Funds, Neuberger Berman Long Short Fund

2. Neuberger Berman Equity Funds, Neuberger Berman Focus Fund

3. Neuberger Berman Equity Funds, Neuberger Berman Guardian Fund

4. NB All Cap Alpha Master Fund Ltd.

5. Sachem Investment LLC

6. Jared Stadlin & Robyn Stadlin

7. Heather & Andrew Zuckerman

8. Andrew Komaroff

9. Robert Arancio & Gina Arancio

10. Jeffrey Hollender Rev Trust

11. Kessler Living Trust

12. Peter Braverman & Susan Rosenberg

13. Atish Patankar & Deepti Bhadkamkar

14. Neil Shah

15. Keith Wagner & Tana Wagner

16. Steve Collins

17. Clarion Direct Investment LLC SeriesB

18. James Harrison

19. Andrew Heyer

20. Heyer Investment Management

21. Thomas Perakos Living Trust

22. Lake Bend Holdings LLC

23. Miraj Patel Revocable Living Trust

24. Neu Brother Holdings LLC

25. Joel Alsfine & Stacey Alsfine

KAR Investors

1. Virtus KAR Capital Growth Series, a series of Virtus Variable Insurance Trust

2. Virtus KAR Capital Growth Fund, a series of Virtus Equity Trust

3. Virtus Tactical Allocation Fund, a series of Virtus Equity Trust

4. Virtus Strategic Allocation Series, a series of Virtus Variable Insurance Trust

5. Virtus KAR Small-Cap Growth Fund, a series of Virtus Equity Trust

6. Virtus KAR Small-Cap Growth Series, a series of Virtus Variable Insurance Trust

Whale Rock Investors

1. Whale Rock Flagship (AI) Fund LP

2. Whale Rock Flagship Master Fund, LP

3. Whale Rock Long Opportunities Master Fund, LP

EXHIBIT A

REGISTRATION RIGHTS

[FORM OF] JOINDER AGREEMENT

This JOINDER (“Joinder”) dated [________] is executed by [________] (the “Transferee”) and by [________] (the “Transferor”) pursuant to the terms of the Second Amended and Restated Registration Rights Agreement dated as of [•], 2020 (the “Registration Rights Agreement”), by and among, Duck Creek Technologies, Inc. (the “Company”), Disco (Guernsey) Holdings L.P. Inc. (the “Apax Investor”), Accenture LLP and Accenture Holdings B.V. (collectively, the “Accenture Investors”), the Class E Investors party thereto and the Management Holders party thereto. Capitalized terms used but not otherwise defined herein have the meanings set forth in the Registration Rights Agreement.

 

1.

Acknowledgment. Transferee and Transferor each acknowledge that Transferee is acquiring Common Shares of the Company from Transferor, upon the terms and subject to the conditions of the Registration Rights Agreement.

 

2.

Assignment. Transferor hereby assigns its rights under the Registration Rights Agreement as follows:

 

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Transferor assigns all rights under the Registration Rights Agreement to Transferee. Transferor confirms that it is not a Demand Holder pursuant to Section 2.02 of the Registration Rights Agreement and Transferee confirms that it will not acquire the rights offered a Demand Holder pursuant to Section 2.02 of the Registration Rights Agreement (“Demand Holder Rights”).

 

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Transferor assigns all rights under the Registration Rights Agreement to Transferee, including all Demand Holder Rights of Transferor. Transferor and Transferee each confirm that Transferee is a Permitted Transferee and that Transferor and Transferee have each provided notice of this assignment to the Company pursuant to Section 2.02(g) of the Registration Rights Agreement.

 

3.

Agreement. Transferee agrees that it shall be fully bound by and subject to the terms of the Registration Rights Agreement and the terms of this Joinder.

 

4.

Notice. Any notice required or permitted by the Agreement shall be given to Transferee at the address listed beside Transferee’s signature below.

[SIGNATURE PAGE FOLLOWS]

Exhibit 10.3

EXECUTION VERSION

Amended and Restated Restrictive Covenants Side Letter

August 18, 2020

Reference is hereby made to that certain Restrictive Covenants Side Letter (the “Original Side Letter”), dated August 1, 2016, by and among Disco (Cayman) Acquisition Co. (the “Acquiror”), Disco Topco Holdings (Cayman), L.P. (the “Partnership”), Apax Partners, L.P., Accenture Holdings plc, Accenture International SARL (“Accenture International”) and Accenture LLP (“Accenture LLP”). The signatories hereto entered into the Original Side Letter in connection with the consummation of the transactions contemplated by the Transaction Agreement, by and among the Partnership, Accenture LLP, Accenture International and the Acquiror, dated as of April 14, 2016 (the “Transaction Agreement”). Reference is also made to the Fifth Amended and Restated Limited Partnership Agreement of the Partnership, by and among Disco (Cayman) GP Co. and the limited partners party thereto, dated as of June 5, 2020, as amended (the “A&R LP Agreement”). Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the A&R LP Agreement.

The signatories hereto desire to amend and restate the Original Side Letter in its entirety as set forth in this amended and restated letter agreement (this “Restated Side Letter”)

For purposes of this Restated Side Letter (i) “Restricted Activities” means end-to-end integration, end-to-end project management, end-to-end deployment, change management and end-to-end testing services for client specific requirements necessary beyond software configuration-and-customization-focused services (“System Integration Services”); provided, that software configuration- and customization- focused services that optimize the software products of the Partnership for client requirements shall not constitute “Restricted Activities” and (ii) “Restricted Markets” means the markets of North America, the United Kingdom, Ireland, Australia and New Zealand.

None of the Partnership or its Subsidiaries will perform the Restricted Activities without the prior written consent of the Accenture Investors; provided, that the Partnership and its Subsidiaries shall be permitted (x) to acquire any target Person or business either (1) listed on Schedule A hereto or (2) any other target Person or business so long as revenues generated (A) by Restricted Activities conducted by such target Person or business do not constitute more than 50.0% of such target’s aggregate revenues in the most recent fiscal year and (B) by Restricted Activities marketed to third parties by such target Person or business do not constitute 25% of such target’s aggregate revenues in the most recent fiscal year; provided, further, that the target Person or business, under ownership of the Partnership (or any of its Subsidiaries), shall be permitted to continue to engage in Restricted Activities consistent with its past practice prior to such acquisition or (y) to perform System Integration Services for property and casualty insurance carriers and agencies at a client’s or prospective client’s request so long as such System Integration Services are not marketed to third parties and such performance does not violate the Alliance Agreement. Notwithstanding the foregoing, (i) the Partnership and its Subsidiaries shall be permitted to perform some or all of the Restricted Activities without the prior written consent of the Accenture Investors for clients or prospective clients (other than Joint Clients (as defined in Section 1.4 of Schedule B to the Alliance Agreement)) with Direct

Written Premiums (“DWP”) of any size so long as (1) the value of the contract (or series of related contracts) to the Partnership and its Subsidiaries for such Restricted Activities (based on the fees to be paid by the client or prospective client) is less than $500,000 in any twelve-month period or (2) the Accenture Investors have indicated in writing to the Partnership or a Subsidiary that the Accenture Group is not interested in performing the applicable Restricted Activity work for such client or prospective client with respect to a particular engagement and (ii) if less than 75.0% of the Indian Business Employees become Transferred Employees (as defined in the Transaction Agreement) then the Partnership and its Subsidiaries shall be permitted to acquire one (1) target Person or business with revenues from Restricted Activities in excess of the limitations set forth in the first sentence of this paragraph so long as such Person or business does not have more than 300 employees, and such Person or business, under the ownership of the Partnership (or any of its Subsidiaries), shall be permitted to engage in Restricted Activities consistent with its past practice prior to such acquisition and as such activities may be applied to the Business.

No member of the Accenture Group shall (x) build or acquire a proprietary software product for the property and casualty insurance industry, including all participants therein, that are competitive with the products of the Partnership or any of its Subsidiaries (provided, that the Accenture Group shall be permitted to (A) build custom solutions at a client’s or prospective client’s request so long as such particular custom solutions are not marketed by the Accenture Group to third parties or resold by the Accenture Group and (B) build or acquire interfaces, accelerators, integrations, methodologies, and other implementation and service-related tools) or (y) make an equity investment in any Person that commercializes a product competitive with products of the Partnership or any of its Subsidiaries (provided, that the Accenture Group shall be permitted (A) to own securities in such a Person referenced in clause (y) to the extent such investment does not represent more than 5.0% of the voting power in such Person and (B) in each case of (x) and (y), make an equity investment in a Person if such Person does not generate revenues from products competitive with those of the Partnership and/or its Subsidiaries that constitute more than 25.0% of such Person’s aggregate revenues in the most recent fiscal year).

The Accenture Group will not acquire a business that generates a majority of its revenues from providing System Integration Services and other related services for applications sold by any of the persons set forth in Schedule B hereto to clients in the Restricted Markets.

The Apax Group will use the Partnership (or a Subsidiary of the Partnership) as the acquisition vehicle for all acquisitions consistent with the Roll-Up Strategy in the Restricted Markets; provided, that the Apax Group shall be permitted to acquire any Person or business if (i) the revenues generated by such target’s Insurance Business do not constitute more than 25.0% of such target’s aggregate revenues in the most recent fiscal year or (ii) the Acquiror has presented such acquisition opportunity to the Board (as defined in the Amended & Restated Memorandum and Articles of Association of the General Partner) and at least one Accenture Director (as defined in the Amended & Restated Memorandum and Articles of Association of the General Partner) has consented to the Partnership declining such opportunity.

Neither the Accenture Group nor the Apax Group (other than the Partnership or its Subsidiaries and any of the Apax Group’s limited partners) will, directly or indirectly, solicit to hire as an employee or engage as consultant or hire as an employee or engage as a consultant any employee of the Partnership and its Subsidiaries (or who was a Business Employee prior to the Closing); provided that the foregoing shall not preclude any member of the Accenture Group or the Apax Group from (x) making a general or public solicitation not targeted at the employees of the Partnership and its Subsidiaries (including, without limitation, by a bona fide search firm or pursuant to an online advertisement), (y) soliciting or hiring any employee whose employment was terminated by the Partnership and its Subsidiaries prior to commencement of employment discussions between the Accenture Group or the Apax Group, on the one hand, and such employee, on the other hand, or (z) hiring any employee who responds to a general or public solicitation not targeted at the employees of the Partnership and its Subsidiaries (including, without limitation, by a bona fide search firm or pursuant to an online advertisement).

None of the Partnership or any of its Subsidiaries will, directly or indirectly, solicit to hire as an employee or engage as consultant any employee of the Accenture Group; provided that the foregoing shall not preclude the Partnership or any of its Subsidiaries from (x) making a general or public solicitation not targeted at the employees of the Accenture Group (including, without limitation, by a bona fide search firm or pursuant to an online advertisement), (y) soliciting any employee whose employment was terminated by the Accenture Group prior to commencement of employment discussions between the Partnership or its Subsidiary, on the one hand, and such employee, on the other hand, or (z) hiring any employee who responds to a general or public solicitation not targeted at the employees of the Accenture Group (including, without limitation, by a bona fide search firm or pursuant to an online advertisement).

This Restated Side Letter shall terminate and be of no further force and effect upon the earlier to occur of (i) August 1, 2021 and (ii) the date on which the Accenture Group owns less than ten percent (10%) of the outstanding Units that are not Class D Units. After the initial public offering of shares of common stock, par value $0.01 per share (“Common Stock”), of Duck Creek Technologies, Inc. (“Duck Creek”), references in this Restated Side Letter to “Units that are not Class D Units” shall be deemed to refer to shares of Common Stock that are not issued pursuant to any equity incentive plan of Duck Creek (including shares of Common Stock issued upon exercise of any options granted under any such equity incentive plan).

Sections 12.1, 12.3. 12.4, 12.5, 12.7, 12.8, 12.9, 12.10, 12.11 and 12.15 of the Transaction Agreement are incorporated herein, mutatis mutandi.

[Remainder of Page Left Intentionally Blank]

IN WITNESS WHEREOF, the parties hereto have executed this Restated Side Letter as of the date first above written.

 

[Signature Page to Amended and Restated Restrictive Covenants Side Letter]

[Signature Page to Amended and Restated Restrictive Covenants Side Letter]

[Signature Page to Amended and Restated Restrictive Covenants Side Letter]

[Signature Page to Amended and Restated Restrictive Covenants Side Letter]

Schedule A

Majesco

Sapiens

Dovetail Insurance

Agencyport Software

Vue Software

Insurity

Insuresoft

ISCS

Instec

One Inc.

Oneshield

Stone River

Innovation Group

Schedule B

Guidewire Software, Inc.