INDEMNIFICATION AGREEMENT
Exhibit 10.1
This Agreement made and entered into this ___day of ___, (the “Agreement”), by and
between athenahealth, Inc., a Delaware corporation (the “Company,” which term shall include, where
appropriate, any Entity (as hereinafter defined) controlled directly or indirectly by the Company)
and ___(the “Indemnitee”):
WHEREAS, it is essential to the Company that it be able to retain and attract as directors the
most capable persons available;
WHEREAS, increased corporate litigation has subjected directors to litigation risks and
expenses, and the limitations on the availability of directors and officers liability insurance
have made it increasingly difficult for the Company to attract and retain such persons;
WHEREAS, the Company’s By-laws (“By-laws”) require it to indemnify its directors to the
fullest extent permitted by law and permit it to make other indemnification arrangements and
agreements;
WHEREAS, the Company desires to provide Indemnitee with specific contractual assurance of
Indemnitee’s rights to full indemnification against litigation risks and expenses (regardless,
among other things, of any amendment to or revocation of the By-laws or any change in the ownership
of the Company or the composition of its Board of Directors);
WHEREAS, the Company intends that this Agreement provide Indemnitee with greater protection
than that which is provided by the Company’s By-laws; and
WHEREAS, Indemnitee is relying upon the rights afforded under this Agreement in [becoming]
[continuing as] a [director/officer] of the Company.
NOW, THEREFORE, in consideration of the promises and the covenants contained herein, the
Company and Indemnitee do hereby covenant and agree as follows:
1. Definitions.
(a) “Corporate Status” describes the status of a person who is serving or has served (i) as a
director or officer of the Company, (ii) in any capacity with respect to any employee benefit plan
of the Company, or (iii) as a director, partner, trustee, officer, employee, or agent of any other
Entity at the request of the Company. For purposes of subsection (iii) of this Section 1(a), if
Indemnitee is serving or has served as a director, partner, trustee, officer, employee or agent of
a Subsidiary, Indemnitee shall be deemed to be serving at the request of the Company.
(b) “Entity” shall mean any corporation, partnership, limited liability company, joint
venture, trust, foundation, association, organization or other legal entity.
(c) “Expenses” shall mean all fees, costs and expenses incurred by Indemnitee in connection
with any Proceeding (as defined below), including, without limitation, attorneys’ fees,
disbursements and retainers (including, without limitation, any such fees,
disbursements and retainers incurred by Indemnitee pursuant to Sections 10 and 11(c) of this
Agreement), fees and disbursements of expert witnesses, private investigators and professional
advisors (including, without limitation, accountants and investment bankers), court costs,
transcript costs, fees of experts, travel expenses, duplicating, printing and binding costs,
telephone and fax transmission charges, postage, delivery services, secretarial services, and other
disbursements and expenses.
(d) “Indemnifiable Expenses,” “Indemnifiable Liabilities” and “Indemnifiable Amounts” shall
have the meanings ascribed to those terms in Section 3(a) below.
(e) “Liabilities” shall mean judgments, damages, liabilities, losses, penalties, excise taxes,
fines and amounts paid in settlement.
(f) “Proceeding” shall mean any threatened, pending or completed claim, action, suit,
arbitration, alternate dispute resolution process, investigation, administrative hearing, appeal,
or any other proceeding, whether civil, criminal, administrative, arbitrative or investigative,
whether formal or informal, including a proceeding initiated by Indemnitee pursuant to Section 10
of this Agreement to enforce Indemnitee’s rights hereunder.
(g) “Subsidiary” shall mean any corporation, partnership, limited liability company, joint
venture, trust or other Entity of which the Company owns (either directly or through or together
with another Subsidiary of the Company) either (i) a general partner, managing member or other
similar interest or (ii) (A) 50% or more of the voting power of the voting capital equity interests
of such corporation, partnership, limited liability company, joint venture or other Entity, or (B)
50% or more of the outstanding voting capital stock or other voting equity interests of such
corporation, partnership, limited liability company, joint venture or other Entity.
2. Services of Indemnitee. In consideration of the Company’s covenants and
commitments hereunder, Indemnitee agrees to serve or continue to serve as a [director/officer] of
the Company. However, this Agreement shall not impose any obligation on Indemnitee or the Company
to continue Indemnitee’s service to the Company beyond any period otherwise required by law or by
other agreements or commitments of the parties, if any.
3. Agreement to Indemnify. The Company agrees to indemnify Indemnitee as follows:
(a) Proceedings Other Than By or In the Right of the Company. Subject to the exceptions
contained in Section 4(a) below, if Indemnitee was or is a party or is threatened to be made a
party to any Proceeding (other than an action by or in the right of the Company) by reason of
Indemnitee’s Corporate Status, Indemnitee shall be indemnified by the Company against all Expenses
and Liabilities incurred or paid by Indemnitee in connection with such Proceeding (referred to
herein as “Indemnifiable Expenses” and “Indemnifiable Liabilities,” respectively, and collectively
as “Indemnifiable Amounts”).
(b) Proceedings By or In the Right of the Company. Subject to the exceptions contained in
Section 4(b) below, if Indemnitee was or is a party or is threatened to be made a
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party to any Proceeding by or in the right of the Company by reason of Indemnitee’s Corporate
Status, Indemnitee shall be indemnified by the Company against all Indemnifiable Expenses.
(c) Conclusive Presumption Regarding Standard of Care. In making any determination
required to be made under Delaware law with respect to entitlement to indemnification hereunder,
the person, persons or entity making such determination shall presume that Indemnitee is entitled
to indemnification under this Agreement if Indemnitee submitted a request therefor in accordance
with Section 5 of this Agreement, and the Company shall have the burden of proof to overcome that
presumption in connection with the making by any person, persons or entity of any determination
contrary to that presumption.
4. Exceptions to Indemnification. Indemnitee shall be entitled to indemnification
under Sections 3(a) and 3(b) above in all circumstances other than with respect to any specific
claim, issue or matter involved in the Proceeding out of which Indemnitee’s claim for
indemnification has arisen, as follows:
(a) Proceedings Other Than By or In the Right of the Company. If indemnification is requested
under Section 3(a) and it has been finally adjudicated by a court of competent jurisdiction that,
in connection with such specific claim, issue or matter, Indemnitee failed to act (i) in good faith
and (ii) in a manner Indemnitee reasonably believed to be in or not opposed to the best interests
of the Company, or, with respect to any criminal Proceeding, Indemnitee had reasonable cause to
believe that Indemnitee’s conduct was unlawful, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder.
(b) Proceedings By or In the Right of the Company. If indemnification is requested under
Section 3(b) and
(i) it has been finally adjudicated by a court of competent jurisdiction that, in
connection with such specific claim, issue or matter, Indemnitee failed to act (A) in good
faith and (B) in a manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, Indemnitee shall not be entitled to payment of Indemnifiable
Expenses hereunder; or
(ii) it has been finally adjudicated by a court of competent jurisdiction that
Indemnitee is liable to the Company with respect to such specific claim, Indemnitee shall
not be entitled to payment of Indemnifiable Expenses hereunder with respect to such claim,
issue or matter unless the Court of Chancery or another court in which such Proceeding was
brought shall determine upon application that, despite the adjudication of liability, but in
view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to
indemnification for such Indemnifiable Expenses which such court shall deem proper; or
(iii) it has been finally adjudicated by a court of competent jurisdiction that
Indemnitee is liable to the Company for an accounting of profits made from the purchase or
sale by the Indemnitee of securities of the Company pursuant to the provisions of Section
16(b) of the Securities Exchange Act of 1934, the rules and regulations promulgated
thereunder and amendments thereto or similar provisions of any
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federal, state or local statutory law, Indemnitee shall not be entitled to payment of
Indemnifiable Expenses hereunder.
(c) Insurance Proceeds. To the extent payment is actually made to the Indemnitee
under a valid and collectible insurance policy in respect of Indemnifiable Amounts in connection
with such specific claim, issue or matter, Indemnitee shall not be entitled to payment of
Indemnifiable Amounts hereunder except in respect of any excess beyond the amount of payment under
such insurance.
5. Procedure for Payment of Indemnifiable Amounts. Indemnitee shall submit to the
Company a written request specifying the Indemnifiable Amounts for which Indemnitee seeks payment
under Section 3 of this Agreement and the basis for the claim. The Company shall pay such
Indemnifiable Amounts to Indemnitee promptly upon receipt of its request. At the request of the
Company, Indemnitee shall furnish such documentation and information as are reasonably available to
Indemnitee and necessary to establish that Indemnitee is entitled to indemnification hereunder.
6. Indemnification for Expenses of a Party Who is Wholly or Partly Successful.
Notwithstanding any other provision of this Agreement, and without limiting any such provision, to
the extent that Indemnitee is, by reason of Indemnitee’s Corporate Status, a party to and is
successful, on the merits or otherwise, in any Proceeding, Indemnitee shall be indemnified against
all Expenses reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection therewith.
If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or
otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the
Company shall indemnify Indemnitee against all Expenses reasonably incurred by Indemnitee or on
Indemnitee’s behalf in connection with each successfully resolved claim, issue or matter. For
purposes of this Agreement, the termination of any claim, issue or matter in such a Proceeding by
dismissal, with or without prejudice, by reason of settlement, judgment, order or otherwise, shall
be deemed to be a successful result as to such claim, issue or matter.
7. Effect of Certain Resolutions. Neither the settlement or termination of any
Proceeding nor the failure of the Company to award indemnification or to determine that
indemnification is payable shall create a presumption that Indemnitee is not entitled to
indemnification hereunder. In addition, the termination of any proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not create a
presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably
believed to be in or not opposed to the best interests of the Company or, with respect to any
criminal Proceeding, had reasonable cause to believe that Indemnitee’s action was unlawful.
8. Agreement to Advance Expenses; Undertaking. The Company shall advance all Expenses
incurred by or on behalf of Indemnitee in connection with any Proceeding, including a Proceeding by
or in the right of the Company, in which Indemnitee is involved by reason of such Indemnitee’s
Corporate Status within ten (10) calendar days after the receipt by the Company of a written
statement from Indemnitee requesting such advance or advances from time to time, whether prior to
or after final disposition of such Proceeding. To the extent required by Delaware law, Indemnitee
hereby undertakes to repay any and all of the amount of Indemnifiable
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Expenses paid to Indemnitee if it is finally determined by a court of competent jurisdiction
that Indemnitee is not entitled under this Agreement to indemnification with respect to such
Expenses. This undertaking is an unlimited general obligation of Indemnitee.
9. Procedure for Advance Payment of Expenses. Indemnitee shall submit to the Company
a written request specifying the Indemnifiable Expenses for which Indemnitee seeks an advancement
under Section 8 of this Agreement, together with documentation evidencing that Indemnitee has
incurred such Indemnifiable Expenses. Payment of Indemnifiable Expenses under Section 8 shall be
made no later than ten (10) calendar days after the Company’s receipt of such request.
10. Remedies of Indemnitee.
(a) Right to Petition Court. In the event that Indemnitee makes a request for payment
of Indemnifiable Amounts under Sections 3 and 5 above or a request for an advancement of
Indemnifiable Expenses under Sections 8 and 9 above and the Company fails to make such payment or
advancement in a timely manner pursuant to the terms of this Agreement, Indemnitee may petition the
Court of Chancery to enforce the Company’s obligations under this Agreement.
(b) Burden of Proof. In any judicial proceeding brought under Section 10(a) above,
the Company shall have the burden of proving that Indemnitee is not entitled to payment of
Indemnifiable Amounts hereunder.
(c) Expenses. The Company agrees to reimburse Indemnitee in full for any Expenses
incurred by Indemnitee in connection with investigating, preparing for, litigating, defending or
settling any action brought by Indemnitee under Section 10(a) above, or in connection with any
claim or counterclaim brought by the Company in connection therewith, whether or not Indemnitee is
successful in whole or in part in connection with any such action.
(d) Failure to Act Not a Defense. The failure of the Company (including its Board of
Directors or any committee thereof, independent legal counsel, or stockholders) to make a
determination concerning the permissibility of the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses under this Agreement shall not be a defense in any action
brought under Section 10(a) above, and shall not create a presumption that such payment or
advancement is not permissible.
11. Defense of the Underlying Proceeding.
(a) Notice by Indemnitee. Indemnitee agrees to notify the Company promptly upon being
served with any summons, citation, subpoena, complaint, indictment, information, or other document
relating to any Proceeding which may result in the payment of Indemnifiable Amounts or the
advancement of Indemnifiable Expenses hereunder; provided, however, that the failure to give any
such notice shall not disqualify Indemnitee from the right, or otherwise affect in any manner any
right of Indemnitee, to receive payments of Indemnifiable Amounts or advancements of Indemnifiable
Expenses unless the Company’s ability to defend in such Proceeding is materially and adversely
prejudiced thereby.
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(b) Defense by Company. Subject to the provisions of the last sentence of this
Section 11(b) and of Section 11(c) below, the Company shall have the right to defend Indemnitee in
any Proceeding which may give rise to the payment of Indemnifiable Amounts hereunder; provided,
however that the Company shall notify Indemnitee of any such decision to defend within ten (10)
calendar days of receipt of notice of any such Proceeding under Section 11(a) above. The Company
shall not, without the prior written consent of Indemnitee, consent to the entry of any judgment
against Indemnitee or enter into any settlement or compromise which (i) includes an admission of
fault of Indemnitee or (ii) does not include, as an unconditional term thereof, the full release of
Indemnitee from all liability in respect of such Proceeding, which release shall be in form and
substance reasonably satisfactory to Indemnitee. This Section 11(b) shall not apply to a
Proceeding brought by Indemnitee under Section 10(a) above or pursuant to Section 19 below.
(c) Indemnitee’s Right to Counsel. Notwithstanding the provisions of Section 11(b)
above, if in a Proceeding to which Indemnitee is a party by reason of Indemnitee’s Corporate
Status, (i) Indemnitee reasonably concludes that he or she may have separate defenses or
counterclaims to assert with respect to any issue which may not be consistent with the position of
other defendants in such Proceeding, (ii) a conflict of interest or potential conflict of interest
exists between Indemnitee and the Company, or (iii) if the Company fails to assume the defense of
such proceeding in a timely manner, Indemnitee shall be entitled to be represented by separate
legal counsel of Indemnitee’s choice at the expense of the Company. In addition, if the Company
fails to comply with any of its obligations under this Agreement or in the event that the Company
or any other person takes any action to declare this Agreement void or unenforceable, or institutes
any action, suit or proceeding to deny or to recover from Indemnitee the benefits intended to be
provided to Indemnitee hereunder, Indemnitee shall have the right to retain counsel of Indemnitee’s
choice, at the expense of the Company, to represent Indemnitee in connection with any such matter.
12. Representations and Warranties of the Company. The Company hereby represents and
warrants to Indemnitee as follows:
(a) Authority. The Company has all necessary power and authority to enter into, and
be bound by the terms of, this Agreement, and the execution, delivery and performance of the
undertakings contemplated by this Agreement have been duly authorized by the Company.
(b) Enforceability. This Agreement, when executed and delivered by the Company in
accordance with the provisions hereof, shall be a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or
similar laws affecting the enforcement of creditors’ rights generally.
13. Insurance. The Company shall, from time to time, make the good faith
determination whether or not it is practicable for the Company to obtain and maintain a policy or
policies of insurance with a reputable insurance company providing the Indemnitee with coverage for
losses from wrongful acts. For so long as Indemnitee shall remain a [director/officer] of the
Company and with respect to any such prior service, in all policies of director and officer
liability insurance, Indemnitee shall be named as an insured in such a manner
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as to provide Indemnitee the same rights and benefits as are accorded to the most favorably
insured of the Company’s officers and directors. Notwithstanding the foregoing, the Company shall
have no obligation to obtain or maintain such insurance if the Company determines in good faith
that such insurance is not reasonably available, if the premium costs for such insurance are
disproportionate to the amount of coverage provided, or if the coverage provided by such insurance
is limited by exclusions so as to provide an insufficient benefit. The Company shall promptly
notify Indemnitee of any good faith determination not to provide such coverage.
14. Contract Rights Not Exclusive. The rights to payment of Indemnifiable Amounts and
advancement of Indemnifiable Expenses provided by this Agreement shall be in addition to, but not
exclusive of, any other rights which Indemnitee may have at any time under applicable law, the
Company’s Certificate of Incorporation or By-laws, or any other agreement, vote of stockholders or
directors (or a committee of directors), or otherwise, both as to action in Indemnitee’s official
capacity and as to action in any other capacity as a result of Indemnitee’s serving as a
[director/officer] of the Company.
15. Successors. This Agreement shall be (a) binding upon all successors and assigns
of the Company (including any transferee of all or a substantial portion of the business, stock
and/or assets of the Company and any direct or indirect successor by merger or consolidation or
otherwise by operation of law) and (b) binding on and shall inure to the benefit of the heirs,
personal representatives, executors and administrators of Indemnitee. This Agreement shall
continue for the benefit of Indemnitee and such heirs, personal representatives, executors and
administrators after Indemnitee has ceased to have Corporate Status.
16. Subrogation. In the event of any payment of Indemnifiable Amounts under this
Agreement, the Company shall be subrogated to the extent of such payment to all of the rights of
contribution or recovery of Indemnitee against other persons, and Indemnitee shall take, at the
request of the Company, all reasonable action necessary to secure such rights, including the
execution of such documents as are necessary to enable the Company to bring suit to enforce such
rights.
17. Change in Law. To the extent that a change in Delaware law (whether by statute or
judicial decision) shall permit broader indemnification or advancement of expenses than is
provided under the terms of the By-laws and this Agreement, Indemnitee shall be entitled to such
broader indemnification and advancements, and this Agreement shall be deemed to be amended to such
extent.
18. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Agreement, or any clause thereof, shall be determined by a court of competent
jurisdiction to be illegal, invalid or unenforceable, in whole or in part, such provision or clause
shall be limited or modified in its application to the minimum extent necessary to make such
provision or clause valid, legal and enforceable, and the remaining provisions and clauses of this
Agreement shall remain fully enforceable and binding on the parties.
19. Indemnitee as Plaintiff. Except as provided in Section 10(c) of this Agreement
and in the next sentence, Indemnitee shall not be entitled to payment of Indemnifiable Amounts
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or advancement of Indemnifiable Expenses with respect to any Proceeding brought by Indemnitee
against the Company, any Entity which it controls, any director or officer thereof, or any third
party, unless the Board of Directors of the Company has consented to the initiation of such
Proceeding. This Section shall not apply to counterclaims or affirmative defenses asserted by
Indemnitee in an action brought against Indemnitee.
20. Modifications and Waiver. Except as provided in Section 17 above with respect to
changes in Delaware law which broaden the right of Indemnitee to be indemnified by the Company, no
supplement, modification or amendment of this Agreement shall be binding unless executed in writing
by each of the parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions of this Agreement (whether or not
similar), nor shall such waiver constitute a continuing waiver.
21. General Notices. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered by
hand, (b) when transmitted by facsimile and receipt is acknowledged, or (c) if mailed by certified
or registered mail with postage prepaid, on the third business day after the date on which it is so
mailed:
(a) If to Indemnitee, to:
(b) If to the Company, to:
or to such other address as may have been furnished in the same manner by any party to the others.
22. Governing Law; Consent to Jurisdiction; Service of Process. This Agreement shall
be governed by and construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company and the Indemnitee hereby irrevocably and
unconditionally consents to submit to the exclusive jurisdiction of the Court of Chancery of the
State of Delaware and the courts of the United States of America located in the State of Delaware
(the “Delaware Courts”) for any litigation arising out of or relating to this
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Agreement and the transactions contemplated hereby (and agrees not to commence any litigation
relating thereto except in such courts), waives any objection to the laying of venue of any such
litigation in the Delaware Courts and agrees not to plead or claim in any Delaware Court that such
litigation brought therein has been brought in an inconvenient forum. Each of the parties hereto
agrees, (a) to the extent such party is not otherwise subject to service of process in the State of
Delaware, to appoint and maintain an agent in the State of Delaware as such party’s agent for
acceptance of legal process, and (b) that service of process may also be made on such party by
prepaid certified mail with a proof of mailing receipt validated by the United States Postal
Service constituting evidence of valid service. Service made pursuant to (a) or (b) above shall
have the same legal force and effect as if served upon such party personally within the State of
Delaware. For purposes of implementing the parties’ agreement to appoint and maintain an agent for
service of process in the State of Delaware, each such party does hereby appoint The Corporation
Trust Company, 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxx Xxxxxx Xxxxxx, Xxxxxxxx 00000, as such agent and
each such party hereby agrees to complete all actions necessary for such appointment.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
| ATHENAHEALTH, INC. | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| INDEMNITEE | ||||
