EMPLOYMENT AGREEMENT
v7.4
THIS EMPLOYMENT AGREEMENT
(“Agreement’) is made and entered into as of
February 24, 2009 by and between ATHENAHEALTH, INC. (the
“Company”), and the undersigned Employee
(“Employee”).
The parties
hereby agree as follows:
(a) The
Company employs Employee, and Employee accepts employment with the
Company, upon the terms and conditions contained in this
Agreement.
(b) The
Company and Employee acknowledge that Employee’s employment
is at-will, and is for no definite period of time. However,
Employee and the Company expect that Employee will work as an
Employee for at least one year and no longer than two years.
Employee acknowledges and agrees that this Agreement will govern
the terms of Employee’s employment with Company, even though
compensation levels may be adjusted by Company from time to time by
assent of the parties hereto.
(c) Immediately
following Employee’s employment with the Company for at least
one year, if Employee’s service is for a period of three and
one half years or less, and provided that Employee is not invited
to serve on the Company’s Board of Directors, Employee shall
be offered the opportunity to serve as a consultant to the Company
on mutually agreeable terms through such date that is no later than
three and one half years following the grant date of the Employee
Stock Option described in Schedule A .
During the
period that Employee is employed under this Agreement (the
“Employment Period”), Employee will serve in the
position set forth in the attached Schedule A or in such other
positions and with such other duties and responsibilities as
Company will from time to time assign to employee. Employee will
perform the duties of Employee’s position faithfully for the
Company and in accordance with the reasonable directives of the
Company. Employee will comply with procedures and policies as
established by the Company from time to time. Employee will devote
substantially all of Employee’s business time and effort to
the performance of Employee’s duties to the Company. Employee
acknowledges that execution of Employee’s duties in a timely,
consistent and prudent manner is vital to the successful operations
of the Company and that it is essential that Employee conduct the
duties of this position with constant and watchful attention.
Employee will participate in Company’s compliance training
and act in accordance with the Company’s Compliance
Principles and its Code of Conduct, in conformity with the
Company’s compliance and integrity plan. Prior to
Employee’s termination of employment with the Company,
Employee will have performed the work to (i) hire a
replacement COO, or (ii) choose a Company employee for the COO
position, or (iii) plan a structure in which the COO job is
eliminated through an organizational structure in which certain
identified operating executives report to the CEO.
Employee’s compensation will be as set
forth in the attached Schedule A.
(a) The
Company agrees to reimburse Employee, in accordance with the
Company’s policies as amended by the Company from time to
time, for reasonable expenses paid or incurred by Employee in
connection with the performance of Employee’s duties for the
Company hereunder.
(b) Employee
will be entitled to vacation, sick days and leave of absence in
accordance with Company policies, as amended by the Company from
time to time.
(c) Employee
will be entitled to participate in health, life, or disability
insurance, and retirement, pension, or profit-sharing plans that
may be instituted by the Company for the benefit of its management
Employees generally, upon such terms contained therein.
(a) Since
Employee’s employment is at-will employment, either Employee
or the Company may terminate Employee’s employment at any
time for any reason or for no reason.
(b) Upon the
termination of Employee’s employment for any reason, the
parties will have no further obligations under this Agreement,
except that the obligations of Employee under Sections 6, 7,
8, 9 and 10 and the provisions of Sections 12 and 13 will
remain in effect and be binding upon the parties after
termination.
6.
Effect of Termination.
(a) The
Company will have no liability or obligation to Employee upon
Employee’s termination other than as specifically set forth
in Sections 5(b) and 6, or as provided by law.
(b) Upon the
termination of Employee’s employment, Employee will be
entitled to receive only such portion (if any) of the Base Salary
as may have accrued but be unpaid on the date of termination, any
accrued and unpaid vacation pay, outstanding expenses reimbursable
under the Company’s then applicable policies, and other
benefits which may be owing through the date of
termination.
(c) Upon the
termination of Employee’s employment for any reason, Employee
will immediately surrender to the Company all Company property in
the possession, custody or control of Employee, including but not
limited to all computer hardware, software, computer disks and/or
data storage devices, notes, data, sketches, drawings, manuals,
documents, records, data bases, programs, blueprints, memoranda,
specifications, customer lists, financial reports, and equipment
and will also immediately surrender to the Company all documents
and other media containing any Confidential Information (as defined
in Section 7 hereof).
(d) If the
Company terminates Employee during Employee’s first year of
employment with the Company for any reason other than for Cause,
then the Company shall pay to Employee within thirty (30) days
following such termination a lump sum amount equal to the unpaid
portion of Employee’s housing allowance as agreed pursuant to
Schedule A hereto. For purposes hereof, “Cause”
means any of the following: (i) dishonesty, embezzlement,
misappropriation of assets or property of the Company;
(ii) gross negligence, misconduct, neglect of duties, theft,
fraud, or breach of fiduciary duty to the Company;
(iii) violation of federal or state securities laws;
(iv) breach of an employment, consulting or other agreement
with the Company; or (v) the conviction of a felony, or any
crime involving moral turpitude, including a plea of guilty or
nolo contendre .
7.
Confidential Information.
(a) Except as
specifically provided in this Section 7(a),
“Confidential Information” means all information or
material that relates to any of the Company’s products or
services or any phase or aspect of its operations, business or
financial affairs that: (i) is not generally known to the
public, (ii) that is designated by the Company as
Confidential, or (iii) that a reasonable person familiar with
the Company’s business would understand is confidential to
the Company or would harm the Company if not kept confidential.
Employee acknowledges and agrees that Confidential Information
includes, but is not limited to, the following types of information
and other information of a similar nature (whether or not reduced
to writing): Company Inventions (as defined below), trade secrets,
specifications, know-how, processes, formulas, models, work flows,
software completed or in various stages of development, source
codes, object codes, research and development procedures, test
results, marketing techniques and materials, marketing and
development plans, price lists, pricing policies, business plans,
information relating to customers’ and/or suppliers’
identities or characteristics or agreements, financial information
and projections and personnel files. Confidential Information also
includes, but is not limited to, any information described above
which the Company obtains from another party and which the Company
treats and/or has an obligation to treat as confidential or
designates as Confidential Information, whether or not developed by
the Company. Confidential Information comprises information in all
forms, spoken, written, recorded or contained in any media
whatsoever, whether now in existence or to be invented in the
future. (The term “Company,” in this Section 7(a),
means not only athenahealth, Inc., but also any company,
partnership or entity which, directly or indirectly, controls, is
controlled by or is under common control with athenahealth,
Inc.)
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(b) Employee
recognizes and acknowledges that Company is regulated as a Covered
Entity under the Health Insurance Portability and Accountability
Act of 1996 (“HIPAA”). Employee recognizes and
acknowledges that Employee may have access to Protected Health
Information (“PHI”) as defined under HIPAA in the
course of employment and that such PHI is Confidential Information,
subject to strict confidentially and security restrictions under
HIPAA, under applicable Company policies and under other applicable
law.
(c) All
Confidential Information and all documents and other media that
contain Confidential Information (whether obtained or created
before, during or after the Employment Period) including but not
limited to information relating to all Company Inventions pursuant
to the provisions of Section 8(a) below will remain the property of
the Company and not the Employee and will be delivered to the
Company at any time upon the Company’s request and upon the
termination of Employee’s employment.
(d) All
Confidential Information will be held confidential by Employee.
During the Employment period the Employee will not (nor will
Employee assist any other person to), directly or indirectly:
(i) reveal, report, publish or otherwise disclose such
Confidential Information to any person, firm, corporation,
association or other entity for any reason or purpose whatsoever
except as necessary in the course of carrying out Employee’s
duties hereunder or as expressly authorized by the Company; or,
(ii) use such Confidential Information except for the benefit
of the Company and in the course of Employee’s employment
with the Company. In all cases, all disclosure and use of
Confidential Information will, in addition to the foregoing:
(i) be limited to and in conformity with all applicable
Company policies and procedures, including but not limited to
documentation of non-disclosure and confidentiality obligations;
and, (ii) limited to the amount of information necessary for
the reason or purpose justifying the disclosure or use. After the
Employment Period, Employee will not disclose or use Confidential
Information without prior written consent of the Company that
explicitly specifies the disclosure or use; and, any such
disclosure or use will be subject to all obligations and
restrictions set forth in this Agreement as if made during the
Employment Period. Both during the Employment Period and at all
times thereafter Employee will not render any services to any
person, firm, corporation, association or other entity to whom any
such Confidential Information, in whole or in part, has been
disclosed or is threatened to be disclosed contrary to the
provisions of this Section 7(d). This Section 7(d) will not
apply to the extent Employee is required to disclose any
Confidential Information by applicable law or legal process
provided that Employee promptly notifies the Company of such
pending disclosure and consults with and cooperates with the
Company prior to such disclosure concerning the advisability of
seeking a protective order or other means of preserving the
confidentiality of the Confidential Information.
(a) During
the Employment Period and thereafter, Employee will disclose
promptly to the Company any and all Company Inventions (as defined
below). Employee hereby assigns, and agrees during the Employment
Period and thereafter to assign, to the Company all of
Employee’s right, title and interest in any Company
Inventions and in any and all applications and registrations for
any form of intellectual property applicable to any Company
Inventions. Employee acknowledges that all Company Inventions
consisting of Works are intended to be “works made for
hire”, as that term is defined in Section 101 of the
United States Copyright Act of 1976 (the “Act”), and
will be automatically the sole property of the Company within the
meaning of the Act. If the copyright to any such Works will not be
the property of the Company by operation of law, Employee will,
without further consideration, assign to the Company all of my
right, title and interest in such the copyright to such Works.
Employee hereby waives, to the extent permitted by law, all claims
to moral rights in any Company Inventions.
(i)
“Company Inventions” will mean any and all Inventions
and Works in whole or in part conceived, made or reduced to
practice by Employee (either solely or in conjunction with others)
during or after the Employment Period that (A) are made
through the use of any of the Company’s Confidential
Information, Company Inventions, equipment, facilities, supplies,
funds or proprietary rights or other property of the Company,
(B) relate to the Company’s business or the
Company’s actual or demonstrably anticipated research and
development or business, or (C) result from any work performed
by Employee for the Company.
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(ii)
“Inventions” will mean any ideas, designs, concepts,
techniques, inventions and discoveries, whether or not patentable
or protectable by copyright and whether or not reduced to practice,
including, but not limited to, devices, processes, methods,
techniques, algorithms, trade secrets, and know-how.
(iii)
“Works” will mean any and all original works of
authorship in any written, electronic, video, or audio records (or
any other tangible medium, existing now or in the future, on which
information is fixed), including without limitation all mask works,
software, computer files, computer programs (in both object and
source code), computer
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