exv10w11



 





Exhibit 10.11




INDEMNIFICATION AGREEMENT




     This Indemnification Agreement (“Agreement”) is made as of    ,
2003 by and between Eclipsys Corporation, a Delaware corporation (the
“Company”), and [Name of Outside Director] (the “Indemnitee”).



     Whereas, Indemnitee is currently serving as an outside director of the
Company and the Company wishes Indemnitee to continue his service in such
capacity without concern of unwarranted personal liability;



     Whereas, the Company desires to attract and retain the services of highly
qualified individuals, such as Indemnitee, to serve as outside directors on the
Company’s Board of Directors (“Board”) and to indemnify its outside directors
so as to provide them with the maximum protection against personal liability
permitted by law;



     Whereas, the Company’s Third Amended and Restated Certificate of
Incorporation (the “Certificate of Incorporation”) authorizes the Company to
provide indemnification and to advance expenses to the full extent not
prohibited by Delaware law;



     Whereas, the Certificate of Incorporation also expressly recognizes that
the indemnification provisions of the Certificate of Incorporation is not
exclusive of, and does not affect, any other rights to which a person seeking
indemnification may be entitled under any agreement;



     Whereas, the Company wishes to provide Indemnitee with an independent
contractual right to indemnification and advancement of defense expenses in
addition to those rights provided in the Certificate of Incorporation;



     Now, Therefore, the Company and Indemnitee hereby agree as follows:



     1. Indemnification in Third Party Proceedings. The Company shall
indemnify, defend, and hold harmless Indemnitee from and against, and shall
compensate and reimburse Indemnitee for, any Damages (as defined below) that
are directly or indirectly suffered or incurred by Indemnitee as a result of,
or are directly or indirectly connected with, any threatened, pending or
completed action or proceeding (other than an action or proceeding by or in the
right of the Company to procure a judgment in its favor), whether civil,
criminal, administrative or investigative, to which Indemnitee is or was a
party, or is threatened to be made a party, by reason of, or arising from, the
fact that Indemnitee is or was a member of the Company’s Board, or the board of
directors of any subsidiary of the Company, by reason of any action or inaction
on the part of Indemnitee in his role as a member of the Company’s Board or by
reason of the fact that Indemnitee is or was serving at the request of the
Company as a director, officer, employee, agent or fiduciary of the Company or
of another corporation, partnership, joint venture, trust or other enterprise,
provided however, that the Company shall not be obligated to indemnify
Indemnitee under this Section 1 unless Indemnitee acted in good faith and in a
manner Indemnitee reasonably believed to be in or not opposed to the best
interests of the Company, and,



 









 





with respect to any criminal action or proceeding, Indemnitee had no
reasonable cause to believe Indemnitee’s conduct was unlawful. The termination
of any action or proceeding by judgment, order, settlement, conviction, or upon
a plea of nolo contendere or its equivalent shall not, of itself, create a
presumption that (i) Indemnitee did not act in good faith, (ii) Indemnitee did
not act in a manner which Indemnitee reasonably believed to be in the best
interests of the Company, or (iii) with respect to any criminal action or
proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s
conduct was unlawful. Anyone seeking to overcome the presumption that
Indemnitee is entitled to indemnification under this Section 1 shall have the
burden of proof and the burden of persuasion by clear and convincing evidence.
“Damages” shall mean any Expenses (as defined below),
judgments, fines and
amounts paid in settlement actually and reasonably incurred by Indemnitee or on
his behalf in connection with an action or proceeding. “Expenses” shall mean
any expenses actually and reasonably incurred by Indemnitee or on his behalf in
connection with an action or proceeding, including any fee (including any legal
fee, expert fee, accounting fee or advisory fee), charge, cost (including any
cost of investigation) or expense of any nature, but shall not include the
amount of any judgments, fines, or amounts paid in settlement of any action or
proceeding.




     2. Indemnification in Proceedings by or in the Right of the Company. The
Company shall indemnify, defend, and hold harmless Indemnitee from and against,
and shall compensate and reimburse Indemnitee for, any Expenses and, to the
extent permitted by law, amounts paid in settlement that are directly or
indirectly suffered or incurred by Indemnitee as a result of, or are directly
or indirectly connected with, any threatened, pending or completed action or
proceeding by or in the right of the Company to procure a judgment in its
favor, to which Indemnitee is or was a party, or is threatened to be made a
party, by reason of, or arising from, the fact that Indemnitee is or was a
member of the Company’s Board, or the board of directors of any subsidiary of
the Company, by reason of any action or inaction on the part of Indemnitee in
his role as a member of the Company’s Board or by reason of the fact that
Indemnitee is or was serving at the request of the Company as a director,
officer, employee, agent or fiduciary of the Company or of another corporation,
partnership, joint venture, trust or other enterprise, provided however, that
the Company shall not be obligated to indemnify Indemnitee under this Section
2: (1) unless Indemnitee acted in good faith and in a manner Indemnitee
reasonably believed to be in or not opposed to the best interests of the
Company; or (2) for any claim, issue or matter as to which Indemnitee shall
have been adjudged to be liable to the Company, unless and only to the extent
that the court in which such action or proceeding is or was pending shall
determine upon application that, despite the adjudication of such liability but
in view of all the circumstances of the case, Indemnitee is fairly and
reasonably entitled to indemnity for Expenses and then only to the extent that
the court shall determine. The termination of any action or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere or
its equivalent shall not, of itself, create a presumption that (i) Indemnitee
did not act in good faith, or (ii) Indemnitee did not act in a manner which
Indemnitee reasonably believed to be in the best interests of the Company.
Anyone seeking to overcome the presumption that Indemnitee is entitled to
indemnification under this Section 2 shall have the burden of proof and the
burden of persuasion by clear and convincing evidence.



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     3. Expenses; Indemnification Procedure.



          (a) Advancement of Expenses. The Company shall advance all Expenses
incurred by Indemnitee in connection with the investigation, defense,
settlement or appeal of any civil or criminal action or proceeding referenced
in Sections 1 or 2 hereof (but not amounts actually paid in settlement of any
such action or proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be determined
such Expenses were not reasonable or that Indemnitee is not entitled to be
indemnified by the Company as authorized hereby. The advances to be made
hereunder shall be paid by the Company to Indemnitee within ten (10) days
following delivery of a written statement therefor by Indemnitee to the
Company. Such statement or statements shall reasonably evidence the Expenses
incurred by the Indemnitee. Any advances and undertakings to repay pursuant to
this Section 3(a) shall be made without regard to the financial ability of the
Indemnitee to make repayment and shall be unsecured and interest free.



          (b) Witness Expenses. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of, or arising from, the
fact that Indemnitee is or was a member of the Company’s Board, or the board of
directors of any subsidiary of the Company, a witness in any proceeding to
which Indemnitee is not a party, he shall be indemnified against all expenses
actually and reasonably incurred by him or on his behalf in connection
therewith.



          (c) Notice/Cooperation by Indemnitee. Indemnitee shall give the Company
notice in writing as soon as practicable of any claim made against Indemnitee
for which indemnification will or could be sought under this Agreement. Notice
to the Company shall be directed to the President of the Company at the address
shown on the signature page of this Agreement (or such other address as the
Company shall designate in writing to Indemnitee). In addition, Indemnitee
shall give the Company such information and cooperation as it may reasonably
require and as shall be within Indemnitee’s power.



          (d) Procedure. Any indemnification provided for in Section 1 or 2 shall
be made no later than forty-five (45) days after receipt of the written request
of Indemnitee. If a claim under this Agreement, under any statute, or under
any provision of the Company’s Certificate of Incorporation or Bylaws providing
for indemnification, is not paid in full by the Company within forty-five (45)
days after a written request for payment thereof has first been received by the
Company, Indemnitee may, but need not, at any time thereafter bring an action
against the Company to recover the unpaid amount of the claim and, subject to
Section 17 of this Agreement, Indemnitee shall also be entitled to be paid for
the Expenses (including attorneys’ fees) of bringing such action. It shall be
a defense to any such action (other than an action brought to enforce a claim
for Expenses incurred in connection with any action or proceeding in advance of
its final disposition) that Indemnitee has not met the standards of conduct
which make it permissible under applicable law for the Company to indemnify
Indemnitee for the amount claimed, but the burden of proving such defense shall
be on the Company, and Indemnitee shall be entitled to receive interim payments
of Expenses pursuant to Subsection 3(a) unless and until such defense may be
finally adjudicated by court order or judgment from which no further right of
appeal exists. It is the parties’ intention that if the Company contests
Indemnitee’s right to indemnification, the question of Indemnitee’s right to
indemnification shall be for the court to decide, and neither the failure of
the Company (including its Board of



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Directors, any committee or subgroup of the Board of Directors,
independent legal counsel, or its shareholders) to have made a determination
that indemnification of Indemnitee is proper in the circumstances because
Indemnitee has met the applicable standard of conduct required by applicable
law, nor an actual determination by the Company (including its Board of
Directors, any committee or subgroup of the Board of Directors, independent
legal counsel, or its shareholders) that Indemnitee has not met such applicable
standard of conduct, shall create a presumption that Indemnitee has or has not
met the applicable standard of conduct.




          (e) Settlements. Notwithstanding anything to the contrary contained
herein, the Company shall not be required to indemnify the Indemnitee under
this Agreement for any amounts paid in settlement of any action or proceeding
effected without the Company’s prior written consent. The Company shall not
settle any action or proceeding in any manner that would impose any penalty or
limitation on Indemnitee without Indemnitee’s prior written consent. Neither
the Company nor the Indemnitee shall unreasonably withhold their consent to any
proposed settlement.



          (f) Selection of Counsel. In the event the Company shall be obligated
under Section 3(a) hereof to pay the Expenses of any proceeding against
Indemnitee, the Company, if appropriate, shall be entitled to assume the
defense of such proceeding, with counsel approved by Indemnitee, which approval
shall not be unreasonably withheld, upon the delivery to Indemnitee of written
notice of its election so to do. After delivery of such notice, approval of
such counsel by Indemnitee and the retention of such counsel by the Company,
the Company will not be liable to Indemnitee under this Agreement for any fees
of counsel subsequently incurred by Indemnitee with respect to the same
proceeding, provided that (i) Indemnitee shall have the right to employ his
counsel in any such proceeding at Indemnitee’s expense; and (ii) if (A) the
employment of counsel by Indemnitee has been previously authorized by the
Company, (B) counsel to the Indemnitee shall have reasonably concluded that
there may be a conflict of interest between the Company and Indemnitee in the
conduct of any such defense or (C) the Company shall not, in fact, have
employed counsel to assume the defense of such proceeding, then the fees and
expenses of Indemnitee’s counsel shall be at the expense of the Company except
as otherwise expressly provided in this Agreement.



     4. Additional Indemnification Rights; Nonexclusivity.



          (a) Scope. Notwithstanding any other provisions of this Agreement, the
Company hereby agrees to indemnify the Indemnitee to the fullest extent
permitted by law, notwithstanding that such indemnification is not specifically
authorized by the other provisions of this Agreement, the Company’s Certificate
of Incorporation, the Company’s Bylaws or by statute. In the event of any
change, after the date of this Agreement, in any applicable law, statute or
rule which expands the right of a Delaware corporation to indemnify a member of
its Board, such changes shall be, ipso facto, within the purview of
Indemnitee’s rights and Company’s obligations, under this Agreement. In the
event of any change in any applicable law, statute or rule which narrows the
right of a Delaware corporation to indemnify a member of its Board, such
changes, to the extent not otherwise required by such law, statute or rule to
be applied to this Agreement shall have no effect on this Agreement or the
parties’ rights and obligations hereunder.



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          (b) Nonexclusivity. The indemnification provided by this Agreement shall
not be deemed exclusive of any rights to which Indemnitee may be entitled under
the Company’s Certificate of Incorporation, its Bylaws, any agreement, any vote
of shareholders or disinterested directors, Delaware law, or otherwise, both as
to action in Indemnitee’s official capacity and as to action in another
capacity while holding such office. The indemnification provided under this
Agreement shall continue as to Indemnitee for any action taken or not taken
while serving in an indemnified capacity even though he may have ceased to
serve in such capacity at the time of any action or otherwise covered
proceeding.



     5. Partial Indemnification. If Indemnitee is entitled under any provision
of this Agreement to indemnification by the Company for some or a portion of
the Expenses, judgments, fines, or amounts paid in settlement actually or
reasonably incurred by him in the investigation, defense, appeal or settlement
of any civil or criminal action or proceeding, but not, however, for the total
amount thereof, the Company shall nevertheless indemnify Indemnitee for the
portion of such Expenses, judgments, fines, or amounts paid in settlement to
which Indemnitee is entitled. For purposes of this Section 5 and without
limitation, the termination of any claim, issue or matter by dismissal, with or
without prejudice, shall be deemed to be a successful result as to such claim,
issue or matter.



     6. Mutual Acknowledgment. Both the Company and Indemnitee acknowledge
that in certain instances, Federal law or applicable public policy may prohibit
the Company from indemnifying its directors, officers or other advisors under
this Agreement or otherwise. Indemnitee understands and acknowledges that the
Company has undertaken or may be required in the future to undertake with the
Securities and Exchange Commission to submit the question of indemnification to
a court in certain circumstances for a determination of the Company’s right
under public policy to indemnify Indemnitee.



     7. Severability. Nothing in this Agreement is intended to require or
shall be construed as requiring the Company to do or fail to do any act in
violation of applicable law. The Company’s inability, pursuant to applicable
law (as determined by a court of competent jurisdiction), to perform its
obligations under this Agreement shall not constitute a breach of this
Agreement. The provisions of this Agreement shall be severable as provided in
this Section 7. If this Agreement or any portion hereof shall be invalidated
on any ground by any court of competent jurisdiction, then the Company shall
nevertheless indemnify Indemnitee to the full extent permitted by any
applicable portion of this Agreement that shall not have invalidated, and the
balance of this Agreement not so invalidated shall be enforceable in accordance
with its terms.



     8. Exceptions. Any other provision herein to the contrary
notwithstanding, the Company shall not be obligated pursuant to the terms of
this Agreement to indemnify Indemnitee or to advance Expenses in connection
with any of the following:



          (a) Excluded Acts. With respect to any acts or omissions or transactions
from which a director may not be relieved of liability under Delaware law;



          (b) Claims Initiated by Indemnitee. With respect to proceedings or claims
initiated or brought voluntarily by Indemnitee and not by way of defense,
except with respect to



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proceedings brought to establish or enforce a right to indemnification
under this Agreement or any other statute or law, but such indemnification or
advancement of Expenses may be provided by the Company in specific cases if the
Board of Directors has approved the initiation or bringing of such suit;




          (c) Lack of Good Faith. For any Expenses incurred by the Indemnitee with
respect to any proceeding instituted by Indemnitee to enforce or interpret this
Agreement, if a court of competent jurisdiction determines that each of the
material assertions made by the Indemnitee in such proceeding was not made in
good faith or was frivolous;



          (d) Claims Under Section 16(b). For Expenses and the payment of profits
arising from the purchase and sale by Indemnitee of securities in violation of
Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
similar successor statute;



          (e) Insurance Payments. To the extent that payment is actually made to
the Indemnitee under a valid, enforceable and collectible insurance policy;



          (f) Other Payments. To the extent that the Indemnitee is indemnified and
actually paid otherwise than pursuant to this Agreement; or



          (g) Personal Advantage. If it is proved by final judgment in a court of
law or other final adjudication to have been based upon or attributable to the
Indemnitee’s in fact having gained any personal profit or advantage to which he
was not legally entitled.



     9. Remedies of Indemnitee.



          (a) In the event that (i) the Company makes a determination that
Indemnitee is not entitled to indemnification under Section 1 or 2 of this
Agreement, (ii) advancement of Expenses is not timely made pursuant to Section
3 of this Agreement, (iii) payment of indemnification is not made pursuant to
this Agreement within forty-five days after receipt by the Company of a written
request therefore, Indemnitee shall be entitled to an adjudication in an
appropriate court in the state of Delaware, or in any other court of competent
jurisdiction, of his entitlement to such indemnification.



          (b) In the event that Indemnitee, pursuant to this Section 9, seeks a
judicial adjudication of his rights under, or to recover damages for breach of,
this Agreement, or to recover under any directors’ and officers’ liability
insurance policies maintained by the Company, the Company shall pay on his
behalf, in advance, any and all expenses actually and reasonably incurred by
him in such judicial adjudication, regardless of whether Indemnitee ultimately
is determined to be entitled to such indemnification, advancement of expenses
or insurance recovery, unless as a part of such adjudication, the court of
competent jurisdiction determines that each of the material assertions made by
Indemnitee as a basis for such action were not made in good faith or were
frivolous.



     10. Insurance. To the extent that the Company maintains an insurance
policy or policies providing liability insurance for directors, officers,
employees, or agents or fiduciaries of the Company or any other corporation,
partnership, joint venture or other enterprise which such person serves at the
request of the Company, Indemnitee shall be covered by such policy or



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policies in accordance with its or their terms to the maximum extent of
the coverage available for any such director, officer, employee or agent under
such policy or policies.




     11. Subrogation. In the event of any payment under this Agreement, the
Company shall be subrogated to the extent of such payment to all of the rights
of recovery of Indemnitee, who shall execute all papers required and take all
action necessary to secure such rights, including execution of such documents
as are necessary to enable the Company to bring suit to enforce such rights.



     12. Effectiveness of Agreement. To the extent that the indemnification
permitted under the terms of certain provisions of this Agreement exceeds the
scope of the indemnification provided for under Delaware law, such provisions
shall not be effective unless and until the Company’s Certificate of
Incorporation authorize such additional rights of indemnification. In all
other respects, the balance of this Agreement shall be effective as of the date
set forth on the first page.



     13. Enforcement. The Company expressly confirms and agrees that it has
entered into this Agreement and assumed the obligations imposed on it hereby in
order to induce Indemnitee to serve as a director of the Company, and the
Company acknowledges that Indemnitee is relying upon this Agreement as
consideration for serving as a director of the Company.



     14. Construction of Certain Phrases.



          (a) For purposes of this Agreement, references to the “Company” shall
include, in addition to the resulting corporation, any constituent corporation
(including any constituent of a constituent) absorbed in a consolidation or
merger which, if its separate existence had continued, would have had power and
authority to indemnify its directors, officers, employees or agents, so that if
Indemnitee is or was a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, Indemnitee
shall stand in the same position under the provisions of this Agreement with
respect to the resulting or surviving corporation as Indemnitee would have with
respect to such constituent corporation if its separate existence had
continued.



          (b) For purposes of this Agreement, references to “other enterprises”
shall include employee benefit plans; references to “fines” shall include any
excise taxes assessed on Indemnitee with respect to an employee benefit plan;
and references to “serving at the request of the Company” shall include any
service as a director, officer, employee or agent of the Company which imposes
duties on, or involves services by, such director, officer, employee or agent
with respect to an employee benefit plan, its participants, or beneficiaries.



     15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original.



     16. Successors and Assigns. This Agreement shall be binding upon the
Company and its successors and assigns, and shall inure to the benefit of
Indemnitee and Indemnitee’s estate, heirs, legal representatives and assigns.
This agreement will continue in effect whether Indemnitee continues to serve as
an officer or director of the Company or any other enterprise at the Company’s
request.



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     17. Attorneys’ Fees. In the event that any action is instituted by
Indemnitee under this Agreement to enforce or interpret any of the terms
hereof, Indemnitee shall be entitled to be paid all court costs and expenses,
including reasonable attorneys’ fees, incurred by Indemnitee with respect to
such action, unless as a part of such action, the court of competent
jurisdiction determines that each of the material assertions made by Indemnitee
as a basis for such action were not made in good faith or were frivolous. In
the event of an action instituted by or in the name of the Company under this
Agreement or to enforce or interpret any of the terms of this Agreement,
Indemnitee shall be entitled to be paid all court costs and expenses, including
attorneys’ fees, incurred by Indemnitee in defense of such action (including
with respect to Indemnitee’s counterclaims and cross-claims made in such
action), unless as a part of such action the court determines that each of
Indemnitee’s material defenses to such action were made in bad faith or were
frivolous.



     18. Notices. All notices, requests, demands and other communications
under this Agreement shall be in writing and shall be deemed duly given (i) if
delivered by hand and receipted for by the party addressee, on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail, properly
addressed with postage prepaid, on the third business day after the date
postmarked; otherwise a notice shall be deemed duly given when such notice
shall be actually received by the addressee. Addresses for notice to either
party are as shown on the signature page of this Agreement, or as subsequently
modified by written notice. The failure to notify the Company shall not
relieve the Company of any obligation which it may have to the Indemnitee under
this Agreement or otherwise.



     19. Modification and Waiver. No supplement, modification, termination or
amendment of this Agreement shall be binding unless executed in writing by both
parties. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such wavier constitute a continuing waiver.



     20. Choice of Law. This Agreement shall be governed by and its provisions
construed in accordance with the laws of the State of Delaware as applied to
contracts between Delaware residents entered into and to be performed entirely
within Delaware.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the parties hereto have executed this Indemnification
Agreement as of the date first above written.



	 	 	 	 	 	 	 
	AGREED TO AND ACCEPTED
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	INDEMNITEE:	 	 	 	COMPANY:
	 
	 	 	 	 	 	 
	
	 	 	 	

	By: [Name of Outside Director]
	 	 	 	 	 	 
	

	 	 	 	By:
	 	

	

	 	 	 	Title:
	 	

	

	 	 	 	Address:	 	 
	 	 	 	 	

	 	 	 	 	

	 	 	 	 	








 









 






 2.