exv10w29





Exhibit 10.29



PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.




SECOND AMENDED AND RESTATED MARKETING AND SALES AGREEMENT




     This Second Amended and Restated Marketing and Sales Agreement (“Agreement”) between WORLDMED
SHARED SERVICES, INC. d/b/a PSS WORLD MEDICAL SHARED SERVICES, INC. (“PSS”), with its offices at
4345 Southpoint Boulevard, Jacksonville, Florida, 32216, and athenahealth, Inc., a Delaware
corporation (“Athena”), with offices at 311 Arsenal Street, Watertown, MA 02472, (the “Parties”) is
effective this 21st day of October, 2010 (“Effective Date”). Each of PSS and Athena are sometimes
referred to herein as a “Party” and collectively, as the “Parties”.



     WHEREAS Athena, a developer of innovative web-based solutions for practice automation, billing
and collections needs, and PSS, an independent marketing and sales organization, entered into a
Marketing and Sales Agreement, effective December 12, 2006 (the “Initial Agreement”), pursuant to
which Athena and PSS established a relationship whereby PSS promotes and arranges for initial
orders for Athena’s services to existing and prospective customers.



     WHEREAS Athena and PSS entered into an Amended and Revised Marketing and Sales Agreement,
effective May 24, 2007, amending and restating the Initial Agreement.



     WHEREAS Athena and PSS entered into an Agreement of Amendment to the Amended and Revised
Marketing and Sales Agreement, dated June 22, 2007 (as so amended, the “First Amended Agreement”).



     WHEREAS Athena and PSS desire to further amend and restate the First Amended Agreement and
accept the rights, obligations and covenants set forth in this Agreement in lieu of their
respective rights, obligations and covenants under the First Amended Agreement.



     THEREFORE, PSS and Athena agree to the following terms and conditions:




			
	1	 	DEFINITIONS





     The following terms have the meaning indicated here when used in this Agreement:




	 	1.1	 	“Affiliate” means, with respect to either Party, any person,
firm, corporation or other legal entity which controls or is controlled by or
under common control with such Party.
	 
	 	1.2	 	“Athenahealth Services Agreement” means the agreement between
Athena and the PSS/Athena Customer governing the provision of Revenue Cycle
Services, Clinical Cycle Services and/or Patient Cycle Services, as
applicable, the current forms of which are attached hereto as Exhibit
B-1, Exhibit B-2 and Exhibit B-3 respectively.
	 
	 	1.3	 	“Athena Competitor” means any business or subsidiary thereof
that has a significant portion of its revenue derived from the distribution
and/or sale




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 		 	of healthcare information technology products and/or the provision of
services similar in nature and scope to those offered by Athena (regionally
or nationally).
	 
	 	1.4	 	“Bolt-On” means a software module that is an enhancement to an
existing practice management information system or billing system or service,
and that does not, alone or in conjunction with other Bolt-On modules, perform
substantially all of the functions of such a system or service or otherwise
constitute a replacement for such system or service.
	 
	 	1.5	 	“Change of Control” means, with respect to either Party, the
consummation of (1) the dissolution or liquidation of such Party, (2) the sale
of all or substantially all of the assets of such Party on a consolidated basis
to an unrelated person or entity, (3) a merger, reorganization or consolidation
in which the outstanding shares of stock are converted into or exchanged for
securities of the successor entity and the holders of such Party’s outstanding
voting power immediately prior to such transaction do not own at least a
majority of the outstanding voting power of the successor entity immediately
upon completion of such transaction, (4) the sale of all or a majority of the
stock of the Party to an unrelated person or entity in a single transaction or
series of related transactions, or (5) any other transaction or series of
related transactions in which the holders of the Party’s outstanding voting
power immediately prior to such transaction do not own at least a majority of
the outstanding voting power of the Party or a successor entity immediately
upon completion of the transaction.
	 
	 	1.6	 	“Clinical Cycle Services” means Athena’s
athenaClinicalsSM service as it is defined from time to time by Athena
in its standard service specifications, or other Athena services relating to
the management of electronic health records and clinical processes as may be
set forth from time to time in an addendum to this Agreement.
	 
	 	1.7	 	“Estimated Contract Value” means, with respect to a PSS Order
or customer contract with a Practice,an amount equal to the
estimated aggregate of annual recurring revenue to Athena from such PSS Order
or customer contract, such estimate to be calculated by Athena using the
same methodology that Athena uses to calculate commissions for its internal
sales force.
	 
	 	1.8	 	“Initial Sale” means a contract by a Practice for purchase of
any Services pursuant to a PSS Order that is the first contract of that
Practice for any services with Athena.
	 
	 	1.9	 	“Order” means an Athena-approved contract form fully filled out
and executed by a PSS Lead for Services, accompanied by a cash deposit from




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	 	 	the Practice in the amount requested by Athena. Orders may be accepted
by Athena only at its home office and only by its Chief Executive Officer or
Senior Vice President, Customer Services, or the designee of either of them.
No Athena sales personnel are authorized to accept any Order.
	 
	 	1.10	 	“Patient Cycle Services” means Athena’s athenaCommunicator
service as defined from time to time by Athena in its standard service
specifications, or other Athena services relating to patient portal services as
may be set forth from time to time in an addendum to this Agreement.
	 
	 	1.11	 	“Practice” means a physician practice that: (a) has its
principle place of business within the Territory, (b) is not on any exclusion
list of the United States or any state government or any government agency, (c)
is not a governmental entity and (d) does not bill government payors on a cost
or other pass-through basis. Practices may also be referred to as “End-Users”.
Practices may be defined as either Group Practices or Enterprise Practices. A
“Group” Practice is a physician group consisting of 1-150 full-time-equivalent
(“FTE”) physicians, and an “Enterprise” Practice is defined as a physician
group consisting of 151 or more FTE physicians. Group Practices are further
delineated as follows: (i) a “Small Group” is a Practice of 1-3 FTE
physicians; (ii) a “Mid-Group” is a Practice comprised of 4-10 FTE physicians;
and (iii) a “Large Group” is a Practice comprised of 11-150 FTE physicians.
	 
	 	1.12	 	“Proposal” means a document prepared by Athena and provided to
PSS proposing contractual terms and conditions to PSS Leads.
	 
	 	1.13	 	“PSS/Athena Customers” shall mean PSS Leads who execute an
Order during the term of this Agreement which Order is accepted and executed by
Athena.
	 
	 	1.14	 	“PSS Competitor” means any business or subsidiary thereof that
has a significant portion of its revenue derived from the distribution and/or
sale of medical, surgical and/or pharmaceutical products and/or the provision
of services similar in nature and scope to those offered by PSS (regionally or
nationally).
	 
	 	1.15	 	“PSS Leads” means those Practices who are registered by Athena
as such pursuant to the provisions of Sections 7.2 and 7.3 hereof.
	 
	 	1.16	 	“PSS Order” means an Order executed by a PSS Lead.
	 
	 	1.17	 	“Revenue Cycle Services” means Athena’s
athenaCollector® service as defined from time to time by Athena in its
standard service specifications,




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 		 	or other Athena services relating to physician practice management as
may be set forth from time to time in an addendum to this Agreement.
	 
	 	1.18	 	“Services” means Revenue Cycle Services, Clinical Cycle
Services and/or Patient Cycle Services, as applicable.
	 
	 	1.19	 	“Similar Services” means Similar Revenue Cycle Services,
Similar Clinical Cycle Services and/or Patient Cycle Services, as applicable.
	 
	 	1.20	 	“Similar Revenue Cycle Services” means a third party’s systems,
software or services that perform or facilitate physician practice management;
patient registration; patient scheduling; bill or accounts receivable
generation and tracking; practice financial performance reporting; recovery of
patient demographic, insurance and charge data; charge posting; tracking or
follow-up on collections; and/or any other activity that is a substitute for
some or all of the Revenue Cycle Services.
	 
	 	1.21	 	“Similar Clinical Cycle Services” means a third party’s
systems, software or services that perform or facilitate the management of key
clinical processes, including medical record documentation, order management,
results processing, fax categorization and access to aggregated clinical
patient information, and/or any other activity that is a substitute for some or
all of the functionality of the Clinical Cycle Services.
	 
	 	1.22	 	“Similar Patient Cycle Services” means a third party’s system,
software or services that perform or facilitate patient portal services and/or
any other activity that is a substitute for some or all of the Patient Cycle
Services.
	 
	 	1.23	 	“Territory” means the USA, excluding Hawaii.
	 
	 	1.24	 	“Virtual Sales Method” means Athena’s method of selling its
Services using the internet and telephone sales, without the intervention of a
face-to-face sales call by Athena sales personnel, provided that the presence
of Athena personnel for sales coaching or training, including but not limited
to such presence under Section 2.2 below, will not constitute a face-to-face
sales call by Athena.






			
	2	 	MARKETING; DEVELOPMENT






	 	2.1	 	During the term of this Agreement, Athena, at its sole cost and
expense, shall maintain at least [***] channel partner associates
(each, an “Athena/PSS Channel Partner Associate”) that are trained to support
PSS field activities. For the avoidance of doubt, the Parties agree that each
Athena/PSS Channel Partner Associate shall be made available to PSS as may be
mutually arranged, but are not provided to PSS on an exclusive




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 		 	basis. Upon PSS’ request to Athena for “ride-day” assistance, Athena
shall use commercially reasonable efforts to make available an Athena/PSS
Channel Partner Associate by no later than [***] business days
after such request, and (b) upon PSS’ request to Athena for “demonstration”
assistance, Athena shall use commercially reasonable efforts to make
available an Athena/PSS Channel Partner Associate by no later than
[***] business days after such request.
	 
	 	2.2	 	At PSS’s request and upon reasonable notice, Athena will
provide demonstrations of the Services through an Athena/PSS Channel Partner
Associate.
	 
	 	2.3	 	Athena hereby grants PSS (including its Affiliates) the
non-exclusive right to distribute, sell, market and promote the Services only
in the Territory, subject to the terms and conditions of this Agreement. PSS
shall ensure that the PSS sales representatives (each a “PSS Sales Rep”) are
required to comply with the terms and conditions of this Agreement. For the
avoidance of doubt, nothing in this Agreement shall prohibit or restrict PSS
from marketing, promoting, selling, or otherwise providing to any customer any
product or service that is competitive with or similar to any product and/or
service offered, sold or otherwise provided by Athena,including without limitation, products and/or services that are competitive with or similar to any one or more of the Services.
	 
	 	2.4	 	Athena and PSS will cooperate to develop specifications for,
and resource allocation and compensation in connection therewith, an [***]
for the Revenue Cycle Services by [***]. The completion of the
integration will be targeted for [***], with the goal of delivering a
functioning and marketable integration that meets the mutually-agreed
objectives of the Parties by [***].
	 
	 	2.5	 	Athena intends to develop and offer to PSS for sale to PSS
Leads an interface between Clinical Cycle Services and the diagnostic devices
set forth in Exhibit E by the target dates and in accordance with the
terms and conditions set forth on Exhibit E.
	 
	 	2.6	 	Athena and PSS agree to meet at least twice each year at
mutually convenient locations and times to discuss the status of activities
under this Agreement, as well as possible functionalities for inclusion in
Athena’s future product and service offerings.






			
	3	 	RELATIONSHIP OF THE PARTIES






 









 







PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	3.1	 	The relationship of PSS to Athena shall be that of an independent
contractor engaged in marketing and selling the Services to PSS’s current and
prospective customers.
	 
	 	3.2	 	Nothing contained in this Agreement shall be deemed to create a
partnership or joint venture between the Parties. Neither the making nor the
performance of this Agreement shall be construed in any manner to have
established a joint venture or partnership.
	 
	 	3.3	 	Neither Party shall hold itself out as the agent of the other,
nor shall they incur any indebtedness or obligations in the name of, or which
shall be binding on the other, without the prior written consent of the other.
Each Party assumes full responsibility for its own personnel under laws and
regulations of the governmental authorities of the competent jurisdiction.
	 
	 	3.4	 	Both Parties shall comply with all laws, regulations and orders
relating to its performance under this Agreement, including without limitation
all anti-fraud and anti-kickback laws, regulations and orders. PSS and Athena
each agrees, warrants and certifies that in performance of this Agreement
it will fully comply with the provisions of the Social Security Act, Section
1128B(b) (42 U.S.C. Section 1320a-7b(b)) which prohibit the knowing or
willful offer, solicitation or receipt of any remuneration, including
discounts and/or rebates, directly or indirectly, in return for purchasing,
leasing or ordering, or arranging for or recommending the purchase, lease or
order, of any services or items, including any Services, for which payment
may be made in whole or in part under a federal health care program.
	 
	 	3.5	 	Without limiting the generality of Section 3.4, neither Party
shall, directly or indirectly, pay any compensation, amounts, benefits or other
consideration to any employee of the other Party, or any family member of the
other Party’s employee, (other than customary gifts valued under $100 in the
course of one year, and business meals in the ordinary course) without the
express written consent of the other Party. The provisions of this Section
shall survive termination or expiration of this Agreement for any reason.
	 
	 	3.6	 	Athena agrees not to send any product, or marketing materials
or other communications (including without limitation, email, voice mail,
direct mail or fax) to a Group of PSS’s employees or agents without prior
written approval from PSS. For purposes of this Section, a “Group” is defined
as more than five (5) people receiving the same or similar communication. The
provisions of this Section shall survive termination or expiration of this
Agreement for any reason.




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	3.7	 	PSS will not be entitled to any commission with respect to any sale made or
Order obtained by Athena other than with respect to a PSS Lead as set forth
herein.






			
	4	 	TERM OF AGREEMENT






	 	4.1	 	The term of this Agreement shall commence on the Effective Date
and, subject to any earlier termination of this Agreement in accordance with
its terms, shall continue for a period of three (3) years. Subject to any
earlier termination of this Agreement in accordance with its terms, this
Agreement shall automatically renew after the initial three-year term and the
term of this Agreement shall be extended for successive one-year periods unless
either Party gives notice of termination no later than sixty (60) days prior to
expiration of the then-current term.
	 
	 	4.2	 	In the event of expiration or termination of this Agreement for
any reason, this Agreement, including Section 5.6 and Exhibit A, shall
continue to apply to all Orders accepted by Athena prior to such expiration or
termination.






			
	5	 	TERMINATION






	 	5.1	 	If either Party breaches or fails to perform any of the
material obligations imposed upon it under the terms of this Agreement, the
other Party may terminate the Agreement in the event the breaching Party fails
to cure such breach within sixty (60) days after receiving written notice of
such breach from the non-breaching Party.
	 
	 	5.2	 	To the extent permitted by law, if either Party becomes
insolvent, is unable to pay its debts when due, files for bankruptcy, is
subject of involuntary bankruptcy, has a receiver appointed, or has its assets
assigned, the other Party may terminate this Agreement immediately upon notice
to the other Party and may cancel any unfulfilled obligations.
	 
	 	5.3	 	Either Party may terminate this Agreement without cause by
giving the other Party at least one hundred twenty (120) days written notice
thereof.
	 
	 	5.4	 	A Party may terminate this Agreement by written notice to the
other Party within thirty (30) days after a Change of Control of such other
Party.
	 
	 	5.5	 	In event of a termination of this Agreement, (i) PSS shall
immediately cease marketing, promoting or initiating sales of the Services,
(ii) PSS shall cease use of all Athena trademarks, service marks and trade
names and (iii) each Party shall return all Confidential Information and other
tangible materials as provided herein.




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	5.6	 	If this Agreement is terminated by Athena in accordance with Section 5.1,
then Athena shall be entitled to cease payment of commissions that would
otherwise accrue and be due to PSS after the date of such termination. In
addition, if a PSS/Athena Customer’s Athenahealth Services Agreement is
terminated based on actions not caused by Athena, then, for such PSS/Athena
Customer only, Athena shall be entitled to cease payment of commissions that
would otherwise accrue and be due to PSS after the date of such termination.
Except as expressly stated in this Section 5.6, Athena shall not discontinue, interrupt, shorten the duration of or otherwise reduce the payment of commissions due to PSS under this Agreement.






			
	6	 	ASSIGNMENT





            During the term of this Agreement, the rights of either Party under this Agreement shall not
be assigned nor shall the performance of duties hereunder be delegated, without the other Party’s
prior written consent, which shall not be unreasonably withheld; provided however, either Party may
assign this Agreement (i) to an Affiliate that is an Affiliate as of the date of execution of this
Agreement; (ii) to an Affiliate whose assets consist entirely of the assets of an Affiliate or
Affiliates that were Affiliates as of the date of execution of this Agreement; or (iii) in the
event of the sale of all or substantially all the assets of the Party or a controlling interest in
the Party. Notwithstanding the generality of the foregoing, in the event Athena, or a controlling
interest therein, is acquired by a third party, whether through merger, restructuring, sale of
assets, sale of stock or otherwise, Athena agrees to require the successor third party to assume
all obligations under this Agreement. This Agreement shall be binding on all successors and assigns
of Athena.




			
	7	 	PRICES AND PAYMENTS






	 	7.1	 	Athena shall pay PSS a commission for the sale of the Services
to PSS Leads in accordance with this Agreement and Exhibit A, attached
hereto, subject to any applicable offsets in accordance with Exhibit A.
	 
	 	7.2	 	For purposes of this Agreement, a Practice shall be deemed a
registered PSS Lead if it has been introduced to Athena through any one of the
following marketing tactics and is registered in accordance with Section 7.3
below:






	 	(a)	 	The PSS Sales Rep scheduled a telephone or face-to-face meeting
with a representative of the Practice and Athena. PSS shall use
commercially reasonable efforts to provide documented Practice-specific
information as reasonably and mutually agreed to by PSS and Athena prior
to such meeting;
	 
	 	(b)	 	The PSS Sales Rep is responsible for a representative of the
Practice attending an Athenahealth sales webinar;




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	(c)	 	The PSS Sales Rep has directed a representative of the Practice
to attend a local Athenahealth sales seminar; or
	 
	 	(d)	 	The PSS Sales Rep called and informed the appropriate Athena
sales representative of the Practice and documented Practice-specific
information as reasonably required by Athena.






	 	7.3	 	If PSS, through its pursuit of one or more of the tactics set
forth in Section 7.2 above or otherwise, identifies a Practice that it believes
in good faith could generate an Order, PSS will inform Athena by e-mail or by
telephone in accordance with Section 7.2 (d) above, identifying the Practice,
its size and specialty. If Athena has not previously registered the Practice
in its customer relationship management system as a lead, and unless Athena
knows that pursuit of the sale is not advisable, Athena will promptly (within
two business days) notify PSS by e-mail that the Practice is qualified and
registered as of the date of such email, and the Practice will be deemed a “PSS
Lead”: (a) for a period of [***] months from the date of such
registration if the Practice is a Group Practice; and (b) for a period of
[***] months from the date of such registration if the Practice is an
Enterprise Practice. Notwithstanding the immediately preceding sentence, if
the lead has attended in person a meeting with Athena or an Athena
demonstration event, the Practice will be deemed a PSS Lead (x) for a period of
[***] months from the date of such registration if the Practice is a
Group Practice; and (y) for a period of [***] months from the date of
such registration if the Practice is an Enterprise Practice. If the Practice
is already registered in Athena’s customer relationship management system as a
lead, Athena shall in good faith conduct a diligent review to determine the
background of the lead and to determine if it was properly registered and
maintained as a lead, and shall, as promptly as is practicable, inform PSS in
writing of the results of such review and the reasons for not registering the
potential customer as a PSS Lead. Notwithstanding anything to the contrary in
this Agreement, if Athena contracts for the provision of any Services (other
than Services sold to PSS/Athena Customers after the Initial Sale, which shall
be commissionable in accordance with the terms set forth in Section 5 of
Exhibit A) to a PSS Lead during the periods specified above in this
Section 7.3, such contract shall be deemed an Initial Sale under a PSS Order
for purposes of this Agreement.
	 
	 	7.4	 	Athena will effectively and promptly follow up on all PSS Leads
within 10 days of the Practice being deemed a PSS Lead and Athena will keep PSS
informed of the results. However, if Athena reasonably and in good faith
believes that pursuit of the sale is not advisable, it shall so notify PSS
promptly after designation of the Practice as a PSS Lead, and in such




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	 	 	event Athena shall not be obligated to follow up on such PSS Lead. If
the PSS Lead is a Mid-Group or larger Practice, Athena’s follow-up
activities shall include an in-person meeting between the Practice and an
Athena field sales rep. If the PSS Lead is a Small Group Practice, Athena’s
follow-up activities may consist solely of its Virtual Sales Method.
	 
	 	7.5	 	Payment from Athena to PSS shall be in U.S. dollars fully
payable within thirty (30) days following each month-end. A commission payment
report will be submitted to PSS within fifteen (15) days following each
month-end.
	 
	 	7.6	 	In competitive situations or as part of a large order, PSS and
Athena may agree on a special price arrangement. In addition, Athena may, in
collaboration with PSS, agree to discount standard pricing by up to
[***]% (or up to the then current discount threshold for Athena’s
sales representatives) under circumstances in which price is mutually
determined by Athena and PSS to be an obstacle to a sale of Services. For
avoidance of doubt, the foregoing does not grant any right to PSS to determine
the pricing of any of the Services to Athena customers, nor does the fact that
PSS may receive commissions under this Agreement be deemed to prevent Athena
from (a) offering other discounts or credits to customers, (b) declining to
contract with prospective customers, or (c) terminating customer contracts,
each as Athena, alone, determines.
	 
	 	7.7	 	To the extent Athena is not otherwise prohibited under this
Agreement from using other independent resellers of the Services, Athena
(including its Affiliates, successors and assigns) agrees that the commission
rates and the total commission payout to be paid to PSS under this Agreement
shall be at least as favorable as the commission rates and/or total commission
payout to be paid by Athena, as applicable, to other independent resellers of
Athena’s Services.
	 
	 	7.8	 	PSS shall be permitted to generate leads for the sale of the
Services from any and all markets.
	 
	 	7.9	 	Athena will not pay its sales personnel a higher commission
rate with respect to sales of Services to customers other than PSS/Athena
Customers than it pays on sales to PSS/Athena Customers.
	 
	 	7.10	 	Athena’s commission payments hereunder will remain unchanged
regardless of sales resulting from PSS Leads into any and all markets.
	 
	 	7.11	 	PSS/Athena Customers will not pay a higher amount for the
Services than similarly situated customers of the Services.




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





			
	8	 	OBLIGATIONS OF PSS






	 	8.1	 	PSS will use commercially reasonable efforts to promote and
market the Services within the Territory, and engage in sales activities
approved by Athena in writing in the Territory, including but not limited to
prospecting for sales leads and distributing printed material supplied by
Athena to potential customers. Athena may, but will not be obligated to
identify sales leads for PSS.
	 
	 	8.2	 	PSS will introduce Athena sales personnel to PSS Leads and will
coordinate and participate (where reasonably feasible for it) in an initial
sales meeting with such Practices and in demonstration of the Services by
Athena.
	 
	 	8.3	 	PSS will assist Athena in identifying Practice needs and
expectations with respect to Proposals.
	 
	 	8.4	 	As reasonably requested by Athena, the PSS sales representative
will coordinate and participate in presentations of Proposals to PSS Leads.
	 
	 	8.5	 	PSS will transmit to PSS Leads Athena technical information and
other pre-sales customer liaison information to Athena and will provide
pre-sales advice to Athena as to the implementation of Services and training
programs. PSS will inform Athena of all inquiries and requests of PSS Leads
relating to the potential sales of Services, will promptly and diligently
collect and communicate to Athena all requests for price and term quotes from
PSS Leads, and will contemporaneously furnish Athena with copies of all
pertinent correspondence and communications by PSS with PSS Leads.
	 
	 	8.6	 	PSS will provide such other assistance with respect to PSS
Leads as Athena may from time to time reasonably request.
	 
	 	8.7	 	PSS will make periodic reports to Athena, as reasonably
requested by Athena, with respect to potential sales, including available
information relating to commercial conditions in the Territory.
	 
	 	8.8	 	PSS will adhere to Athena’s price and terms established for any
Practice and will not offer, promise, agree to or disclose prices or terms for
Services not as explicitly approved by Athena in writing on a
Practice-by-Practice basis (except for disclosure required by law). PSS will
adhere to, cooperate and comply with Athena’s sales policies and programs, will
at all times conduct its business in a manner as will reflect favorably on
Athena and the Services and will not engage in any deceptive, misleading,
illegal or unethical business practice.




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	8.9	 	PSS will at all times designate and refer to the Services by their current
names (as designated by Athena) and identify them as the Services of Athena
being offered for sale through PSS. PSS will not represent or permit
representation of the Services as its own, as supplied by it or as contracted
by it. PSS will not engage in advertising or in Internet or media promotions
or in any direct mail or telephone or fax marketing campaign of the Services.
For the avoidance of doubt, sales information concerning the Services provided
to Practices who call the PSS call center shall not constitute a telephone
marketing campaign. No signage, written material, business cards, brochures, or
other descriptions of PSS or its business will include mention of Athena unless
individually and specifically approved in writing by a vice-president or higher
officer of Athena. In advance of any use or distribution, PSS will furnish and
get Athena’s written approval for copies of all written or electronic matter
used by PSS which are not supplied by Athena and in which Athena or the
Services are mentioned.
	 
	 	8.10	 	PSS will promptly advise Athena concerning any market
information that may come to PSS’s attention regarding the Services, PSS’s
market position, and the continued competitiveness of the Services in the
marketplace, including charges, complaints, or claims about the Services. PSS
shall confer with Athena from time to time, at the request of Athena on matters
relating to market conditions, sales forecasting and service planning.
	 
	 	8.11	 	PSS will not make any representations, warranties, or
guarantees to End-Users or to the public with respect to the specifications,
features or capabilities of athenaNet® services that are inconsistent with the
literature distributed by Athena, including all warranties, disclaimers, and
license terms contained in such literature.
	 
	 	8.12	 	PSS will be responsible for all expenses incurred by it in
connection with the implementation and performance of its duties and
obligations under this Agreement, including but not limited to, the expenses
incurred in fulfilling its duties and responsibilities as described above;
salaries for its personnel; costs and expenses associated with establishing and
maintaining its sales organization and offices; communication expenses; travel
expenses, promotion expenses and any and all taxes, duties, tariffs or charges
which may be imposed on PSS. PSS, in its sole discretion, will determine how
PSS Sales Reps are compensated for the sale of Services.
	 
	 	8.13	 	PSS will designate an individual as the primary point of
contact to communicate with Athena personnel and to manage strategy and
logistics related to the arrangements described in this Agreement.




 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE SECRETARY OF THE
COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE
ACT; [***] DENOTES OMISSIONS.





	 	8.14	 	During the term of this Agreement and for a period of [***]
years thereafter, (a) PSS and its Affiliates shall not directly or
indirectly (including through any third party) sell, offer to sell or otherwise
provide Similar Services to any PSS/Athena Customer, and (b) PSS and its
Affiliates shall not directly or indirectly (including through any third party)
accept or otherwise receive any compensation for Similar Services sold to any
PSS/Athena Customer. Notwithstanding the foregoing sentence, if this Agreement
is terminated by PSS in accordance with Sections 5.1, 5.2, or 5.4 of this
Agreement (but in the case of Section 5.4, only with respect to a Change of
Control involving a PSS Competitor), then PSS shall be relieved thereafter of
the restrictions set forth in this Section 8.14.






			
	9	 	OBLIGATIONS OF ATHENA






	 	9.1	 	Athena will provide information to PSS on Service configuration,
price, delivery, scheduling, and implementation, sales orders, order status, and
invoices as reasonably requested by PSS with respect to Practices that PSS has
identified to Athena as prospects. Athena shall provide PSS, on an as needed
basis, with Athena’s sales pipeline report as in existence from time
to time; provided that PSS shall agree that if such information is shared
with any member of PSS’s field sales organization, it will notify Athena.
	 
	 	9.2	 	Athena, at its sole expense, will provide PSS with Service
marketing brochures, descriptions and other marketing collateral in quantities
and types as reasonably determined by Athena. Athena will provide PSS with
reasonable sales and technical information regarding the Services, at Athena’s
sole expense and in quantities to be established by Athena. All such items
furnished by Athena to PSS will remain the property of Athena, and to the extent
not distributed to prospects, will be returned to Athena or certified as
destroyed by PSS when Athena so requests, but in no event later than the
effective date of termination of this Agreement.
	 
	 	9.3	 	Athena will receive and consider in good faith all inquiries and
requests for proposals, terms and prices provided to it by PSS and Athena will
provide all practices deemed to be PSS Leads with proposal and contract forms
sufficient to provide to prospects proposals, quotes of price and terms. Athena
will receive and consider in good faith acceptance of all Orders submitted by
PSS. Notwithstanding the foregoing and without limitation, Athena may refuse to
accept an Order where Athena business records show that there is pre-existing
sales activity by another person or entity on behalf of Athena, or Athena in its
discretion determines that the sale is not advisable.






 











 





PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	9.4	 	If Athena accepts an Order, Athena will use its best efforts to meet the
delivery dates and terms therein and otherwise to fulfill its commitments
pursuant to that Order. Athena will assume all responsibility for the quality
and performance of the Services by it not caused by incorrect or incomplete
information provided to it or to the Practice by PSS. Athena will provide and
make available expert personnel and sales and technical assistance, in the
manner and at the time Athena considers appropriate under the circumstances, to
follow-up PSS’s promotion and sales activities and to fulfill accepted Orders.
Athena will be solely responsible for the design, development, supply,
production and performance of Services, and the performance of its personnel,
but in no event will PSS be entitled to nor have any right to claim any
compensation or loss for loss of clientele, sales, or commission or for any
other reason arising from Athena’s performance or failure to perform any
obligations under any accepted Order provided that Athena has acted in a good
faith and reasonable manner.
	 
	 	9.5	 	As reasonably requested by PSS, Athena from time to time will
arrange for briefings and demonstrations to PSS and to Practice prospects with
respect to the Services, as well as more advanced programs depending on the
circumstances, to familiarize PSS and prospects with the use and applications of
the Services and to facilitate PSS’s performance of its duties hereunder.
Athena and PSS will consult from time to time and review the nature and content
of such briefings and programs to determine whether they are accomplishing their
purposes and whether improvements can be made thereto. Such briefings and
programs may take place at Athena’s facilities or elsewhere as may be approved
by Athena. Athena will bear the cost of arranging and conducting such programs,
including the cost of its personnel, and PSS will likewise bear its own costs
and expenses in attending such programs.
	 
	 	9.6	 	Athena will provide a one-day training course to PSS with respect
to the athenaNet® Services without charge at Athena’s facilities two (2) times
per year for the term of this Agreement. Athena may combine this training with
customer or internal training, as it deems appropriate. All costs related to
travel and personal expenses for PSS employees will be the responsibility of
PSS.
	 
	 	9.7	 	Athena will be responsible for billing and collection of all fees
for Services from End-User customers.
	 
	 	9.8	 	Athena shall provide sales support during normal business hours
(8:30 AM to 5:00 PM EST/EDT, Monday through Friday), and shall designate a
primary customer service representative for PSS.




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	9.9	 	Athena will designate an individual as the primary point of
contact to communicate with PSS personnel and to manage strategy and logistics
related to the arrangements described in this Agreement.
	 
	 	9.10	 	During the term of this Agreement, Athena and its Affiliates
shall not directly or indirectly sell, offer to sell or otherwise provide any
Service to any PSS/Athena Customer except through PSS under this Agreement. In
addition, during the term of this Agreement and for a period of [***]
years thereafter, (a) Athena and its Affiliates shall not through any PSS
Competitor sell, offer to sell or otherwise provide any Service to any
PSS/Athena Customer, (b) Athena and its Affiliates shall not directly or
indirectly (including through any third party) sell, offer to sell or otherwise
provide any medical, surgical or pharmaceutical product to any PSS/Athena
Customer, and (c) Athena and its Affiliates shall not directly or indirectly
(including through any third party) accept or otherwise receive any compensation
for any medical, surgical or pharmaceutical product sold to any PSS/Athena
Customer. Notwithstanding the foregoing sentence, if this Agreement is
terminated by Athena in accordance with Sections 5.1, 5.2, or 5.4 of this
Agreement (but in the case of Section 5.4, only with respect to a Change of
Control involving an Athena Competitor), then Athena shall be relieved
thereafter of the restrictions set forth in this Section 9.10.





10 ADVERTISING, PROMOTIONS, TRADEMARKS AND COPYRIGHTED MATERIAL





	 	10.1	 	Athena hereby grants PSS a non-exclusive, royalty-free limited
right and license during the term of this Agreement to use, display, copy and
distribute only those Athena trademarks, service marks or trade names which are
associated with the Services and are contained in the marketing collateral and
other materials provided to PSS pursuant to this Agreement or otherwise
approved for use by PSS by Athena pursuant to this Agreement, solely for
purposes of and in connection with the advertisement, promotion and sale of the
Services. PSS may not alter any such marketing collateral or other materials
provided by Athena in any way, without the prior express written consent of
Athena. Except as expressly permitted herein, or as expressly agreed by the
Parties in writing, PSS may not affix or display any Athena mark to any
materials other than the marketing collateral and other materials provided by
Athena. Athena also grants PSS, during the term of this Agreement, a
non-exclusive royalty-free limited right and license to post or otherwise
display on the PSS Intranet, Extranet and Internet web sites only those Athena
trademarks, service marks or trade names, and/or other materials, as the
Parties mutually agree in writing from time to time, solely for





 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	 	 	purposes of and in connection with the advertisement, promotion and sale of
the Services; provided that for purposes of quality control, any such
posting and associated textual description, placement, or design is approved
in advance in writing by Athena. Any use of any Athena trademark, service
mark or trade name by PSS pursuant to this paragraph, and any goodwill
generated thereby, shall inure solely to the benefit of Athena, and nothing
herein shall convey to PSS any ownership right, title or interest in or to
any patent, trademark, service mark or trade name belonging to Athena.
	 
	 	10.2	 	During the term of this Agreement, Athena shall be entitled to
participate in, and PSS shall include Athena in, PSS’ CAN DO marketing program,
on terms at least as favorable as those provided to any other vendor in
Athena’s vendor category.
	 
	 	10.3	 	The Parties shall work together in good faith to mutually
develop other reasonable marketing and incentive compensation and benefit
programs.
	 
	 	10.4	 	PSS agrees that the commission rates to be paid by PSS to PSS
Sales Reps upon the sale of Services shall be at least as favorable as the
commission rates to be paid by PSS to PSS Sales Reps upon the sale of Similar
Services.





11 SALES, MARKETING AND SUPPORT OBLIGATIONS





	 	11.1	 	Athena shall maintain a commercially reasonable number of
sales/support representatives to provide marketing, demonstration and sales
support for PSS’s sales efforts under this Agreement. The sales
representatives shall be reasonably available to PSS as reasonably required in
support of PSS’s sales efforts with respect to the Services. Athena shall
replace terminated or transferred sales representatives within sixty (60) days
after such termination or transfer.
	 
	 	11.2	 	PSS and the PSS Sales Reps shall become knowledgeable about and
maintain detailed knowledge of the Services and shall arrange for those
responsible for training PSS Sales Reps to attend sales training meetings as
may periodically be scheduled by Athena. Travel and other incidental expenses
of PSS incurred for such training shall be borne by PSS. In addition, in
certain circumstances involving sales to potential customers which are not PSS
Leads, at the discretion of Athena, Athena may request a PSS Sales Rep to
provide account guidance, assistance with negotiations or to assist in
accelerating stalled sales. If such a request is made and such assistance is
given, then PSS shall be entitled to a “Deal Assist” commission with respect to
such sale, as defined and set forth on Exhibit A.




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	11.3	 	PSS acknowledges that all customers who purchase the Services
must enter into an Athenahealth Services Agreement before Services will be
provided by Athena and the Services will be available to such customers.
Neither PSS nor any of the PSS Sales Reps shall modify, supplement or otherwise
change the terms and conditions of the Athenahealth Services Agreement.





12 BOOKS AND RECORDS





	 	12.1	 	Each Party shall retain accurate books and records relating to
performance of and compliance under this Agreement for a minimum of two (2)
years after their creation. Each Party shall have the right to inspect such
books and records relating to the Parties’ relationship and business over the
two (2) year period, no more frequently than twice each calendar year. The
following terms and conditions shall apply with respect to each such audit:
	 
	 	12.2	 	The audited Party shall designate a central contact point and
coordinator for the audit;
	 
	 	12.3	 	The auditing Party shall provide the audited Party with at
least ninety (90) days prior advance written notice of the requested audit, and
shall promptly notify the audited Party of any regulatory or governmental
agency requested audit;
	 
	 	12.4	 	The audited Party shall have the right to notify the auditing
Party of annual “blackout periods” during which times, due to other demands on
the audited Party’s internal resources, the audited Party shall not be
obligated to prepare for or permit the requested audit, or any other audit that
is not legally mandated to be conducted within a particular period of time;
	 
	 	12.5	 	The auditing Party shall work and coordinate in good faith with
the audited Party to establish a reasonable audit sampling approach to minimize
the disruption to the audited Party’s operations; and
	 
	 	12.6	 	The auditing Party shall bear the costs for such audit;
provided, however, that if an independent auditor determines during the audit
that a discrepancy exists in the audited company’s books and records which
resulted in a payment error in any month of fifteen percent (15%) or more, then
the audited Party shall reimburse the auditing Party for all reasonable
expenses incurred by the auditing Party in conducting any such audit.





13 REPRESENTATIONS AND WARRANTIES





	 	13.1	 	Both Parties, represent, warrant and covenant to the other that:




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	13.1.1.	 	They are and will continue to be a duly formed and validly existing entity
in good standing under the laws of the state of its organization.
	 
	 	13.1.2.	 	The execution, delivery and performance under this Agreement, and the
transactions and actions contemplated hereunder, have been duly authorized by
all necessary actions by each Party. This Agreement, when duly executed and
delivered, constitutes a valid, legal and binding obligation of both Parties
enforceable in accordance with its terms.
	 
	 	13.1.3.	 	The execution, consummation of the transactions contemplated by, and/or
compliance with the terms and provisions of this Agreement, will not conflict
with, result in a breach of, or constitute a default under any of the terms,
conditions or provisions of either Party’s constituent documents or any
agreement, license or other contract or instrument to which either Party is a
party or by which either Party may be bound or affected or to which either
Party is subject, or any law, regulation, order, writ, injunction or decree of
any court or agency or regulatory body.
	 
	 	13.1.4.	 	They will not publish or cause to be published any statement, or encourage
or approve any advertising or practice, which might mislead or deceive any
parties or might be detrimental to the good name, marks, good will or
reputation of either Party.
	 
	 	13.1.5.	 	They will conduct business in a manner that reflects favorably at all times
on the other Party and their reputation; not engage in deceptive, misleading,
or unethical practices; make no false or misleading representations with regard
to the other Party; nor publish or employ any misleading or deceptive
advertising material. Without limiting the generality of the foregoing, the
Parties agree to be bound by the provisions set forth in Exhibit D
hereto, which is hereby incorporated herein by reference.
	 
	 	13.2	 	Athena represents and warrants to PSS that:
	 
	 	13.2.1.	 	Athena has good and marketable title to, or has otherwise adequate rights
in, all software and systems used in the delivery of the Services.
	 
	 	13.2.2.	 	To the best of Athena’s knowledge, the use of the Services by any existing
or potential customer of PSS does not and will not infringe any intellectual
property right held by any third party, provided




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	 	 	that such customer complies with all of the terms, conditions, and
restrictions on use contained within such customer’s Athenahealth
Services Agreement.
	 
	 	13.2.3.	 	Except as listed in Exhibit C to this Agreement, to the best of
Athena’s knowledge, there are no threatened or pending claims, disputes,
actions or suits involving Athena or any of its Affiliates that (i) relate to
any software or system used in the delivery of the Services and (ii) allege
infringement of any intellectual property right held by any third party.





14 FORCE MAJEURE



          No Party to this Agreement shall be liable for failure or delay of performance of any of its
obligations hereunder if such failure or delay is due to causes beyond its reasonable control
including, without limitation, natural disasters, fires, earthquake or storm, strikes, failures of
public utilities or common carriers, acts of war or intervention, acts, restraints or regulations
of any governmental authority, including compliance with any order of any governmental authority;
provided that any such delay or failure shall be remedied by such Party as soon as possible after
removal of the cause of such delay or failure. A Party suffering such delay or failure or which
expects to suffer such delay or failure shall promptly notify the other Party in writing of the
cause and expected duration of such delay or failure. In the event a delay or failure lasts or is
expected to last more than sixty (60) days, the other Party shall have the option to terminate this
Agreement upon written notice.



15 CONFIDENTIALITY





	 	15.1	 	Return of Confidential Information. Each Party (the
“Receiving Party”) shall return to the other all Confidential Information (as
defined below) received from the other Party (the “Disclosing Party”), along
with all copies thereof, immediately upon the termination of this Agreement.
	 
	 	15.2	 	Remedies. Each Party shall be liable to the other for
damages caused by any breach of this Section 15 or by any unauthorized
disclosure or use of the other’s Confidential Information by such Party or
third parties to whom unauthorized disclosure was made. In addition to any
other rights or remedies which may be available to it, each Party shall be
entitled to seek appropriate injunctive relief or specific performance to
prevent unauthorized use or disclosure of Confidential Information. Each Party
acknowledges and agrees that the unauthorized use or disclosure of the other
Party’s Confidential Information will cause irreparable injury to the other
Party and that money damages will not provide adequate remedy to the other
Party.




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	15.3	 	Confidential Information. The business and technical
information developed or acquired by, or entrusted by a third party to, each
Party, including, but not limited to, customer lists, names, contact
information, addresses, telephone numbers, email addresses, Service designs,
manufacturing processes, Service pricing, pricing strategies and pricing
information, business plans, and all related trade secrets (“Confidential
Information”) are the exclusive property of such Party, are among such Party’s
valuable assets, and their value to that Party may be lost by their
unauthorized use or disclosure to persons or entities not related to such
Party. Neither Party shall, directly or indirectly, use the other Party’s
Confidential Information received hereunder (other than directly in connection
with its obligations hereunder) or disclose or disseminate it to any party or
entity during the term of this Agreement or at any time thereafter (subject to
the exceptions below), regardless of the reason for such expiration, without
the express written consent of the other Party. This obligation of
confidentiality shall not apply to any Confidential Information which (i) was
properly and lawfully known to the Receiving Party at the time of receipt
without any misconduct on the Receiving Party’s part; (ii) was in the public
domain at the time of receipt; (iii) becomes public through no wrongful act of
the Party obligated to keep it confidential; or (iv) is properly received by
the Receiving Party from a third party who did not thereby violate any
confidentiality obligations to the Disclosing Party.
	 
	 	15.4	 	Cooperation. The Receiving Party may disclose
Confidential Information in response to a request for disclosure by a court or
other governmental authority, including a subpoena, court order, or
audit-related request by a taxing authority or other governmental authority, or
if so obligated under applicable laws or regulatory authority, provided that
the Receiving Party shall promptly notify the Disclosing Party and cooperate
with the Disclosing Party in seeking continued protection of the
confidentiality of such Confidential Information, including avoidance or
limitation of such disclosure, or disclosure under continued confidentiality
protection and restrictions.
	 
	 	15.5	 	Ownership of Intellectual Property. Nothing in this
Agreement shall grant or result in PSS acquiring any right, title or interest
in the Services or any proprietary information of Athena even if PSS or Athena
modifies, customizes or privately brands the Services. PSS shall take
appropriate steps by instruction, agreement or otherwise with its employees and
PSS Sales Reps to restrict and control the use of such information and Services
as required by this Agreement.





16 INDEMNIFICATION




 









 








PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	16.1	 	Athena shall, except as otherwise provided below, indemnify,
and hold PSS and its Affiliates (including their respective directors,
officers, employees, representatives and agents) harmless, and defend or settle
any claim made or any suit proceeding, including reasonable attorneys fees,
brought against PSS and its Affiliates (including their respective directors,
officers, employees, representatives and agents), subsidiaries, assigns,
subcontractors, and customers, arising out of or relating to (i) any
Athenahealth Services Agreement or any other agreement between Athena and its
customers, or (ii) an allegation that any Service (including any software,
system or part thereof), Athena trademarks, Athena trade names, Athena logos,
or materials provided by Athena, or any portion or use or sale of any of the
foregoing, infringes, misappropriates or violates a patent, copyright,
trademark, trade secret, or other intellectual property right of any third
party. PSS shall (a) promptly notify Athena in writing of any such claim, (b)
reasonably cooperate with Athena in connection with the defense of such claim,
and (c) give Athena the sole authority to defend or settle the claim (at
Athena’s expense). Athena shall pay all damages and costs finally awarded in
any such claim, suit or proceeding against PSS or any of its Affiliates
(including their respective directors, officers, employees, representatives and
agents), or any settlement amount required to settle the claim. In the event
the Service is held to infringe and the use or sale of said Service is
enjoined, Athena shall have the option at its own expense, to procure for PSS
the right to continue selling said Service, or replace same with a
non-infringing Service, or modify same so it becomes non-infringing.
Notwithstanding anything to the contrary above, Athena shall have no obligation
under this paragraph with respect to any claims to the extent arising (i) as a
result of any breach by PSS of the terms of this Agreement or (ii) in
connection with the sale of a Bolt-On by PSS or use by any customer of a
Bolt-On sold by PSS, either alone or in combination with the Services.
	 
	 	16.2	 	Each Party (the “Indemnifying Party”) shall indemnify, defend
and hold the other Party and its Affiliates (the “Indemnified Party”) harmless
from and against any and all liabilities, claims, demands, damages, costs and
expenses or money judgments (including reasonable attorneys fees) asserted
against, incurred by or rendered against any of them arising out of or relating
to (a) third party claims or actions which arise out of the Indemnifying
Party’s breach of any of its representations, warranties, covenants or other
obligations set forth herein, (b) a defect due to defective design, parts,
packaging, labeling, advertising materials, or faulty workmanship of, or
failure to warn with respect to services provided by the Indemnifying Party,
except to the extent that such damage arise out of the Indemnified Party’s
negligence or breach of this Agreement (as set forth in herein), and (c) third
party claims or actions arising from the





 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	 	 	Indemnifying Party’s negligence, breach of this Agreement or other acts or
omissions.
	 
	 	16.3	 	The indemnification obligations under this Agreement shall
survive termination or expiration of this Agreement for any reason.
	 
	 	16.4	 	Except as explicitly set forth in this Agreement: (a) all
warranties and obligations by Athena with respect to the nature, extent,
content, timing, completeness, sufficiency, accuracy and quality of the
Services, including but not limited to all data in connection with such
Services, are contained exclusively in each agreement of Athena with its
customers and are owed only to its customers and not to PSS; and, (b) without
limiting the foregoing, EXCEPT FOR ATHENA’S REPRESENTATIONS, WARRANTIES,
COVENANTS AND OBLIGATIONS UNDER THIS AGREEMENT, ATHENA UNDERTAKES IN THIS
AGREEMENT NO OTHER WARRANTY, REPRESENTATION OR CONTRACTUAL OR OTHER OBLIGATION
WITH RESPECT TO THE SERVICES AND EXPLICITLY DISCLAIMS ANY SUCH WARRANTY,
REPRESENTATION OR OBLIGATION UNDER OR WITH RESPECT TO THIS AGREEMENT, INCLUDING
BUT NOT LIMITED TO ANY IMPLIED WARRANTY OR WARRANTY OF MERCHANTABILITY, TITLE,
DESIGN, OPERATION OR FITNESS FOR ANY PURPOSE.





17 LIMITATION OF LIABILITY



          EXCLUDING CLAIMS FOR INDEMNIFICATION AND A PARTY’S LIABILITY ARISING FROM BREACHES OF
CONFIDENTIALITY, GROSS NEGLIGENCE, INTENTIONAL OR WILLFUL MISCONDUCT, AND FAILURE TO COMPLY WITH
APPLICABLE LAWS AND REGULATIONS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR
ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER
INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONJUNCTION WITH OR ARISING OUT OF THE PERFORMANCE
UNDER THIS AGREEMENT OR THE USE OR PERFORMANCE OF SERVICES, PRODUCTS AND SUPPORT SERVICES EVEN IF
THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.



18 INSURANCE



Both Parties shall obtain, pay for and maintain the following insurance coverages:




	 	18.1	 	Comprehensive Commercial General Liability insurance, including
product liability insurance against claims regarding the Services and its
activities contemplated by this Agreement, in an amount not less than one
million dollars ($1,000,000) Combined Single Limit bodily Injury &





 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	 	 	Property Damage Each Occurrence / two million dollars ($2,000,000)
Aggregate, independent contractors, and personal and advertising injury
coverages.
	 
	 	18.2	 	Workers’ Compensation insurance with limits to conform with the
greater of the amount required by applicable law or one million dollars
($1,000,000) each accident, including occupational disease coverage.
	 
	 	18.3	 	Comprehensive Automobile Liability insurance with limits not
less than one million dollars ($1,000,000) each occurrence combined single
limit of liability for bodily injury, death, and property damage, including
owned and non-owned and hired automobile coverages, as applicable.




          Each Party shall maintain such insurance during the term of this Agreement and thereafter for
so long as it maintains insurance for itself covering such activities. Coverage shall be written
on a Standard ISO Occurrence Form CG00010196 or its equivalent. Upon execution of this Agreement,
and thereafter upon request from the other Party, each Party will provide certificates and renewal
certificates of insurance reflecting such policies and coverages as required above.



19 NON-SOLICITATION



          Throughout the term of this Agreement and for a period of one (1) year thereafter, neither
Athena nor PSS will, directly or indirectly, induce or attempt to induce any employee of the other
to terminate his or her employment with the other or hire or offer to hire away or attempt to hire
away any employee of the other.



20 GENERAL





	 	20.1	 	Entire Agreement. This Agreement constitutes the
entire Agreement between the Parties concerning the subject matter hereof and
supersedes any prior written or verbal agreements or understandings in
connection herewith. Upon the execution and delivery of this Agreement, the
First Amended Agreement shall be amended in its entirety and restated herein,
and all provisions of, rights granted and covenants made in the First Amended
Agreement shall be superseded in their entirety and shall have no further force
or effect. No addendum, amendment, waiver or modification hereto or hereunder
shall be valid unless specifically made in writing and signed by an authorized
signatory of each of the Parties hereto. No form, invoice, order, receipt or
other document provided by either Party shall operate to supersede, modify or
amend any provisions of this Agreement, unless the document expressly states
that it modifies or amends this Agreement and is signed by an authorized
representative of both Parties. Neither Party’s failure to exercise any of its
rights under this Agreement will constitute or be deemed a waiver or forfeiture
of those





 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 		 	rights. All Exhibits attached to the Agreement shall be deemed a part of
this Agreement and incorporated herein. Terms that are defined in this
Agreement, and used in any Exhibit, have the same meaning in the Exhibit as
in this Agreement. The provisions of an Exhibit shall prevail over any
conflicting provisions of the body of this Agreement.
	 
	 	20.2	 	Publicity. During the term of this Agreement and at
all times after the termination or expiration of this Agreement for any reason,
neither Party shall make any media release or other public announcement
relating to or referring to this Agreement without the other Party’s prior
written consent. Notwithstanding the foregoing, to the extent required by the
Securities and Exchange Commission or other agency, either Party may make
public disclosures about this Agreement and the terms thereof. Either Party
will provide a copy of any required public disclosures associated with this
Agreement at least two (2) business days prior to release to the public.
Athena shall acquire no right to use, and shall not use, without PSS’s prior
written consent, the terms or existence of this Agreement, the names, trade
names, trademarks, service marks, artwork, designs, or copyrighted materials,
of PSS, its related or subsidiary companies, parent, employees, directors,
shareholders, assigns, successors or licensees: (a) in any advertising,
publicity, press release, client list, presentation or promotion; (b) to
express or to imply any endorsement of Athena or Athena’s products; or (c) in
any manner other than expressly in accordance with this Agreement.
	 
	 	20.3	 	Notices. All notices and other communications required
or permitted hereunder shall be in writing and shall be mailed by registered or
certified mail or delivered either by hand or by messenger, or sent via
confirmed fax, addressed to the address of the applicable Party set forth at
the foot of this Agreement, or to such other address as such Party may indicate
from time to time in accordance with this Section 20.3. Any notice or other
communication so addressed and mailed by registered or certified mail (in each
case, with return receipt requested) shall be deemed to be delivered and given
three (3) days after deposit in the United States mail, postage prepaid. Any
notice or other communication so addressed and delivered by hand, by messenger
or by confirmed fax shall be deemed to be given when actually received by the
addressee.
	 
	 	20.4	 	Venue and Jurisdiction. The laws of the State of
Florida will govern any disputes arising in connection with this Agreement.
Athena and PSS hereby consent to the exclusive jurisdiction and venue of the
Florida federal courts, and Florida state courts if a federal court denies
jurisdiction.




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	20.5	 	WAIVER OF JURY TRIAL. EACH PARTY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER
THIS AGREEMENT AND AGREES THAT ANY SUCH ACTION OR PROCEEDING WILL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
	 
	 	20.6	 	Attorneys’ Fees. In any action to enforce a provision
of this Agreement, the prevailing Party shall be entitled to recover from the
non-prevailing Party reasonable attorneys’ fees and other costs incurred in
such action, in addition to any other relief available at law.
	 
	 	20.7	 	Severability. If for any reason any provision of this
Agreement shall be deemed by a court of competent jurisdiction to be legally
invalid or unenforceable, the validity of the remainder of the Agreement shall
not be affected and the offending provision shall be deemed modified to the
minimum extent necessary to make it consistent with applicable law, and, in its
modified form, the provision shall then be enforceable and enforced.
	 
	 	20.8	 	Captions. The section headings and captions of this
Agreement are for convenience and reference only and in no way define, limit or
describe the scope or intent of this Agreement nor substantively affect it in
any way.
	 
	 	20.9	 	Survival. Any expiration or termination of this
Agreement shall be without prejudice to the survival of any provision expressly
extending beyond the term of this Agreement or necessary to interpret the
rights and obligations of the Parties in connection with the expiration or
termination of this Agreement. Without limiting the generality of the
foregoing, the following provisions shall survive the expiration or termination
of this Agreement: Section 4.2 (previously accepted Orders), Section 5.6
(certain commission payment matters), Sections 7.1 and 7.5 (payment of
commissions), Section 8.14 (restrictive covenants by PSS), Section 9.10
(restrictive covenants by Athena), Article 12 (Books and Records), Article 15
(Confidentiality), Article 16 (Indemnification), Article 17 (Limitation of
Liability), Article 19 (Non-Solicitation), Article 20 (General) and Exhibit
A.
	 
	 	20.10	 	Third Party Beneficiaries. This Agreement is solely
for the benefit of the Parties and their successors and permitted assigns, and
does not confer any rights or remedies on any other person or entity.
	 
	 	20.11	 	Binding Effect. This Agreement shall be binding upon
and shall inure to the benefit of the respective Parties hereto, their
respective successors-in-interest, legal representatives, heirs and assigns.




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	20.12	 	Further Assurances. Each Party hereto agrees to take,
or cause to be taken, all such further or other actions as shall reasonably be
necessary to make effective, to consummate and to perform the undertakings and
obligations contemplated by this Agreement.
	 
	 	20.13	 	Cumulative Remedies. Except as otherwise expressly
provided for in this Agreement, the rights and remedies provided in this
Agreement and all other rights and remedies available to either Party at law or
in equity are, to the extent permitted by law, cumulative and not exclusive of
any other right or remedy now or hereafter available at law or in equity.
Neither the asserting of any right nor the employing of any remedy shall
preclude the concurrent assertion of any other right or employment of any other
remedy.
	 
	 	20.14	 	Counterparts. This Agreement may be executed in one
or more counterparts, all of which together shall be considered one and the
same Agreement.
	 
	 	20.15	 	Commissions Earned Under the First Amended Agreement.
Athena shall continue to pay to PSS commissions in accordance with Exhibit A of
the First Amended Agreement for all sales of the Services to PSS/Athena
Customers made prior to the Effective Date of this Agreement. Notwithstanding
the immediately preceding sentence, (a) the obligation to pay any such
commissions may be earlier terminated only as expressly permitted in Section
5.6 and (b) no commission for the sale of Services shall be due or payable to
PSS with respect to Services provided for any periods subsequent to the fifth
anniversary of the Go-Live Date (as such term is defined in Exhibit A)
of the Initial Sale, except for any commissions owed and remaining unpaid to
PSS prior to such fifth anniversary date.





[THE NEXT PAGE IS THE SIGNATURE PAGE]




 









 








PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




     IN WITNESS WHEREOF, the Parties have executed this Agreement to be executed by their duly
authorized representatives.



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 

	athenahealth, Inc.,	 	 	 	WORLDMED SHARED SERVICES, INC.
	a Delaware corporation	 	 	 	d/b/a PSS WORLD MEDICAL SHARED
	 	 	 	 	 	 	SERVICES, INC.,
	By:	 	/s/ Timothy M. Adams	 	 	 	a Florida corporation




	 	 	Printed: Timothy M. Adams	 	 	 	By:	 	/s/ John Sasen	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	Its: CFO	 	 	 	 	 	Printed: John Sasen
	 
	 	 	 	 	 	 	 	Its: EVP / CMO	 	 	 	 	 	 	 	 	 	 	 	 






 









 






PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT A




Commissions



1. Commission Rates. If Athena enters an Initial Sale by countersigning a PSS Order for
provision of Revenue Cycle Services, Clinical Cycle Services and/or Patient Cycle Services with a
PSS Lead within the periods specified in Section 7.3 of the Agreement, then Athena will pay a
commission to PSS at the rates set forth below:




Commission Rates:




	 	 	 	 	 
	 	 	Initial Commission	 	Subsequent Commission
	 	 	Payment	 	Payments
	PSS Commission
Payment 
(calculated
as a percentage of 

Estimated Contract
Value of 
a PSS Order
	 	[***]%
(based on
[***]%
 of
each PSS Order’s

Estimated Contract

Value)
	 	[***]%






2. Accrual of Commissions. The commissions shall accrue as follows with respect to each
PSS Order and shall be payable pursuant to Section 7 of the Agreement:





	 	a.	 	“Initial Commission Payment”:






	 	•	 	In the month following the date on which Athena countersigns a PSS Order for
provision of Services to a PSS/Athena Customer, Athena will pay [***]% of
[***]% of the Year 1 Estimated Contract Value for such PSS Order as
calculated in the applicable Athenahealth Services Agreement. 15 months after the
“Go-Live Date” (as such term is defined in the applicable Athenahealth Services
Agreement), Athena will compare the Year 1 Estimated Contract Value to the actual
Revenue received with respect to the Services included in the Initial Sale during the
12 month period preceding such 15 month anniversary of the Go-Live Date. If the actual
Revenue during such period was lower than the [***]% of the Year 1 Estimated
Contract Value, then Athena shall reduce the next commission payment due to PSS by such
difference multiplied by [***]%. If the actual Revenue during such period
was higher than [***]% of the Year 1 Estimated Contract Value, then Athena
shall increase the next commission payment due to PSS by such difference multiplied by
[***]%.






	 	b.	 	Subsequent Commission Payments:






	 	•	 	Subsequent commission payments (each, a “Subsequent Commission Payment”) with
respect to a PSS Order shall be paid monthly for a total of four (4) years, commencing
on the PSS Order’s Go-Live Date. The amount of each Subsequent Commission Payment will
be [***]% of the actual monthly Revenue attributable to such PSS Order
received by Athena.




 









 











PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	 	 	For purposes of this Exhibit A, (i) “Revenue” shall mean net collections that have
been paid by a PSS/Athena Customer to Athena in consideration for the provision of Services
under a given PSS Order; and (ii) “Year 1” means the 12 month period beginning on a
PSS/Athena Customer’s Go-Live Date.
	 
	 	 	 	For the avoidance of doubt, it is understood and agreed that no Subsequent Commission
Payment shall be payable to PSS under this Exhibit A or the Agreement with respect
to Services provided pursuant to a PSS Order after the fourth anniversary of the Go-Live
Date of the Initial Sale.





3. Deal Assist. “Deal Assist” Commissions shall be equal to [***]% of
[***]% of the Year 1 Estimated Contract Value of any executed contract for Athena’s
services that is not a PSS Order but with respect to which PSS has rendered assistance as described
in Section 11.2 of the Agreement. Such amount shall be paid in the month following the Go-Live
Date of such PSS Order. 15 months after the Go-Live Date of such PSS/Athena Customer, Athena will
compare the Year 1 Estimated Contract Value to the Actual Revenue received during the 12 month
period preceding such 15 month anniversary of the Go-Live Date. If the actual Revenue during such
period was lower than [***]% of the Year 1 Estimated Contract Value, then Athena shall
reduce the next overall commission payment (including commission payments made under Sections 2 and
3 of this Exhibit A) due to PSS by such difference multiplied by [***]%. If the
actual Revenue during such period was higher than [***]% of the Year 1 Estimated Contract
Value, then Athena shall increase the next overall commission payment due to PSS by such difference
multiplied by [***]%.




4. Credit. If a PSS/Athena Customer’s Athenahealth Services Agreement is terminated prior
to the applicable “Go-Live Date”, then Athena will credit the amount of any Initial Commission
Payment made to PSS with respect to such PSS/Athena Customer against the next payable commissions
payable to PSS under the Agreement, until the amount of the Initial Commission Payment for such
terminated PSS Order is offset in full.




5. Sale of Services after the Initial Sale. For each sale of a Service following the
Initial Sale to the PSS/Athena Customer, Athena shall pay to PSS, and PSS will be entitled to
receive from Athena, an Initial Commission Payment with respect to each additional Service,
calculated in accordance with the formula set forth in Section 2(a) of this Exhibit A,
replacing the reference to “Initial Sale” in the second sentence thereof with “sale of additional
Services”. Subsequent Commission Payments will also be payable with respect to each such Service
and shall be calculated in accordance with Section 2(b) of this Exhibit A. Notwithstanding
the immediately preceding sentence, Subsequent Commission Payments for such additional Services
sold shall be due and payable for a maximum period of four (4) years commencing on the Go-Live Date
of the Initial Sale.




 









 








PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT B-1




AthenaCollector Services Agreement



[See attached]



 









 





PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT B-2




athenaClinicals Services Agreement



[See attached]



 









 





PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT B-3




AthenaCollector Services Agreement



[See attached]



 









 





PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT C




Litigation



On March 2, 2010, a complaint was filed by Prompt Medical Systems, L.P. naming Athena and
several other defendants in a patent infringement case (Prompt Medical Systems, L.P. v.
Allscripts Misys Healthcare Solutions, Inc. et al, Civil Action No. 6:2010cv00071, United
States District Court for the Eastern District of Texas). The complaint alleges that Athena
has infringed on a patent with a listed issue date in 1996 entitled “Method for Computing
Current Procedural Terminology Codes from Physician Generated Documentation” and seeks an
injunction enjoining infringement, damages, and pre- and post-judgment costs and interest.
Athena and two other defendants filed a motion to dismiss the complaint; however, the court
has not ruled on this motion.




 









 








PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT D




Certain Agreements of the Parties




	•	 	Neither Party will take any action which would have the effect of causing the other
to be in violation of any laws, decrees, rules, or regulations.
	 
	•	 	Each Party covenants and warrants to the other on a continuing basis that any payments
or remuneration to it under this Agreement are for it’s own account, and that except as
appropriate to carry out its duties as set forth herein in a legal manner, it has no
obligation to and will not, directly or indirectly, give, offer, pay, promise to pay, or
authorize the payment of money or thing of value to any other person in connection with any
transaction for which any payment or remuneration is to be made under this Agreement.
	 
	•	 	Each Party represents and warrants to the other on a continuing basis throughout the
term that this Agreement is in effect that (1) neither it nor any of its agents is a
provider, physician, or supplier as those terms are defined in the Social Security Act as
amended from time to time, or any regulations promulgated thereunder; and, (2) neither it
nor any of its agents is authorized to nor will they refer, steer, allocate, direct,
solicit or otherwise arrange for any patient visit, health care, medical item or medical
service with respect to any such provider, physician or supplier that is a customer of
Athena or arrange for or make any request for such visit, care, item or service or any
purchase order or lease with respect to such visit, care, item or service.
	 
	•	 	Each Party represents and warrants to the other that neither it nor any of its agents:
has been excluded, disqualified or debarred from participating in any government program;
is under sanction or conviction for any Medicaid or Medicare program offense; is the
subject of any investigative or criminal, civil, administrative or qui tam proceeding with
respect to any allegation of such an offense; or, is party to any settlement or corporate
integrity agreement with respect to any allegation of such an offense. If at any time
during the term that this Agreement is in effect, the status of the Party or any of its
agents should change from the above with respect to exclusion, disqualification, debarment,
sanction, conviction, proceeding, settlement or agreement, the Party will immediately
notify the other in writing of such change.
	 
	•	 	Notwithstanding any provision to the contrary in this Agreement, no payment or
remuneration under this Agreement will accrue, be paid or be accepted on account of sale of
Athena’s Services to any person or entity:






	 	•	 	That charges, bills or seeks reimbursement or payment on a cost basis from any third
party payment program or payor for all or any part of such services;
	 
	 	•	 	With which the PSS or any of its agents, employees, owners or principals or any of
their family members, directly or indirectly has any relationship other than an
arms-length relationship as a sales agent or sales representative for one or more
vendors to the person or entity. Without limiting the foregoing, the following
relationships on the part of PSS will prevent such payment or remuneration:






	 	•	 	Operation, management or control,
	 
	 	•	 	Engagement as an administrator, consultant, purchasing agent, employee,
officer, director, trustee, member of the governing body, or attorney-in-fact,
	 
	 	•	 	Management of substantial activities or exercise of substantial commercial
influence over business or personal affairs,





 









 










PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.





	 	•	 	A fiduciary duty or duty of fidelity in connection with general business
affairs or in connection with purchase of services from Athena, or
	 
	 	•	 	Permission or ability exercise purchasing discretion; or,






	 	•	 	If the offer, payment, receipt or solicitation of compensation to PSS under this
Agreement with respect to the person or entity is in violation of any law or of any
legal duty to the person or entity.






	•	 	The Parties will each exercise reasonable diligence to identify and avoid proposing or
accepting Practices as PSS Leads any person or entity for which payment will not be made
under this Agreement, and the Parties will reasonably cooperate to identify such person and
entities in advance of any payment. If either Party learns that payment or remuneration
has been made not as provided in this Agreement, it will promptly notify the other in
writing, and the Parties will unwind the compensation and will cooperate in such other
steps as are proper and appropriate to remedy any such situation.
	 
	•	 	Neither Party will claim payment in any form, directly or indirectly, from any third
party payment program or payor for all or any part of any activity or for the cost of all
or any part of any activity covered under this Agreement, nor will either Party shift the
financial burden of this Agreement to the extent that any cost reimbursement is claimed
from any third party payment program or payor by either of them or to the extent that
either Party believes that any cost reimbursement is claimed or may be claimed by any third
party from any third party payment program or payor.
	 
	•	 	PSS will not solicit, receive, offer or pay anything of value, directly or indirectly,
to or from any person or entity in connection with entry by such person or entity into any
contract with Athena, continuation of any contract with Athena, or acceptance of services
or items from Athena; and PSS will not condition, withhold, or threaten to withhold
anything of value to any person or entity in connection with entry or consideration of
entry by such person or entity into any contract with Athena, continuation of any contract
with Athena or acceptance of services or items from Athena.
	 
	•	 	PSS will make such disclosures to Practices and obtain such consents, authorizations and
agreements (including but not limited to any business associate agreements as necessary)
with respect to Practices as are required by law in light of its relationships with those
Practices and its activities and obligations and rights in connection with this Agreement.





No Franchise or Distributorship: The Parties agree that nothing in this Agreement or
PSS’ or Athena’s performance under it will constitute PSS a franchisee or participant in any
business opportunity of or with Athena under any applicable federal or state law.



 









 





PORTIONS OF THIS EXHIBIT WERE OMITTED AND HAVE BEEN FILED SEPARATELY WITH THE
SECRETARY OF THE COMMISSION PURSUANT TO AN APPICATION FOR CONFIDENTIAL
TREATMENT UNDER RULE 24b-2 OF THE EXCHANGE ACT; [***] DENOTES OMISSIONS.




EXHIBIT E


Device Integration




Athena intends to develop and offer to PSS for sale to PSS Leads an interface between Clinical
Cycle Services and certain of the diagnostic devices of the manufacturers set forth below, as of
each of the respective target dates set forth below:





	1.	 	[***]:
	 
	2.	 	[***]:
	 
	3.	 	[***]:





Athena’s development of each of the above interfaces shall be subject to the following terms and
conditions:





	 	a.	 	no change to the interface protocol of the device or the manufacturer from that in
existence on the Effective Date;
	 
	 	b.	 	timely provision by the manufacturer of any necessary technical cooperation;
	 
	 	c.	 	timely provision by the manufacturer of any necessary access for Athena’s engineers to
the device;
	 
	 	d.	 	cooperation of the manufacturer with any assurance testing of the interface;
	 
	 	e.	 	the absence of any third party software, system or other element that requires
interface with the Clinical Cycle Services in connection with the development of the
interface to the device; and
	 
	 	f.	 	no necessity for any regulatory approval for the interface.