Exhibit 10.1
INDEMNIFICATION AGREEMENT
This Indemnification Agreement
(“Agreement”), dated August 23, 2007, is entered
into by and between MedQuist Inc. (the “Company”), and
[see schedule below] of the Company
(“Indemnitee”).
WHEREAS, the Company desires to
attract and retain the services of highly qualified individuals,
such as Indemnitee, to serve the Company and its subsidiaries as
directors, officers and in other capacities;
WHEREAS, the Company and Indemnitee
recognize the continued difficulty in obtaining liability insurance
for the directors, officers, employees and other agents of the
Company, the significant increases in the cost of such insurance
and the general reductions and limitations in the coverage of such
insurance;
WHEREAS, the Company and the
Indemnitee further recognize the substantial increase in corporate
litigation in general, subjecting directors, officers, employees
and other agents serving corporations to expensive litigation risks
at the same time as the availability and coverage of liability
insurance has been severely limited;
WHEREAS, the Company has adopted
bylaws (the “Bylaws”) providing for the indemnification
of directors, officers, employees and other agents of the Company,
including persons serving at the request of the Company in such
capacities with other corporations or enterprises, as authorized by
New Jersey law;
WHEREAS, the Bylaws and New Jersey
law, by their non-exclusive nature, permit agreements between the
Company and its directors, officers, employees and other agents
with respect to indemnification of such persons; and
WHEREAS, in order to induce
Indemnitee to continue to provide services to the Company as a
director, officer or in another capacity or capacities, the Company
wishes to provide for the indemnification of, and the advancement
of expenses to, Indemnitee to the maximum extent now or hereafter
permitted by law;
NOW, THEREFORE, the Company and
Indemnitee hereby agree as follows.
1.
Indemnification .
(a) Third Party
Proceedings . The Company shall indemnify Indemnitee if
Indemnitee is or was a party or is threatened to be made a party to
any threatened, pending or completed action, suit, proceeding or
any arbitration or other alternative dispute resolution mechanism,
whether civil, criminal, administrative or investigative (other
than an action by or in the right of the Company) by reason of the
fact that Indemnitee is or was a director, officer, employee or
agent of the Company, or any subsidiary of the Company, or by
reason of the fact that Indemnitee is or was serving at the request
of the Company as a director, officer, employee
or agent
of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys’ fees),
judgments, fines and amounts paid in settlement (if such settlement
is approved in advance by the Company, which approval shall not be
unreasonably withheld) actually and reasonably incurred by
Indemnitee in connection with such action, suit or proceeding if
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, had no reasonable cause to believe Indemnitee’s
conduct was unlawful. The termination of any action, suit 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 Indemnitee did not act in good faith and
in a manner which Indemnitee reasonably believed to be in or not
opposed to the best interests of the Company, and, with respect to
any criminal action or proceeding, had reasonable cause to believe
that Indemnitee’s conduct was unlawful.
(b) Proceedings By or in the
Right of the Company . The Company shall indemnify Indemnitee
if Indemnitee was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the
right of the Company or any subsidiary of the Company to procure a
judgment in its favor by reason of the fact that Indemnitee is or
was a director, officer, employee or agent of the Company, or any
subsidiary of the Company, or by reason of the fact that Indemnitee
is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against expenses
(including attorneys’ fees) and, to the fullest extent
permitted by law, amounts paid in settlement, actually and
reasonably incurred by Indemnitee in connection with the defense or
settlement of such action or suit if 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, except that no
indemnification shall be made in respect of 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 New Jersey
court or the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case,
Indemnitee is fairly and reasonably entitled to indemnity for such
expenses which the New Jersey court or such other court shall deem
proper.
(c) Mandatory Payment of
Expenses . To the extent that Indemnitee has been successful on
the merits or otherwise in defense of any action, suit or
proceeding referred to in Sections 1(a) or (b) hereof, or in
defense of any claim, issue or matter therein, Indemnitee shall be
indemnified against expenses (including attorneys’ fees)
actually and reasonably incurred by Indemnitee in connection
therewith.
2.
Advancement of Expenses; Notice; 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, suit or
proceeding referenced in Section 1(a) or (b) hereof (but not
amounts actually paid in settlement of any such action, suit or
proceeding). Indemnitee hereby undertakes to repay such amounts
advanced only if, and to the extent that, it shall ultimately be
determined that Indemnitee is not entitled to be indemnified by the
Company as authorized hereby.
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(b) Notice of
Indemnification Claim; Cooperation by Indemnitee . Indemnitee
shall, as a condition precedent to his or her right to be
indemnified under this Agreement, 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 General
Counsel of the Company at the address indicated on the signature
page of this Agreement (or such other address as the Company shall
designate in writing to Indemnitee). Notice shall be deemed
received as provided in Section 13 hereof. Indemnitee also
shall provide the Company such information and cooperation as the
Company may reasonably require and as shall be within
Indemnitee’s power.
(c) Indemnification
Procedure . Any indemnification and/or advances provided for in
Sections 1 and 2 hereof shall be made no later than thirty
(30) 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 thirty (30) days after a written request for
payment thereof has first been received by the Company, Indemnitee
may at any time thereafter bring an action against the Company to
recover the unpaid amount of the claim. It shall be a defense to
any such action brought by Indemnitee (other than an action brought
to enforce a claim for expenses incurred in connection with any
action, suit 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. Notwithstanding the foregoing,
Indemnitee shall be entitled to receive advancements of expenses
pursuant to Section 2(a) hereof 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 intention of the parties
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 Directors, any
committee or other subgroup of the Board of Directors, independent
legal counsel, or its stockholders) 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 it Board of Directors, any committee or other
subgroup of the Board of Directors, independent legal counsel, or
its stockholders) 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.
(d) Notice to Insurers .
If, at the time of the receipt of a notice of a claim pursuant to
Section 2(b) hereof, the Company has director and officer liability
insurance in effect, the Company shall give prompt notice of the
commencement of such proceeding to the insurer in accordance with
the procedures set forth in the applicable policy. The Company
shall thereafter take all action it deems reasonably necessary or
advisable to cause such insurers to pay, on behalf of the
Indemnitee, all amounts payable as a result of such proceeding in
accordance with the terms of such policies.
(e) Selection of Counsel
. In the event the Company shall be obligated under Section 2(a)
hereof to pay the expenses of any proceeding against Indemnitee,
the Company shall be
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entitled
to assume the defense of such proceeding, with counsel approved by
Indemnitee (such approval not to be unreasonably withheld), upon
the delivery to Indemnitee of written notice of its election to do
so. 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 Indemnitee shall have
the right to employ his or her own counsel in any such proceeding
at Indemnitee’s own expense, and provided further that
Indemnitee shall have the right to employ his or her own counsel in
any such proceeding at the Comp
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