Exhibit 10.1
INDEMNIFICATION
AGREEMENT
THIS INDEMNIFICATION
AGREEMENT (the
“Agreement”) is entered into effective as of the
day of
,
2009, between EPIQ SYSTEMS, INC., a Missouri corporation (the
“Company”), and
(the “Indemnified Party”).
WHEREAS, to induce the Indemnified
Party to provide services or to continue to provide services to or
at the request of the Company, the Company wishes to provide in
this Agreement for the indemnification of, and the advancing of
expenses to, the Indemnified Party to the fullest extent (whether
partial or complete) permitted by Missouri law and as set forth in
this Agreement.
NOW, THEREFORE, in consideration of
the mutual covenants and agreements contained herein, and other
good and valuable consideration, the Company and the Indemnified
Party hereby agree as follows:
1.
Basic Indemnification
Arrangement.
1.1
Indemnity . If the Indemnified Party was, is or
becomes a party to or witness or other participant in, or is
threatened to be made a party to or witness or other participant
in, a Claim (as defined below and including but not limited to any
Claim related to the action styled Alaska Electrical Pension Fund
v. Tom W. Olofson, et al, Defendants, and Epiq Systems, Inc.,
Nominal Defendant) by reason of (or arising in whole or in part out
of) an Indemnifiable Event (as defined below), then the Company
shall indemnify the Indemnified Party to the fullest extent
permitted by Missouri law or the Company’s Articles of
Incorporation and Bylaws, as the same now exist or may hereafter be
amended (but only to the extent any such amendment permits the
Company to provide broader indemnification rights than the law or
the Articles of Incorporation and Bylaws permitted prior to such
amendment), as soon as practicable, but not later than 30 days
after written demand is presented to the Company, against any and
all Expenses (as defined below) of the Claim. If so requested
by the Indemnified Party, the Company shall advance (within five
business days after the request) any and all Expenses to the
Indemnified Party. The Indemnified Party agrees to repay all
Expenses advanced by the Company to the Indemnified Party if it is
determined in a Claim that the Indemnified Party is not entitled to
indemnification pursuant to this Agreement or otherwise.
Repayment of advanced Expenses will be made without interest
thereon and on terms that are reasonably acceptable to the Company
and the Indemnified Party. For purposes of this Agreement,
the phrase “determined in a Claim” or “determined
in the Claim” means a decision by a court, arbitrator,
hearing officer or other judicial agent having the requisite legal
authority to make that decision, which decision has become final
and from which no appeal or other review proceeding is
permissible.
1.2
Claim . “Claim” means any
threatened, pending or completed action, suit or proceeding, any
inquiry or investigation, or any appeal therefrom whether conducted
by the Company or any other party, that the Indemnified Party in
good faith believes has led or might lead to the institution of any
action, suit or proceeding, whether civil, criminal,
administrative, regulatory, investigative or other and any
counterclaims in connection therewith. Claim shall not
include an action by or in the right of the Company if the
Indemnified Party is adjudged to be liable to the Company unless
and only to the extent that it is determined in the Claim that,
despite the adjudication of liability but in view of all the
circumstances of the case, the Indemnified Party is fairly and
reasonably entitled to indemnity for expenses that the court deems
proper.
1
1.3
Indemnifiable Event
. “Indemnifiable
Event” means any event or occurrence arising from or related
to the fact that the Indemnified Party is or was serving the
Company in some capacity, including without limitation, as a
director, officer, employee, or agent of the Company or of any
direct or indirect subsidiary, or any corporation, limited
liability company, partnership, joint venture, trust, employee
benefit plan, or other enterprise related to the business or
activities of the Company or its direct or indirect subsidiaries,
or by reason of anything done or not done by the Indemnified Party
in any such capacity if he or she acted in good faith and in a
manner he or she 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 his or her
conduct was unlawful. An “Indemnifiable Event”
does not include (i) any proceeding initiated by the
Indemnified Party (other than in the Indemnified Party’s
capacity as an officer or director of the Company) against the
Company or any current or former director or officer of the
Company, unless the Company has joined in or consented in writing
to the initiation of such action, or (ii) any proceedings
arising from the purchase and sale by the Indemnified Party of
securities in violation of Section 16(b) of the
Securities Exchange Act of 1934, as amended.
1.4
Expenses . “Expenses” include
reasonable attorneys’ fees and all other reasonable costs,
expenses and obligations actually incurred and paid or payable in
connection with investigating, defending, being a witness in or
participating in (including on appeal), or preparing to defend, any
Claim relating to any Indemnifiable Event. Expenses also
include judgments, fines, penalties and amounts paid in settlement
(including all interest, assessments and other charges actually
incurred and paid or payable in connection with or in respect of
any Expenses) of any Claim relating to any Indemnifiable
Event. Expenses also include Additional Expenses as defined
in Section 3 below.
2.
Notification and Defense of
Claim.
2.1
Notification
. Promptly after receipt by
the Indemnified Party of notice of the commencement of any Claim,
the Indemnified Party will, if a claim for indemnification in
respect thereof is to be made against the Company under this
Agreement, notify the Company of the commencement thereof;
provided, however, the failure to notify the Company will not
relieve the Company from any liability which it may have to the
Indemnified Party under this Agreement if the omission does not
materially adversely prejudice the rights of the Company. In
addition, the Indemnified Party shall give the Company the
information and cooperation as the Company may reasonably require,
subject to reasonable claims of privilege or other basis for
nondisclosure by the Indemnified Party. No notification is
required by this Section 2.1 with respect to any named
defendant in the action styled Alaska Electrical Pension Fund v.
Tom W. Olofson, et al, Defendants, and Epiq Systems, Inc.,
Nominal Defendant.
2.2
Defense . With respect to any Claim as to which
the Indemnified Party notifies the Company of the commencement
thereof, the Company will be entitled to participate therein at its
own expense. Except as otherwise provided below, to the
extent that it may wish, the Company will be entitled to assume the
defense of the Claim, with nationally recognized litigation defense
counsel reasonably satisfactory to the Indemnified Party.
After notice from the Company to the Indem
