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.


 


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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 Indemnified Party of its election
to assume the defense of the Claim, the Company will not be liable to the
Indemnified Party under this Agreement for any legal expenses subsequently
incurred by the Indemnified Party in connection with the defense thereof other
than reasonable costs of investigation or as otherwise provided below.  The Indemnified Party shall have the right to
employ counsel in the Claim, but the fees and expenses of counsel incurred
after notice from the Company of its assumption of the defense thereof shall be
at the expense of the Indemnified Party unless (i) the employment of
counsel by the Indemnified Party has been authorized by the Company, (ii) independent
legal counsel approved by both the Company and the Indemnified Party reasonably
concludes that there is or is likely to be a conflict of interest between the
Company and the Indemnified Party in the conduct of the defense of the Claim,
or (iii) the Company shall not in fact have employed counsel to assume the
defense of the Claim, in each of which cases the


 


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reasonable
fees and expenses of nationally recognized litigation defense counsel for the
Indemnified Party shall be borne by the Company.  The Company shall not be entitled to assume
the defense of any Claim brought by or on behalf of the Company or as to which
counsel shall have reasonably made the conclusion provided in clause (ii) above.


 


2.3                                  Settlements.  The Company shall not be liable to indemnify
the Indemnified Party under this Agreement for any amounts paid in settlement
of any Claim made without the prior written consent of the Company.  The Company shall not settle any Claim in any
manner that would impose any penalty or limitation on the Indemnified Party or
result in a finding of wrongdoing against the Indemnified Party without the
Indemnified Party’s prior written consent. 
Neither the Company nor the Indemnified Party will unreasonably withhold
their consent to any proposed settlement.


 


3.                                      Indemnification
for Additional Expenses.  The
Company shall indemnify the Indemnified Party against any and all expenses
(including reasonable attorneys’ fees) (collectively, “Additional Expenses”)
and, if requested by the Indemnified Party, the Company shall (within five
business days after the request) advance Additional Expenses to the Indemnified
Party, which are or may be incurred by the Indemnified Party in connection with
(a) any request by the Indemnified Party for indemnification or
advancement of Expenses under this Agreement, or (b) any claim asserted
against or action brought by the Indemnified Party for (i) indemnification
or advance payment of Expenses by the Company under this Agreement or any other
agreement or under the Company’s Articles of Incorporation or Bylaws, now or
hereafter in effect relating to Claims for an Indemnifiable Event or (ii) recovery
under any directors’ and officers’ liability insurance policies maintained by
the Company.


 


4.                                      Partial
Indemnity, Etc.  If the
Indemnified Party is entitled under any provision of this Agreement to
indemnification by the Company for some or a portion of the Expenses of a
Claim, but not, however, for the total amount thereof, the Company shall
nevertheless indemnify the Indemnified Party for the portion thereof to which
the Indemnified Party is entitled. 
Moreover, notwithstanding any other provision of this Agreement, to the
extent that the Indemnified Party has been successful on the merits or
otherwise in defense of any Claims relating in whole or in part to an
Indemnifiable Event or in defense of any issue or matter therein, including
dismissal without prejudice, the Indemnified Party shall be indemnified against
all Expenses incurred in connection with the successful defense of that Claim
or Claims.


 


5.                                      No
Presumption.  For
purposes of this Agreement, the termination of any Claim by judgment, order,
settlement (whether with or without court approval) or conviction, or upon a
plea of nolo contendere, or its equivalent, shall not create a presumption that
the Indemnified Party did not meet any particular standard of conduct or have
any particular belief or that it has been determined in a Claim that
indemnification is not permitted by applicable law.


 


6.                                      Nonexclusivity.  The rights of the Indemnified Party hereunder
shall be in addition to any other rights the Indemnified Party may have under
the Company’s Articles of Incorporation or Bylaws or rules, pursuant to
resolutions or determinations of the Board of Directors, under an insurance
policy or policies, under applicable law or otherwise.  To the extent that a change in applicable law
(whether by statute or judicial decision) permits greater indemnification by
agreement than would be afforded currently under the Company’s Articles of
Incorporation or Bylaws and this Agreement, it is the intent of the parties
that the Indemnified Party shall enjoy by this Agreement the greater benefits
so afforded by the change.


 


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7.                                      Liability
Insurance.  To the
extent the Company maintains an insurance policy or policies providing
liability insurance, the Indemnified Party shall be covered by the policy or
policies, in accordance with its or their terms, to the maximum extent of the
coverage available for any Company employee.


 


8.                                      Subrogation.  In the event of payment under this Agreement,
the Company shall be subrogated to the extent of the payment to all of the
rights of recovery of the Indemnified Party, who shall execute all papers
required and shall do everything that may be necessary to secure the recovery
rights, including the execution of documents necessary to enable the Company
effectively to bring suit to enforce those rights.


 


9.                                      No
Duplication of Payments.  The
Company shall not be liable under this Agreement to make any payment in
connection with any Claim made against the Indemnified Party to the extent the
Indemnified Party has otherwise actually received payment (under any insurance
policy, the Company’s Articles of Incorporation or Bylaws or otherwise) of the
amounts otherwise indemnifiable hereunder.


 


10.                               Miscellaneous
Provisions.


 


10.1                            Dispute
Resolution.  Although
the parties may agree on a case-by-case basis to submit to arbitration any
specific dispute or controversy between the parties arising out of or in
connection with this Agreement as to the construction, validity, interpretation
or meaning, performance, nonperformance, enforcement, operation, or breach,
neither party hereto shall be bound to arbitrate any matter under this
Agreement in the absence of an additional written agreement signed by each
party relating to the arbitration of any specified matter.


 


10.2                            Entire
Agreement.  This
Agreement supersedes all prior documents, understandings and agreements, oral
or written, and constitutes the entire agreement and understanding between the
parties with respect to the subject matter hereof, except that that this
Agreement shall not limit the Undertaking to repay advanced expenses made by
the undersigned on or about _____________ , 2008, with respect to the
action styled Alaska Electrical Pension Fund v. Tom W. Olofson, et al,
Defendants, and Epiq Systems, Inc., Nominal Defendant.


 


10.3                            Successors and
Assigns.  This Agreement is binding upon
and shall inure to the benefit of the parties and their respective heirs,
personal and legal representatives, estate, spouse, and successors or assigns
(including any direct or indirect successor by purchase, merger, consolidation,
liquidation or otherwise to all or substantially all of the business or assets
of the Company).


 


10.4                            Severability.  If any one or more provisions of this
Agreement is held to be illegal, invalid or unenforceable under present or
future laws, then, if possible, the illegal, invalid or unenforceable provision
will be modified to the extent as is necessary to comply with the present or future
laws and the modification shall not affect any other provision hereof, provided
that if the provision may not be so modified the illegality, invalidity or
unenforceability will not affect any other provision, but this Agreement will
be reformed, construed and enforced as if the invalid, illegal or unenforceable
provision had never been contained herein.


 


10.5                            Notices.  Communications and other notices given under
this Agreement will be deemed delivered when (i) personally delivered, (ii) on
the third business day following deposit in the U.S. mail, first class, postage
paid, or (iii) on the date of actual delivery by a national overnight
courier service, and addressed to Indemnified Party at the address listed on
the signature page to this Agreement


 


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or
at such other address as the Indemnified Party shall specify to the Company in
a notice given pursuant to this Section, or to the Company, as follows:


 


Epiq
Systems, Inc.


Attn:  Legal Department


501
Kansas Avenue


Kansas
City, KS  66105


 


10.6                            Choice of Law.  This Agreement shall be governed by and
construed in accordance with the laws of the State of Missouri, without regard
to principles of conflict of law.


 


10.7                            Headings and
Captions.  All
headings and captions used in this Agreement are for convenience only and shall
not be construed to either limit or broaden the language of this Agreement or
any particular section.


 


10.8                            Counterparts.  This Agreement may be executed in two or more
counterparts, each of which may be executed by one or more of the parties, but
all of which, when taken together, shall constitute but one agreement binding
upon all of the parties.


 


10.9                            Third-Party
Beneficiaries.  This
Agreement is not intended to confer upon any non-party rights or remedies
hereunder.


 


10.10                      Binding
Agreement.  This
Agreement shall be deemed effective and legally binding upon the parties when
it has been executed and delivered by all parties.  This Agreement shall inure to the benefit of
the parties and their respective successors and permitted assignees.


 


10.11                      Interpretation.  The parties acknowledge and agree that (i) each
party and its representatives has reviewed and negotiated the terms and
provisions of this Agreement and have contributed to its revision, (ii) the
rule of construction to the effect that any ambiguities are resolved
against the drafting party shall not be employed in the interpretation of this
Agreement and (iii) the terms and provisions of this Agreement shall be
construed fairly as to all parties and not in favor of or against any party
regardless of which party was generally responsible for the preparation of this
Agreement.


 


IN WITNESS WHEREOF, the undersigned have
executed this Indemnification Agreement as of the date first set forth above.


 


	
   

  	
  EPIQ
  SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNIFIED
  PARTY:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Address:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
				



 


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