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EXHIBIT 10.1
EXECUTION COPY
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SECURITIES PURCHASE AGREEMENT
AMONG
EPIQ SYSTEMS, INC.
AND
THE SEVERAL PURCHASERS NAMED IN EXHIBIT A
DATED AS OF DECEMBER 29, 2000
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SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (this "Agreement") is dated as of
December 29, 2000, among EPIQ SYSTEMS, INC., a Missouri corporation (the
"Company"), and the several PURCHASERS named in EXHIBIT A (individually a
"Purchaser" and collectively, the "Purchasers").
Recitals:
1. The Company desires to issue and sell to Purchasers, and Purchasers
desire to purchase from the Company, an aggregate of up to 900,000 shares (the
"Shares") of Common Stock, $.01 par value per share (the "Common Stock") upon
and subject to the terms and conditions of this Agreement and the Private
Placement Memorandum, dated November 27, 2000, including all exhibits and
supplements thereto (the "Memorandum").
Agreement:
The Company and Purchasers agree as follows:
SECTION 1. PURCHASE OF COMPANY SECURITIES.
1.1. PURCHASE AND SALE OF THE SHARES. Subject to the terms and conditions
of this Agreement, the Company will issue and sell to Purchasers, and each
Purchaser, severally and not jointly, will purchase from the Company the number
of Shares set forth on EXHIBIT A opposite Purchaser's name at the purchase price
set forth opposite each Purchaser's name on EXHIBIT A ("Purchase Price").
SECTION 2. CLOSING. The closing (the "Closing") of the purchase and sale
of the Shares (the "Offering") will take place at the offices of Gilmore & Bell,
P.C., 2405 Grand Boulevard, Suite 1100, Kansas City, Missouri 64108, at 10:00
A.M., local time, on Friday, December 29, 2000. The Closing may take place at
another time, place or earlier date as is mutually agreed upon by the Company
and Purchasers. The date of the Closing is referred to as the "Closing Date." At
the Closing, the Company will cause the transfer agent to issue and to deliver
to each Purchaser stock certificates representing the Shares in accordance with
EXHIBIT A, against payment of each Purchaser's Purchase Price by wire transfer
of immediately available United States funds payable to the Company's account
pursuant to the wire transfer instructions set forth on EXHIBIT A, provided
that, if requested by a Purchaser, stock certificates representing the Shares
shall be delivered to such Purchaser's escrow agent prior to Closing. The Shares
will be registered in Purchasers' names or the names of the nominees of
Purchasers pursuant to instructions delivered to the Company not less than two
business days prior to the Closing Date, and certificates that are not delivered
prior to Closing will be delivered to Purchasers within 10 business days after
the Closing Date. The Company may have subsequent Closings with additional
Purchasers under the terms of a Securities Purchase Agreement substantially
identical hereto, provided the aggregate number of Shares issued by the Company
in all Closings does not exceed 900,000 Shares, at a price per share of no less
than $15.00, and the last Closing occurs no later than January 31, 2001.
SECTION 3. CONDITIONS TO THE OBLIGATIONS OF PURCHASERS AT CLOSING. The
obligation of each Purchaser to purchase and pay for the Shares at Closing is
subject to the satisfaction on or prior to the Closing Date of the following
conditions, each of which may be waived by Purchasers:
3.1 MINIMUM SUBSCRIPTION AMOUNT. The Offering will be for no less than
900,000 shares of Common Stock at $15.00 per share.
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3.2 OPINION OF COUNSEL TO THE COMPANY. The Purchasers will have received
from Gilmore & Bell, P.C., securities counsel for the Company, its opinion dated
the Closing Date in the form of EXHIBIT B.
3.3 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
the Company contained in SECTION 6 must be true and correct in all material
respects on and as of the Closing Date except to the extent that the
representations and warranties relate to an earlier date in which case the
representations and warranties must be true and correct in all material respects
on and as of such earlier date.
3.4 PERFORMANCE OF COVENANTS. The Company will have performed or complied
in all material respects with all covenants and agreements required to be
performed by it on or prior to the Closing pursuant to this Agreement.
3.5 NO INJUNCTIONS; ETC. No court or governmental injunction, order or
decree prohibiting the purchase and sale of the Shares will be in effect. There
will not be in effect any law, rule or regulation prohibiting or restricting the
sale or requiring any consent or approval of any person that has not been
obtained which prohibits the consummation of any of the transactions
contemplated by this Agreement, other than the United States Securities and
Exchange Commission's (the "SEC") declaration that the Company's shelf
registration statement on Form S-3, which is required to be filed pursuant to
the terms of this Agreement, is effective.
3.6 CLOSING DOCUMENTS. The Company will have delivered to Purchasers the
following:
(a) a certificate of the Secretary of the Company, dated as of the
Closing Date, as to the continued existence of the Company, certifying (i) the
attached are true and complete copies of the Articles of Incorporation and
Bylaws of the Company, as in effect on the date of such certification; (ii) the
attached are true and complete copies of the resolutions of the Board of
Directors of the Company authorizing the execution, delivery and performance of
this Agreement as in effect on the date of such certification; and (iii) as to
the incumbency and specimen signature of each officer of the Company executing
this Agreement and any other document delivered by it in connection herewith
(such certificate to contain a certification by another officer of the Company
as to the incumbency and signature of the officer signing the certificate
referred to herein).
(b) a certificate of the Secretary of State of the State of Missouri,
dated a recent date, to the effect that the Company is in good standing in the
State of Missouri and that all annual reports, if any, have been filed as
required and that all taxes and fees have been paid in connection therewith.
3.7 WAIVERS AND CONSENTS. The Company will have obtained all consents and
waivers necessary to execute and deliver this Agreement and all related
documents and agreements and to issue and deliver the Shares, and all consents
and waivers will be in full force and effect.
3.8 SATISFACTION OF PURCHASER. All proceedings to be taken in connection
with the Offering are to be consummated at or prior to the Closing, and all
documents incidental thereto shall be reasonably satisfactory in form and
substance to the Purchaser and its counsel, and the Purchaser and its counsel
shall have received copies of all documents and information which it may have
reasonably requested in connection with the transaction and of all corporate
proceedings in connection therewith, in form and substance reasonably
satisfactory to Purchaser and its counsel.
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SECTION 4. CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AT CLOSING. The
obligation of the Company to issue and sell the Shares to Purchasers at Closing
is subject to the satisfaction on or prior to the Closing Date of the following
conditions, each of which may be waived by the Company:
4.1 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
Purchasers contained in this Agreement must be true and correct in all material
respects as of the Closing Date.
4.2 NO INJUNCTIONS. No court or governmental injunction, order or decree
prohibiting the purchase or sale of the Shares will be in effect.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each Purchaser,
severally and not jointly, represents and warrants to the Company that:
5.1 ACCREDITED INVESTOR. Purchaser is an "accredited investor" as defined
in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the
"Securities Act"). Purchaser is acquiring the Shares for its own account and not
with a present view to, or for sale in connection with, any distribution thereof
in violation of the registration requirements of the Securities Act.
5.2 AUTHORITY, ETC. Purchaser has the power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. The execution
and delivery by Purchaser of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary
corporate or other action on the part of Purchaser. If Purchaser is an
individual, Purchaser has the legal capacity to enter into this Agreement. This
Agreement constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms, subject to laws of
general application relating to bankruptcy, insolvency and the relief of debtors
and rules of law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy.
5.3 ACCESS TO INFORMATION. Purchaser acknowledges that it has been
afforded (i) the opportunity to ask the questions it deemed necessary of, and
to receive answers from, representatives of the Company concerning the Company
and the terms and conditions of the Offering; and (ii) the opportunity to
request additional information concerning the Company as the Company possesses
or can acquire without unreasonable effort or expense.
5.4 NO GENERAL SOLICITATION. Purchaser is not purchasing the Shares as a
result of any advertisement, article, notice or other communication published in
a newspaper or magazine or similar media or broadcast over television or radio,
whether closed circuit, or generally available, or any seminar, meeting or other
conference whose attendees were invited by any general solicitation or general
advertising.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Purchaser, except as set forth on the Disclosure
Schedule provided by the Company to each Purchaser, that as of the date hereof
and the Closing Date:
6.1 ORGANIZATION, GOOD STANDING AND QUALIFICATION; SUBSIDIARIES. The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Missouri. The Company has full corporate power
and authority to own and hold its properties and to conduct its business. The
Company is duly licensed or qualified to do business, and in good standing, in
each jurisdiction in which the nature of its business requires licensing,
qualification or good standing, except for any failure to be so licensed or
qualified or in good standing that would not have a material adverse effect on
the Company or its business, properties, results of operations, assets,
condition (financial or
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otherwise), prospects or on its ability to perform its obligations under this
Agreement (a "Material Adverse Effect"). The Company has no subsidiary
corporations or entities.
6.2 CAPITALIZATION. As of the date hereof, the authorized capital stock
of the Company consists of 20,000,000 shares of Common Stock, par value $.01 per
share. As of November 30, 2000, (i) 4,682,168 shares of Common Stock were issued
and outstanding and (ii) 743,700 shares of Common Stock were reserved for
issuance upon exercise of outstanding options issued or issuable under the
Company's 1995 Stock Option Plan (the "1995 Plan"). As of November 30, 2000,
there were outstanding options under the 1995 Plan to purchase 459,850 shares of
Common Stock and warrants to purchase 47,800 shares of Common Stock at a warrant
exercise price of $4.20 per share. All the outstanding shares of Common Stock
have been duly authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of, or subject to any preemptive,
subscription or other similar rights of any shareholder of the Company. Except
as set forth in this SECTION 6.2, there are no other options, warrants or other
rights, convertible debt, agreements, arrangements or commitments of any
character obligating the Company to issue or sell any shares of capital stock of
or other equity interests in the Company. The Company is not obligated to
retire, redeem, repurchase or otherwise reacquire any of its capital stock or
other securities.
6.3 CORPORATE POWER, AUTHORIZATION; ENFORCEABILITY. The Company has full
corporate power and authority to execute, deliver and enter into this Agreement
and to consummate the transactions contemplated hereby. All action on the part
of the Company, its directors or shareholders necessary for the authorization,
execution, delivery and performance of this Agreement by the Company, the
authorization, sale, issuance and delivery of the Shares contemplated hereby and
the performance of the Company's obligations hereunder has been taken. The
Shares to be purchased on the Closing Date have been duly authorized and, when
issued in accordance with this Agreement, will be validly issued, fully paid and
nonassessable and will be free and clear of all liens, adverse claims or
encumbrances (collectively, "Liens") imposed by or through the Company and will
not be subject to any preemptive rights or other similar rights of shareholders
of the Company and the Purchaser will acquire good and marketable title to the
Shares. This Agreement has been duly executed and delivered by the Company and
constitutes a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, subject to laws of general
application relating to bankruptcy, insolvency and the relief of debtors and
rules of law governing specific performance, injunctive relief or other
equitable remedies, and to limitations of public policy. Other than the filing
with Nasdaq of a final Notification Form for the listing of additional shares
and the Company's payment to Nasdaq of the requisite quarterly fees for the
Company's outstanding shares, no further corporate action is required under the
rules of Nasdaq with respect to the transactions contemplated by this Agreement,
including without limitation, the issuance of the Shares and the inclusion
thereof for trading on Nasdaq.
6.4 FINANCIAL STATEMENTS AND SEC DOCUMENTS. (a) Included in the Company's
Form 10-KSB for the year ended December 31, 1999, are true and complete copies
of the audited balance sheet (the "Balance Sheet") of the Company as of December
31, 1999, and the related audited statements of operations, shareholders' equity
and cash flows for the years ended December 31, 1998 and 1999 (the "Audited
Financial Statements"), accompanied by the report of Baird, Kurtz & Dobson.
Included in the Memorandum are the Company's Quarterly Reports on Form 10-Q for
each of the quarters ended March 31, 2000, June 30, 2000 and September 30, 2000
(the "Quarterly Reports"). Included in the Quarterly Reports are the requisite
unaudited balance sheets of the Company and the related unaudited statements of
income and statements of cash (the "Unaudited Financial Statements,"
collectively with the "Audited Financial Statements," the "Financials
Statements"). The Financial Statements have been prepared in accordance with
generally accepted accounting principles, applied consistently with the past
practices of the Company (except as may be indicated in the notes thereto), and
as of their respective
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dates, fairly present, in all material respects, the financial position of the
Company and the results of its operations as of the time and for the periods
indicated therein.
(b) A copy of each report, schedule, effective registration statement and
definitive proxy statement filed by the Company with the Securities and Exchange
Commission (the "SEC") since January 1, 1999, (as the documents may have been
amended since the time of their filing, the "SEC Documents") has also been made
available to each Purchaser via the SEC's EDGAR System. The Company has provided
to each Purchaser who has requested the same a true and complete copy of each
SEC Document that the Company filed since January 1, 1999. As of their
respective filing dates, each SEC Document complied in all material respects
with the requirements of the Securities Act or the Securities Exchange Act of
1934, as amended (the "Exchange Act"), as applicable, and the rules and
regulations of the SEC thereunder applicable to the SEC Document. No SEC
Document contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading. As of their respective filing dates, the financial statements of
the Company included in the SEC Documents complied as to form in all material
respects with then applicable accounting requirements and with the published
rules and regulations of the SEC with respect thereto, were prepared in
accordance with generally accepted accounting principles, applied consistently
with the past practices of the Company, and as of their respective dates, fairly
presented in all material respects the financial position of the Company and the
results of its operations as of the time and for the periods indicated therein
(except as may be indicated in the notes thereto or, in the case of the
unaudited statements, as permitted by Form 10-Q or 10-QSB, as applicable, and
Regulations S-K or S-B, as applicable, and S-X of the SEC).
6.5 NO MATERIAL ADVERSE CHANGES. Since December 31, 1999, except as
disclosed in the SEC Documents filed subsequent to that date, if any, there has
not been any material adverse change in the business, properties, assets,
condition (financial or otherwise), prospects or operating results of the
Company.
6.6 ABSENCE OF CERTAIN DEVELOPMENTS. Except as described in or
contemplated by this Agreement or the SEC Documents, since December 31, 1999,
through the Closing Date, the Company has not (a) issued any stock, options,
bonds or other corporate securities, (b) borrowed any amount or incurred or
become subject to any liabilities (absolute, accrued or contingent), other than
current liabilities incurred in the ordinary course of business and liabilities
under contracts entered into in the ordinary course of business, (c) discharged
or satisfied any lien or adverse claim or paid any obligation or liability
(absolute, accrued or contingent), other than current liabilities shown on the
Balance Sheet and current liabilities incurred in the ordinary course of
business; (d) declared or made any payment or distribution of cash or other
property to the shareholders of the Company or purchased or redeemed any
securities of the Company; (e) mortgaged, pledged or subjected to any lien or
adverse claim any of its properties or assets, except for liens for taxes not
yet due and payable or otherwise in the ordinary course of business; (f) sold,
assigned or transferred any of its assets, tangible or intangible, except in the
ordinary course of business, (g) suffered any extraordinary losses or waived any
rights of material value other than in the ordinary course of business; (h) made
any capital expenditures or commitments therefor other than in the ordinary
course of business; (i) entered into any other material transaction other than
in the ordinary course of business; (j) suffered any damages, destruction or
casualty loss, whether or not covered by insurance, affecting any of the
properties or assets of the Company or any other properties or assets of the
Company which could, individually or in the aggregate, have or result in a
Material Adverse Effect; (k) made any material change in the nature or
operations of the business of the Company; or (l) entered into any agreement or
commitment to do any of the foregoing.
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6.7 NO CONFLICT; GOVERNMENTAL CONSENTS. (a) The execution and delivery by
the Company of this Agreement and the consummation of the transactions
contemplated hereby will not (i) result in the violation of any provision of the
Articles of Incorporation or Bylaws of the Company, (ii) result in any violation
of any law, statute, rule, regulation, order, writ, injunction, judgment or
decree of any court or governmental authority to or by which the Company is
bound, or (iii) conflict with, or result in a breach or violation of, any of the
terms or provisions of, or constitute (with due notice or lapse of time or both)
a default under, any lease, loan agreement, mortgage, security agreement, trust
indenture or other agreement to which the Company is a party or by which it is
bound or to which any of its properties or assets is subject, nor result in the
creation or imposition of any Lien upon any of the properties or assets of the
Company.
(b) No consent, approval, license, permit, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority remains to be obtained or is
otherwise required to be obtained by the Company in connection with the
authorization, execution and delivery of this Agreement or the consummation of
the transactions contemplated hereby, including, without limitation the issue
and sale of the Shares, except filings as may be required to be made by the
Company after the Closing with (i) the SEC, (ii) the National Association of
Securities Dealers, Inc. ("NASD"), (iii) the Nasdaq Stock Market, Inc. and (iv)
state blue sky or other securities regulatory authority.
6.9 MATERIAL MISSTATEMENTS. No information relating to or concerning the
Company set forth in this Agreement or in the Memorandum contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements made herein and therein, in light of the
circumstances under which they were made, not misleading. Except for the
execution and performance of this Agreement and the transactions contemplated
hereby, no material fact (within the meaning of the federal securities laws of
the United States of America) exists with respect to the Company which as not
been publicly disclosed, except to the extent not required to be disclosed
pursuant to the applicable rules and regulations of the SEC.
6.10 NO GENERAL SOLICITATION. Neither the Company nor any person acting
on behalf of the Company has conducted any "general solicitation," as described
in Rule 502(c) under Regulation D promulgated under the Securities Act
("Regulation D"), with respect to any of the Shares being offering hereby.
6.11 REGISTRATION FORM. The Company will be eligible to register the
resale of the Shares by the Purchaser in a secondary offering on a registration
statement on Form S-3 under the Securities Act, after the Company has filed its
Annual Report on Form 10-K for the year ending December 31, 2000.
6.12 NO INTEGRATION. Neither the Company, nor any of its affiliates, nor
any person acting on their behalf, has directly or indirectly made any offers or
sales of any security or solicited any offers to buy any security under
circumstances that would prevent the parties hereto from consummating the
transactions contemplated hereby pursuant to an exemption from registration
under the Securities Act pursuant to the provisions of Regulation D. The
transactions contemplated hereby are exempt from the registration requirements
of the Securities Act, assuming the accuracy of the representations and
warranties herein contained of Purchaser to the extent relevant for such
determination. The issuance of the Shares to the Purchaser will not be
integrated with any other issuance of the Company's securities (past or current)
which requires shareholder approval under the rules of Nasdaq or which would
result in a violation of the Securities Act. The issuance of the Shares to the
Purchaser does not require shareholder approval, including, without limitation,
pursuant to the rules of Nasdaq.
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6.13 NO BROKERS. The Company has taken no action which would give rise to
any claim by any person for brokerage commissions, finder's fees or similar
payments by Purchaser relating to this Agreement or the transactions
contemplated hereby, except for dealings with the placement agent (the fees of
which shall be borne solely by the Company).
6.14 TAXES. Except as set forth in the financial statements included in
the filed SEC Documents, the Company has timely filed all requisite United
States of America federal, state and other tax returns or extension requests
for all fiscal periods in which such filings were required to be made. To the
Company's knowledge, there are no examinations in progress or claims pending
against the Company for United States of America federal, state and other taxes
(including penalties and interest) for any period or periods prior to and
including December 31, 1999 and no notice of any claim for taxes, whether
pending or threatened, has been received. To the Company's knowledge, all taxes
due from the Company for any period ended before the date hereof, including
interest and penalties (whether or not shown on any tax return) has been paid.
The amounts shown as accruals for taxes on the financial statements included in
the filed SEC Documents are appropriate under generally accepted accounting
principles, consistently applied. The Company is not and has not during the last
five (5) years been a party to any tax sharing agreement or agreement of similar
effect. The Company is not and has not during the last five (5) years been a
member of any consolidated group. Except as set forth in the financial
statements included in the filed SEC Documents, the Company has not received,
been denied, or applied for any private letter ruling during the last five (5)
years.
6.15 LICENSES AND PERMITS. To the Company's knowledge, the Company has all
Permits (as hereinafter defined) required by law or governmental regulations
from all applicable courts, administrative agencies or commissions or other
governmental authorities or instrumentalities, whether in the United States of
America (federal, state or local) or outside of the United States of America
that are necessary to operate such businesses as presently conducted and all
such Permits are in full force and effect, except where the failure to have any
such Permits in full force and effect could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. To the
Company's knowledge, the Company is not in default under, or in violation of or
noncompliance with, any of such Permits, except for any such default, violation
of or noncompliance which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect. Upon consummation of
the transactions contemplated by this Agreement, each such Permit will remain in
full force and effect and will not create a right of any other person to
terminate or revoke, modify or condition such Permit based on such consummation.
"Permit" means any permit, certificate, consent, approval, authorization, order,
license, variance, franchise or other similar indicia of authority issued or
granted by any court, administrative agency or commission or other governmental
authority or instrumentality, whether in the United States of America (federal,
state or local) or outside of the United States of America.
6.16 LITIGATION. Except as set forth in the SEC Documents and the
Memorandum, there is no action, suit, proceeding, inquiry or investigation
before or by any court, public board, governmental agency or authority, or
self-regulatory organization or body pending or threatened against or affecting
the Company or any of its directors or officers in their capacities as such.
6.17 INVESTMENT COMPANY. The Company is not, and after giving effect to
the transactions contemplated herein, will not be an "investment company" within
the meaning of that term under the Investment Company Act of 1940, as amended,
and the rules and regulations of the SEC thereunder.
6.18 NO DEFAULT OR VIOLATION. The Company is not (i) in default under or
in violation of any indenture, loan or credit agreement or any other agreement
or instrument to which it is a party or by which it or any of its properties is
bound or (ii) in violation of any order of any court, arbitrator or governmental
body.
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6.19 LISTING AND MAINTENANCE REQUIREMENTS COMPLIANCE. The Company has not
since January 1, 1999, received notice (written or oral) from any stock exchange
or market on which the Common Stock is or has been listed (or on which it has
been quoted) to the effect that the Company is not in compliance with the
continuing listing or maintenance requirements of the exchange or market.
6.20 PATENTS AND TRADEMARKS. The Company has, or has rights to use, all
patents, patent applications, trademarks, trademark applications, service marks,
trade names, copyrights, licenses and know-how (including trade secrets or other
unpatented and/or unpatenable proprietary or confidential information, systems
or procedures) (collectively, the "INTELLECTUAL PROPERTY RIGHTS") that are
necessary for use in connection with its business as presently conducted or that
the failure to have would not have a Material Adverse Effect and to the
Company's knowledge, there is no existing infringement by another person or
entity of any of the Intellectual Property Rights that are necessary for use in
connection with the Company's business as presently conducted. To the Company's
knowledge, the Company is not infringing on or in conflict with any right of any
other person with respect to any intangibles nor is there any claim of
infringement made or threatened by a third party against or involving the
Company.
6.21 ENVIRONMENTAL MATTERS. The Company has obtained all permits, licenses
and other authorizations that are required under federal, state and local laws
relating to pollution or protection of the environment, including laws related
to emissions, discharges, releases or threatened releases of pollutants,
contaminants or hazardous or toxic material or wastes into ambient air, surface
water, ground water or land, or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling of pollutants, contaminants or hazardous or toxic materials or wastes
("Environmental Laws"), except for any failures to obtain the permits, licenses
or authorizations that would not, individually or in the aggregate, have or
result in a Material Adverse Effect. The Company is in compliance with all terms
and conditions of the required permits, licenses and authorizations and is also
in full compliance with all other limitations, restrictions, conditions and
requirements contained in the Environmental Laws or contained in any plan,
order, judgment, decree or notice, except for any non-compliance which could
not, individually or in the aggregate, have or result in a Material Adverse
Effect. The Company is not aware of, nor has the Company received notice of, any
events, conditions, circumstances, actions or plans which may interfere with or
prevent continued compliance or which would give rise to any liability under any
Environmental Laws, except for any liability which could not, individually or in
the aggregate, have or result in a Material Adverse Effect.
6.22 KEY CONTRACTS. The Agreement for Computerized Trustee Case Management
System (the "NationsBank Agreement") between the Company and NationsBank of
Texas, N.A. ("NationsBank") is valid and in full force and effect. Neither the
Company nor NationsBank has breached any provision of, or is in default in any
material respect under, the NationsBank Agreement. The Company does not know of
any event which with notice, or the lapse of time, or both, would constitute a
breach or default by the Company or NationsBank under the NationsBank Agreement.
NationsBank has not given notice of termination, or threatened to give notice of
termination, of the NationsBank Agreement.
SECTION 7. COVENANTS OF THE COMPANY.
7.1 REPORTING STATUS. So long as the Company is subject to the reporting
requirements of the Exchange Act, the Company will use its best efforts to
timely file all reports required to be filed with the SEC pursuant to the
Exchange Act.
7.2 FORM D. The Company shall file a Form D within 15 days of the Closing
Date with respect to the Shares with the SEC as required under Regulation D
under the Securities Act, and shall provide a copy thereof to the Purchaser.
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7.3 EXCHANGE ACT FILINGS. The Company agrees to provide the following
reports to the Purchaser until the earlier of (i) the date on which the
Purchaser transfers, assigns or sells all of its Shares to a non-affiliate of
such Purchaser, or (ii) the third (3rd) anniversary of the Closing Date: (a) a
copy of its Annual Report on Form 10-K within 90 days of the end of the
Company's fiscal year, its Quarterly Reports on Form 10-Q within 45 days of the
end of each fiscal quarter, any proxy statements and any Current Reports on Form
8-K as each becomes available and (b) within two (2) days after release, copies
of all press releases issued by the Company or any of its subsidiaries. Subject
to Regulation FD and any state or federal securities laws, the Company further
agrees to provide promptly to the Purchaser any information with respect to the
Company, its properties, or its business or the Purchaser's investment as the
Purchaser may reasonably request; PROVIDED, HOWEVER, that the Company shall not
be required to provide the Purchaser any material nonpublic information.
7.4 LISTING AND MAINTENANCE REQUIREMENTS COMPLIANCE. So long as the
Company shall continue the listing and trading of its Common Stock on Nasdaq the
Company will use its best efforts to comply in all respects with the Company's
reporting, filing and other obligations under the by-laws or rules of such
exchange or quotation system.
7.5 INTEGRATION. The Company will use its best efforts to insure that the
issuance of the Shares to the Purchaser will not be integrated with any other
issuance of the Company's securities in the future, which requires shareholder
approval under the rules of Nasdaq or which would result in a violation of the
Securities Act.
SECTION 8. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Notwithstanding any
investigation made by any party to this Agreement, all representations and
warranties made by the Company and the Purchasers herein and in the certificates
for the Shares delivered pursuant hereto, shall survive for a period ending 30
days after the Company files its Annual Report on Form 10-K for the year ending
December 31, 2001 and shall thereupon expire together with the associated right
to indemnification pursuant to SECTION 10.0(a)(iv), unless a claim for
indemnification (whether or not fixed as to liability or liquidated as to
amount) shall be made with respect thereto prior to the end of such period, in
which case such representation or warranty with respect to which such claim has
been made, and the associated right to indemnification shall survive until such
claim is satisfied, settled or dismissed.
SECTION 9. REGISTRATION OF COMMON STOCK.
9.1. REGISTRABLE SECURITIES. For the purposes of this Agreement,
"Registrable Securities" means (a) the Shares, (b) any shares of Common Stock
issued as a distribution with respect to the shares referred to in (a) and (c)
any shares of Common Stock issued pursuant to SECTION 9.2(b) or SECTION 9.6(b)
hereof; provided that (i) any shares of Common Stock will cease to be
Registrable Securities, and (ii) the Company will not be obligated to maintain
the effectiveness of the Shelf Registration Statement (as defined below), and
the Company's obligations under this SECTION 9 will cease, with respect to a
holder's (a "Holder") Registrable Securities following the earlier of (x) the
second anniversary of the Closing Date and (y) the date on which the Company
delivers an opinion of counsel in form and substance reasonably satisfactory to
the Holder that (1) the Holder may sell in a single transaction all Registrable
Securities then held or issuable to the Holder on a registered securities
exchange or Nasdaq market under an applicable exemption from the registration
requirements of the Securities Act (pursuant to Rule 144 under the Securities
Act or otherwise) and (2) all transfer restrictions and restrictive legends with
respect to the Registrable Securities will be removed upon the consummation of
the sale. The period of time during which the Company is required to keep the
Shelf Registration Statement effective is referred to as the "Registration
Period."
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<PAGE>
9.2 REGISTRATION (a) The Company will as soon as practicable following
the Closing Date but not later than April 5, 2001, file with the SEC a shelf
registration statement on Form S-3 or successor form or another form selected by
the Company that is available to it under the Securities Act (the "Shelf
Registration Statement") with respect to the Registrable Securities beneficially
owned by Purchasers following the Closing. The Company may amend the Shelf
Registration Statement from time to time to register securities other than
Registrable Securities for sale for the account of any person or entity;
PROVIDED, HOWEVER, that the amendment will be permitted only so long as the SEC
rules provide that the amendment does not give the SEC the right to review the
Shelf Registration Statement.
(b) If the registration statement referred to in SECTION 9.2(a) above has
not been declared effective by the SEC on or before June 22, 2001, the Company
shall promptly issue to each Purchaser .035 shares of Common Stock for every
Share purchased in the Offering. In addition, if the registration statement
referred to in SECTION 9.2(a) is not declared effective by the SEC on or before
the last day of each month thereafter, commencing on August 1, 2001, the Company
shall promptly, in each respective month (and prorated for partial months),
issue to each Purchaser .01 shares of Common Stock for every Share purchased in
the Offering until the registration statement is declared effective by the SEC
(rounded up to the nearest share after aggregating all shares held by such
Offering Holder). The foregoing payment shall constitute the sole monetary
remedy available to the Purchaser in the event that the Company does not comply
with the deadlines set forth in this SECTION 9.2(b) with respect to the
effectiveness of the registration statement referred to therein.
9.3. REGISTRATION PROCEDURES. In connection with the registration of any
Registrable Securities under the Securities Act as provided in this SECTION 9,
the Company will use its reasonable best efforts:
(a) To cause the Shelf Registration Statement (and any other related
registrations, qualifications or compliances as may be reasonably requested and
as would permit or facilitate the sale and distribution of all Registrable
Securities until the distribution thereof is complete) to become effective as
soon as practicable following the filing thereof;
(b) Prepare and file with the SEC the amendments and supplements to the
Shelf Registration Statement and the prospectus used in connection therewith and
take all other actions as may be necessary to keep the Shelf Registration
Statement continuously effective until the disposition of all securities in
accordance with the intended methods of disposition by the Holder or Holders
thereof set forth in the Shelf Registration Statement will be completed, and to
comply with the provisions of the Securities Act (to the extent applicable to
the Company) with respect to the dispositions;
(c) Furnish to each Holder of Registrable Securities a reasonable number
of copies of the Shelf Registration Statement and of each amendment and
supplement thereto, a number of copies of the prospectus included in the Shelf
Registration Statement (including each preliminary prospectus), in conformity
with the requirements of the Securities Act, and the other documents (including
exhibits to any of the foregoing), as the Holder may reasonably request, in
order to facilitate the disposition of the Registrable Securities owned by
Holder;
(d) To register or qualify the Registrable Securities covered by the
Shelf Registration Statement under blue sky laws of the various states as any
Holder reasonably requests, and do any and all other acts and things that may be
reasonably necessary or advisable to enable a Holder to consummate the
disposition in those states, except that the Company will not be required to
qualify generally to do business as a foreign corporation in any jurisdiction
wherein it would not, but for the requirements of this SECTION 9.3(D) be
obligated to be qualified, to subject itself to taxation in any jurisdiction, or
to consent to general service of process in any jurisdiction;
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<PAGE>
(e) Provide a transfer agent and registrar for the Registrable Securities
covered by the Shelf Registration Statement not later than the effective date of
the Shelf Registration Statement;
(f) Notify each Holder of Registrable Securities at any time when a
prospectus relating thereto is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in the Shelf Registration Statement contains an untrue statement of a material
fact or omits any fact necessary to make the statements therein not misleading,
and, at the request of any Holder, the Company will promptly prepare a
supplement or amendment to the prospectus so that, as thereafter delivered to
the purchasers of Registrable Securities, the prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein not misleading;
(g) Cause all Registrable Securities to be listed on each securities
exchange or Nasdaq National Market on which similar securities issued by the
Company are then listed;
(h) Enter into customary agreements (including, in the event the Holders
elect to engage an underwriter in connection with the Shelf Registration
Statement, an underwriting agreement containing customary terms and conditions)
and take all other actions as reasonably required in order to expedite or
facilitate the disposition of Registrable Securities; PROVIDED, HOWEVER, that,
except as provided in SECTION 9.4 hereof, the Company will not be liable for any
expenses, including, without limitation, any underwriter's fees, commissions and
discounts or counsel fees with respect to the sale of Registrable Securities;
(i) With a view to making available to the Holders the benefits of
certain rules and regulations of the SEC that at any time permit the sale of the
Registrable Securities to the public without registration, the Company agrees to
use its reasonable best efforts to:
(i) make and keep public information available, as those terms
are understood and defined in Rule 144 under the Securities Act;
(ii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Exchange Act; and
(iii) so long as a Holder owns any unregistered Registrable
Securities, furnish to the Holder upon any reasonable request a written
statement by the Company as to its compliance with the public information
requirements of Rule 144 under the Securities Act, and of the Exchange Act, a
copy of the most recent annual and quarterly report of the Company, and the
other SEC reports and documents of the Company as the Holder may reasonably
request in availing itself of any rule or regulation of the SEC allowing a
Holder to sell any Registrable Securities without registration (excluding any
reports or documents of the Company that the Company, in its sole discretion,
deems confidential).
(j) Make every reasonable effort to obtain the withdrawal of any order
suspending the effectiveness of the Shelf Registration Statement at the earliest
possible time.
9.4 REGISTRATION AND SELLING EXPENSES. All expenses incurred by the
Company in connection with the Company's performance of or compliance with this
SECTION 9, including (i) all SEC registration and filing fees, (ii) blue sky
fees and expenses, (iii) all necessary printing and duplicating expenses, and
(iv) all fees and disbursements of counsel and accountants retained on behalf of
the Company (collectively, the "Registration Expenses"), will be paid by the
Company. Each Holder may, at its election, retain its own counsel and other
representatives and advisors as it chooses at its own expense.
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<PAGE>
9.5 NO DELAY. The Holders will have no right to take any action to
restrain, enjoin or otherwise delay any registration pursuant to SECTION 9.2
hereof as a result of any dispute, controversy or other matter that may arise
with respect to the interpretation or implementation of this Agreement.
9.6 CERTAIN OBLIGATIONS OF HOLDERS. (a) The Company may voluntarily
suspend the effectiveness of the Shelf Registration Statement for a limited
time, which in no event shall be longer than 60 consecutive or non-consecutive
days in any 12-month period, if the Company has been advised in writing by
either counsel or underwriters to the Company that the offering of the
Registrable Securities pursuant to the Shelf Registration Statement would
materially adversely effect or would be improper in the view of (or improper
without disclosure in a prospectus), a proposed material financing, acquisition,
merger, reorganization or other similar transaction involving the Company.
(b) If the registration statement registering the Shares for resale is
suspended more than 60 consecutive or non-consecutive days in any 12-month
period thereafter, the Company shall promptly, in each respective month (and
prorated for partial months), issue to the Purchaser .01 shares of Common Stock
for every Share purchased in the Offering until the registration statement is
declared effective by the SEC (rounded up to the nearest share after aggregating
all shares held by such Offering Holder).
(c) As a condition to the inclusion of its Registrable Securities, each
Holder will furnish to the Company the information regarding the Holder and the
intended method of distribution of the securities as the Company may from time
to time request or as will be required in connection with any registration,
qualification or compliance referred to in this SECTION 9. Each Holder promptly
will furnish to the Company all information required to be disclosed in order to
make the information previously furnished by it to the Company not materially
misleading.
(d) Each Holder hereby covenants to the Company not to make any sale of
the Registrable Securities without effectively causing the prospectus delivery
requirements under the Securities Act to be satisfied and (2) if Registrable
Securities are to be sold by any method or in any transaction other than on
Nasdaq (or other national securities exchange, in the over the counter market,
in privately negotiated transactions, or in a combination of those methods, to
deliver to the Company an opinion of counsel to the Holder of such Registrable
Securities to the effect that the sale may be effected in accordance with the
Securities Act.
(e) The rights to cause the Company to register Registrable Securities
granted to the Holders by the Company under SECTION 9.2 may be assigned in whole
or in part by a Holder, provided, that: (i) the Company is furnished with an
opinion of counsel to the Holder of such Registrable Securities to the effect
that the transfer may be effected in accordance with the Securities Act; (ii)
the transfer involves not less than the lesser of all of the Holder's
Registrable Securities or 25,000 shares of Common Stock; (iii) the Holder gives
prior written notice to the Company; and (iv) the transferee agrees to comply
with the terms and provisions of this Agreement in a written instrument
satisfactory in form and substance to the Company and its counsel.
(f) No provision of this SECTION 9 may be waived (either generally or in
a particular instance, either retroactively or prospectively and either for a
specified period of time or indefinitely) or amended without the written consent
of each Holder.
10.0 INDEMNIFICATION. (a) The Company will indemnify, to the extent
permitted by law, each Holder of Registrable Securities and each director,
officer or controlling person of each Holder within the meaning of Section 15 of
the Securities Act against all losses, claims, damages, liabilities and
expenses, joint or several, (or action in respect thereof) including any of the
foregoing incurred in settlement of any
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<PAGE>
litigation, commenced or threatened, arising out of or based on (i) any untrue
statement or alleged untrue statement of a material fact contained in, or
information incorporated by reference into, any registration statement or
prospectus (or any amendment or supplement thereto) or any preliminary
prospectus prepared in connection with the registration contemplated by this
SECTION 10, (ii) any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iii) any failure by the Company to fulfill and perform any
agreement, covenant or undertaking herein, or (iv) any failure or breach of the
representations and warranties of the Company set forth in SECTION 6 to be
accurate as of the date hereof and as of the Closing Date, and will promptly
reimburse each Holder and each director, officer or controlling person of each
Holder for reasonable legal and other expenses incurred in connection with
investigating or defending any claim, loss, damage, liability or action as
incurred; provided however, that the Company will not be liable in any such case
to the extend that any such loss, claim, damage, liability or action arises
directly out of or is based primarily upon an untrue statement or alleged untrue
statement or by any omission or alleged omission made in such registration
statement or prospectus made in reliance upon and in conformity with written
information furnished by any Holder for use in the preparation of the
registration statement or prospectus, PROVIDED FURTHER, HOWEVER, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage, liability or action arises directly out of or based primarily
upon an untrue statement or omission made in any preliminary prospectus or final
prospectus if (i) such Holder failed to send or deliver a copy of the final
prospectus or prospectus, supplement with or prior to the delivery of written
confirmation of the sale of the Shares, and (ii) the final prospectus or
prospectus supplement would have corrected such untrue statement or omission.
The Indemnification obligation of the Company with respect to clause (iv) above,
will survive for a period ending 30 days after the Company files its Annual
Report on Form 10-K for the year ending December 31, 2001, unless a claim for
indemnification (whether or not fixed as to liability or liquidated as to
amount) shall be made with respect hereto prior to the end of such period, in
which case the right to indemnification shall survive until such claim is
satisfied, settled or dismissed.
(b) In connection with any registration statement in which a Holder of
Registrable Securities is participating, each Holder will furnish to the Company
in writing the information as is reasonably requested by the Company for use in
the Shelf Registration Statement or prospectus and will severally, but not
jointly, indemnify, to the extent permitted by law, the Company, its directors
and officers and each person or entity, if any, who controls the Company within
the meaning of Section 15 of the Securities Act, against any losses, claims,
damages, liabilities and expenses resulting from any untrue statement or alleged
untrue statement of a material fact or any omission or alleged omission of a
material fact required to be stated in the Shelf Registration Statement or
prospectus or any amendment thereof or supplement thereto or necessary to make
the statements therein not misleading, but only to the extent the losses,
claims, damages, liabilities or expenses are caused by an untrue statement or
alleged untrue statement or by an omission or alleged omission made in reliance
upon and in conformity with the written information specifically furnished by
the Holder to the Company for use in connection with the preparation of the
Shelf Registration Statement or prospectus; PROVIDED HOWEVER, that the indemnity
will not apply to the extent that the loss, claim, damage, liability or expense
arises out of or is based upon a violation of this Agreement by the Company. If
the offering pursuant to any registration is made through underwriters, each
Holder agrees to enter into an underwriting agreement in customary form with the
underwriters and to indemnify the underwriters, their officers and directors, if
any, and each person or entity who controls the underwriters within the meaning
of the Securities Act to the same extent as hereinabove provided with respect to
indemnification by the Holder. Notwithstanding the foregoing or any other
provision of this Agreement, in no event will a Holder of Registrable Securities
be liable for any losses, claims, damages, liabilities or expenses in excess of
the net proceeds received by such Holder upon the disposition of Registrable
Securities pursuant to the registration statement giving rise to such claim.
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<PAGE>
(c) Promptly after receipt by an indemnified party under SECTION 10.0(a)
or (b) of notice of any claim as to which indemnity may be sought, including the
commencement of any action or proceeding, the indemnified party will, if a claim
in respect thereof may be made against the indemnifying party under this
Section, promptly notify the indemnifying party in writing of the commencement
thereof; provided that the failure of the indemnified party to so notify the
indemnifying party will not relieve the indemnifying party from its obligations
under this Section except to the extent that the indemnifying party is adversely
affected by the failure. In case any action or proceeding is brought against any
indemnified party, and it notifies the indemnifying party of the commencement
thereof, the indemnifying party and its counsel will conduct the defense of any
action with counsel approved by the indemnified party (which approval will not
be unreasonably withheld or delayed) although the indemnified party will be
entitled to participate therein at the indemnified party's expense, and after
notice from the indemnifying party to the indemnified party of its election to
so assume the defense thereof, the indemnifying party will not be liable to the
indemnified party under that Section for any legal or any other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof (other than reasonable costs of investigation) unless incurred at the
written request of the indemnifying party. Notwithstanding the above, the
indemnified party will have the right to employ counsel of its own choice in any
action or proceeding (and be reimbursed by the indemnifying party for the
reasonable fees and expenses of the counsel and other reasonable costs of the
defense) if representation of the indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests or conflicts between the indemnified party and any other
party represented by the counsel in the action or proceeding or counsel to the
indemnified party is of the opinion that it would not be desirable for the same
counsel to represent both the indemnifying party and the indemnified party
because the representation might result in a conflict of interest; PROVIDED,
HOWEVER, that the indemnifying party will not in connection with any one action
or proceeding or separate but substantially similar actions or proceedings
arising out of the same general allegations, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys at any time for all
indemnified parties, except to the extent that local counsel, in addition to
regular counsel, is required in order to effectively defend against the action
or proceeding. An indemnifying party will not be liable to any indemnified party
for any settlement or entry of judgment concerning any action or proceeding
effected without the consent of the indemnifying party.
(d) If the indemnification provided for in SECTION 10.0(a) or (b) is
held by a court of competent jurisdiction to be unavailable under applicable law
to an indemnified party in respect of any losses, claims, damages or liabilities
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying the indemnified party, will contribute to the amount paid or
payable by the indemnified party as a result of the losses, claims, damages or
liabilities in the proportion as is appropriate to reflect the relative fault of
the Company on the one hand and of the indemnified party on the other in
connection with the statements or omissions which resulted in the losses,
claims, damages, or liabilities, as well as any other relevant equitable
considerations including the relative benefits to the parties. The relative
fault of the Company on the one hand and of the indemnified party on the other
will be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the Company or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent the statement or omission. The amount paid or
payable by a party as a result of the losses, claims, damages and liabilities
referred to above will be deemed to include, subject to the limitations set
forth in SECTION 10.0(C), any legal or other fees or expenses reasonably
incurred by the party in connection with investigating or defending any action
or claim. No person or entity guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) will be entitled to contribution
from any person or entity that is not guilty of fraudulent misrepresentation.
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<PAGE>
SECTION 11. MISCELLANEOUS.
11.1 NOTICES. Any notice or other communication given hereunder will be
deemed sufficient if in writing and sent by registered or certified mail, return
receipt requested, or delivered by hand against written receipt therefor,
addressed to:
If to the Company:
EPIQ Systems, Inc.
501 Kansas Avenue
Kansas City, Kansas 66105
Attn: Tom W. Olofson,
Chairman of the Board and Chief Executive Officer
With a copy to:
Gilmore & Bell, P.C.
2405 Grand Boulevard, Suite 1100
Kansas City, Missouri 64108
Attn: Richard M. Wright
If to Purchasers:
To the names and addresses on EXHIBIT A.
Notices will be deemed to have been given or delivered on the date of
mailing, except notices of change of address, which will be deemed to have been
given or delivered when received.
11.2 SUCCESSORS AND ASSIGNS. Subject to SECTION 9.6(e), this Agreement
will be binding upon and inure to the benefit of the parties hereto and to their
respective heirs, legal representatives, successors and assigns.
11.3 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding among the parties as to the subject matter hereof and merges and
supersedes all prior discussions, agreements and understandings of any and every
nature among them. Subject to SECTION 9.6(f), this Agreement may be amended only
by mutual written agreement of the Company and the Purchasers.
11.4 GOVERNING LAW. The terms and provisions hereof will be construed in
accordance with and governed by the laws of the State of Missouri without regard
to that State's conflicts of law principles.
11.5 SEVERABILITY. The holding of any provision of this Agreement to be
invalid or unenforceable by a court of competent jurisdiction will not affect
any other provision of this Agreement, which will remain in full force and
effect. If any provision of this Agreement is declared by a court of competent
jurisdiction to be invalid, illegal or incapable of being enforced in whole or
in part, the provision will be interpreted so as to remain enforceable to the
maximum extent permissible consistent with applicable law and the remaining
conditions and provisions or portions thereof will nevertheless remain in full
force and effect and enforceable to the extent they are valid, legal and
enforceable, and no provisions will be deemed dependent upon any other covenant
or provision unless so expressed herein.
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<PAGE>
11.6 CONFIDENTIALITY. This Agreement, the consideration paid for the
Shares, and the nature and terms of the transaction hereunder will remain
confidential and will not be disclosed by the parties without the written
consent of the parties to this Agreement, except to the extent such disclosure
is required to be made under any applicable court order, law, regulation or
other regulatory decree. Neither the Company nor any Holder will make any
reference to Credit Suisse Asset Management, LLC or Warburg Pincus Emerging
Growth Fund in any public statement with respect to the transactions
contemplated under this Agreement, except where required by law.
11.7 NO WAIVER. A waiver by either party of a breach of any provision of
this Agreement will not operate, or be construed, as a waiver of any subsequent
breach by that same party.
11.8 FURTHER ASSURANCES. The parties agree to execute and deliver all
further documents, agreements and instruments and take further action as may be
necessary or appropriate to carry out the purposes and intent of this Agreement.
Any documentary, stamp tax or similar issuance or transfer taxes due as a result
of the conveyance, transfer or sale of the Shares between any of the Purchasers
(or any of their permitted transferees), on the one hand, and the Company, on
the other hand, pursuant to this Agreement will be borne by the Company.
11.9 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, but all of which will
together constitute the same instrument.
11.10 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement creates in
any person not a party to this Agreement any legal or equitable right, remedy or
claim under this Agreement, and this Agreement is for the exclusive benefit of
the parties hereto. The parties expressly recognize that this Agreement is not
intended to create a partnership, joint venture or other similar arrangement
between any of the parties or their respective affiliates.
11.11 PUBLICITY RESTRICTIONS. No press release or other public disclosure
relating to the transactions contemplated by this Agreement may be issued or
made by or on behalf of any Purchaser without prior consultation with the
Company, except as required by applicable law, court process or stock exchange
rules, in which case the Purchaser required to make the disclosure will allow
the Company reasonable time (to the extent practicable) to comment thereon in
advance of the issuance.
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IN WITNESS WHEREOF, the undersigned have duly executed this Securities
Purchase Agreement as of the date first above written.
EPIQ SYSTEMS, INC.
By: /s/ Tom W. Olofson
------------------------------
Tom W. Olofson
Chairman of the Board
and Chief Executive Officer
WARBURG PINCUS EMERGING GROWTH FUND
By: /s/ Michael A. Pignataro
-------------------------------
Name: Michael A. Pignataro
Title: Chief Financial Officer
Number of Shares: 550,000
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Securities
Purchase Agreement as of the date first above written.
EPIQ SYSTEMS, INC.
By: /s/ Tom W. Olofson
-------------------------------
Tom W. Olofson
Chairman of the Board
and Chief Executive Officer
SECURITY ULTRA FUND
By: /s/ BrendA M. Harwood
-------------------------------
Brenda M. Harwood, Treasurer
Number of Shares: 76,000
SBL FUND, SERIES J
By: /s/ Brenda M. Harwood
------------------------------
Brenda M. Harwood, Treasurer
Number of Shares: 124,000
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Securities
Purchase Agreement as of the date first above written.
EPIQ SYSTEMS, INC.
By: /s/ Tom W. Olofson
------------------------------
Tom W. Olofson
Chairman of the Board
and Chief Executive Officer
ASHFORD CAPITAL PARTNERS, L.P.
By: Ashcap Corp., General Partner
By: /s/ Theodore H. Ashford
------------------------------
Theodore H. Ashford, President
Number of Shares: 60,000
ANVIL INVESTMENT ASSOCIATES, L.P.
By: Anvil Management Company, LLC
By: // Theodore H. Ashford
------------------------------
Theodore H. Ashford, Member
Number of Shares: 40,000
<PAGE>
IN WITNESS WHEREOF, the undersigned have duly executed this Securities
Purchase Agreement as of the date first above written.
EPIQ SYSTEMS, INC.
By: /s/ Tom W. Olofson
----------------------------------------------
Tom W. Olofson
Chairman of the Board
and Chief Executive Officer
WEST SIDE INVESTMENTS, INC.
By: /s/ KENNETH V. HAGER
----------------------------------------------
Kenneth V. Hager, Vice President and Treasurer
Number of Shares: 50,000
