EXHIBIT 10.2
AMENDMENT, WAIVER AND JOINDER
TO REGISTRATION RIGHTS AGREEMENT
This Amendment, Waiver and Joinder to Registration Rights Agreement
(this "Agreement") is made and entered into as of April 8, 1999 by and among
Iron Mountain Incorporated, a Delaware corporation (the "Company"), Xxxx X.
Xxxxx, Xxxxx X. Xxxxx, Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx Xxxxx Xxxx,
as co-trustees of the Xxxx Xxxxx Xxxx GST Trust, Xxxx Xxx Xxxxxxxxx, Xxxxxx X.
Xxxxx and Xxxxx Xxxxx Paszkeicz, as co-trustees of the Xxxxx Xxxxx Paszkeicz GST
Trust, Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx X. Xxxxx, Xx., as
co-trustees of the Xxxx X. Xxxxx, Xx. GST Trust, and Xxxx Xxx Xxxxxxxxx and
Xxxxxx X. Xxxxx, as co-trustees of the Xxxxxx X. Xxxxx GST Trust (collectively,
the "Sellers"), and each of the stockholders party to the Registration Rights
Agreement (as defined below) signatory hereto (the "Existing Stockholders").
WHEREAS, the Company and certain of its Stockholders are parties to
that certain Amended and Restated Registration Rights Agreement, dated as of
June 12, 1997, as heretofore supplemented (the "Registration Rights Agreement");
WHEREAS, in accordance with the terms of the Registration Rights
Agreement, the Company and the Sellers desire to admit the Sellers as a
Stockholder (this and other capitalized terms used herein without definition are
used with the meanings given to such terms in the Registration Rights Agreement)
under the Registration Rights Agreement;
WHEREAS, the Company, the Sellers and Data Base, Inc. are party to that
certain Stock Purchase Agreement, dated as of February 28, 1999 (the "Stock
Purchase Agreement"), pursuant to which the Company has agreed to file a
registration statement (the "Resale Registration Statement") under the
Securities Act and Rule 415 promulgated thereunder pursuant to which the Sellers
may sell shares of Common Stock to be issued to the Sellers under the Stock
Purchase Agreement ("Acquisition Shares"); and
WHEREAS, the Company has informed the Existing Stockholders that it is
contemplating an underwritten public offering of shares of its Common Stock
pursuant to its Registration Statement on Form S-3 (No. 333-44185) (the
"Universal Shelf"), and that it may use a portion of the net proceeds of such
offering to fund the repurchase of all or a portion of the Acquisition Shares,
in addition to or in lieu of filing the Resale Registration Statement;
NOW, THEREFORE, in consideration of the recitals, the mutual covenants
and agreements herein contained, and other valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
1. The Stock Purchase Agreement shall be an "Equity Agreement" for
purposes of the Registration Rights Agreement. Notwithstanding the foregoing,
only the Acquisition Shares to be issued to the Sellers thereunder shall be
"Registrable Securities" for purposes of the Registration Rights Agreement.
2. Each Seller hereby (i) joins in and becomes party to the
Registration Rights Agreement as a Stockholder, (ii) agrees to be bound by and
to perform all obligations of a
Stockholder under the Registration Rights Agreement, and (iii) agrees that such
Seller shall not assign such Seller's rights under the Registration Rights
Agreement other than as expressly permitted by Section 9(a) to the contrary
therein. For the avoidance of doubt, the Sellers collectively shall be
considered a "Significant Stockholder" for purposes of the Registration Rights
Agreement.
3. Pursuant to Section 1(b) of the Registration Rights Agreement, the
Sellers as a Significant Stockholder shall have the right to demand that the
Company effect registration of all or part of the Registrable Securities held by
the Sellers pursuant to said Section 1(b) on one occasion; provided, however,
that such demand may not be made until the first anniversary of the closing
under the Stock Purchase Agreement unless the Company has not consummated a
public offering (the "Primary Offering") on or before the date which is 270 days
after the closing in respect of which either (i) the Sellers have piggyback
registration rights under Section 1(a) of the Registration Rights Agreement or
(ii) (a) the Company offers to the Sellers to apply a portion of the net
proceeds from the Primary Offering to acquire the Acquisition Shares (at a
purchase price equal to the public offering price less underwriting discounts
and commissions) and (b) the Company repurchases not less than seventy-five
percent (75%) of the Acquisition Shares that the Sellers have agreed to sell to
the Company at the public offering price less underwriting discounts and
commissions, in which case the Sellers shall be entitled to exercise such demand
on or after the 271st day following such closing.
4. Notwithstanding anything in the Registration Rights Agreement, the
rights of the Sellers under the Registration Rights Agreement will terminate on
the sixth anniversary of the date hereof.
5. Section 8 of the Registration Rights Agreement is hereby amended by
adding the following definitions to be inserted in alphabetical order in such
section:
"Data Base Agreement" shall mean that certain Stock Purchase Agreement
dated as of February 28, 1999 among the Company, the Luger Stockholders and Data
Base, Inc.
"Luger Stockholders" shall mean Xxxx X. Xxxxx, Xxxxx X. Xxxxx, Xxxx Xxx
Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx Xxxxx Xxxx, as co-trustees of the Xxxx Xxxxx
GST Trust, Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx Xxxxx Paszkeicz, as
co-trustees of the Xxxxx Xxxxx Paszkeicz GST Trust, Xxxx Xxx Xxxxxxxxx, Xxxxxx
X. Xxxxx and Xxxx X. Xxxxx, Xx., as co-trustees of the Xxxx X. Xxxxx, Xx. GST
Trust, and Xxxx Xxx Xxxxxxxxx and Xxxxxx X. Xxxxx, as co-trustees of the Xxxxxx
X. Xxxxx GST Trust.
"Shelf Registration Statement" shall mean a registration statement
under the Securities Act to register a maximum aggregate offering amount of the
Company's securities, including the Common Stock, to be offered by the Company
from time to time on a delayed basis, including without limitation its
Registration Statement on Form S-3 (No. 333-44185) .
6. Section 1(a) of the Registration Rights Agreement is hereby amended
by adding the following sentence as the last sentence in clause (iii) of Section
1(a): "Notwithstanding the preceding sentence, until the earlier to occur of (i)
the first anniversary of the closing under the Data Base Agreement, (ii) the
consummation, after the closing under the Data Base Agreement, of a public
offering of Common Stock by the Company in respect of which Stockholders had an
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opportunity to include Registrable Securities pursuant to this Section 1(a) or
(iii) the consummation, after the closing under the Data Base Agreement, of a
public offering of Common Stock by the Company effected pursuant to a Shelf
Registration Statement in respect of which the Company shall have offered to
apply a portion of the net proceeds of which to acquire from the Luger
Stockholders the Registrable Securities held by the Luger Stockholders at a
purchase price equal to the public offering price less underwriting discounts
and commissions (it being understood that (w) the Company shall be entitled to
sell all shares of Common Stock it desires for its account prior to selling
shares of Common Stock to satisfy its offer to repurchase Registrable Securities
from the Luger Stockholders, (x) if the Luger Stockholders accept such offer,
the Company shall use its reasonable best efforts to sell a sufficient quantity
of Common Stock in such offering to provide for the shares of Common Stock it
intended to sell for its own account as well as to repurchase such Registrable
Shares from the Luger Stockholders, subject, however, to downsizing the offering
upon receipt from the underwriters of an opinion of the type referenced to in
the immediately preceding sentence, (y) notwithstanding such offer and
acceptance or agreement to use reasonable best efforts, the Company shall not be
required to consummate such offering and it may, at any time prior to the
closing of such offering, determine not to offer the securities to which the
Shelf Registration Statement relates without liability to the Luger Stockholders
and (z) if the Company, due to any such downsizing, is unable to acquire at
least 75% of the Registrable Securities that the Luger Stockholders agreed to
sell to the Company at the public offering price less underwriting discounts and
commissions, then this clause (iii) shall not be deemed to have been satisfied
until the Company shall have consummated an additional offering under a Shelf
Registration Statement that satisfies the conditions set forth in this clause
(iii) and this parenthetical, other than clause (z) of this parenthetical), in
the event of any limitation on the number of shares of Common Stock to be
imposed on Stockholders, the number of shares of Common Stock to be included in
such offering by Stockholders shall be included in the following order: (i)
first, the Registrable Securities held by the Luger Stockholders and (ii)
second, pro rata among the holders of Registrable Securities, other than the
Luger Stockholders based on the value (based upon the proposed public offering
price) of the respective numbers or amount of Registrable Securities as to which
registration has been requested by such Stockholders."
7. Section 5(a)(i) is hereby amended and restated in its entirety to
read as follows:
"(i) shall continue until the later to occur of the following:
(A) such time as Xxxxxxxx & Worcester LLP or other counsel for the
Company knowledgeable in securities law matters and reasonably
acceptable to such Stockholder has delivered a written opinion to the
Company and such Stockholder (or group of related Stockholders) to the
effect that such Stockholder has no further obligation to comply with
the registration requirements of the Securities Act or to deliver a
prospectus meeting the requirements of Section 10(a)(3) of the
Securities Act in connection with further sales by such Stockholder of
Registrable Securities, and (B) such Stockholder owns less than 3% of
the outstanding Common Stock and is able to sell all of the Registrable
Securities owned by him pursuant to the provisions of Rule 144 under
the Securities Act in a three-month period (but, notwithstanding the
foregoing, in no event will the Company's obligations with respect to
rights of registration of the Luger Stockholders and each Stockholder
who is a party to this Agreement on the date of this Amendment,
terminate as a result of this clause (i) until the third anniversary of
the date such Stockholder or group of related Stockholders became party
to this Agreement); and"
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8. Each of the Existing Stockholders hereby consents, on behalf of all
Stockholders, to the Resale Registration Statement and waives, on behalf of all
Stockholders, any right it or he may have under the Registration Rights
Agreement to include Registrable Securities in the Resale Registration
Statement.
9. Each of the Existing Stockholders hereby waives, on behalf of all
Stockholders, any right it or he may have under the Registration Rights
Agreement to include Registrable Securities in any offering or offerings of
Common Stock to be effected by the Company pursuant to the Universal Shelf so
long as the Company offers to acquire from the Luger Stockholders all or any
portion of Registrable Securities held by them as contemplated by clause (iii)
of the sentence being added to the Registration Rights Agreement in accordance
with Paragraph 6 hereof.
10. The provisions of Paragraph 9 hereof shall be effective upon the
date first written above. The provisions of Paragraphs 1 through and including 8
hereof shall be effective upon the closing under the Stock Purchase Agreement.
11. Except to the extent specifically amended and supplemented hereby,
the provisions of the Registration Rights Agreement shall remain unmodified. The
Registration Rights Agreement, as amended and supplemented hereby, is confirmed
as being in full force and effect. This Agreement may be executed in any number
of counterparts, which together shall constitute one instrument, shall be
governed by and construed in accordance with the laws (other than the conflict
of laws rules) of the Commonwealth of Massachusetts and shall bind and inure to
the benefit of the parties hereto and their respective permitted successors and
assigns.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Xxxxxxx Xxxxx
Name:
Title:
SCHOONER CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
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/s/ C. Xxxxxxx Xxxxx
C. Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
/s/ B. Xxxxxx Xxxxxxxx
B. Xxxxxx Xxxxxxxx
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
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/s/ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx
Xxxxx Xxxx, as co-trustees of the XXXX XXXXX
XXXX GST TRUST
By: /s/ Xxxx Xxx Xxxxxxxxx
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
By: /s/ Xxxx Xxxxx Xxxx
Xxxx Luger Xxxx, Trustee
Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx
Xxxxx Paszkeicz, as co-trustees of the XXXXX
XXXXX PASZKEICZ GST TRUST
By: /s/ Xxxx Xxx Xxxxxxxxx
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
By: /s/ Xxxxx Xxxxx Paszkeicz
Xxxxx Xxxxx Paszkeicz, Trustee
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Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx
X. Xxxxx, Xx., as co-trustees of the XXXX X.
XXXXX, XX. GST TRUST
By: /s/ Xxxx Xxx Xxxxxxxxx
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
By: /s/ Xxxx X. Xxxxx, Xx.
Xxxx X. Xxxxx, Xx., Trustee
Xxxx Xxx Xxxxxxxxx and Xxxxxx X. Xxxxx, as
co-trustees of the XXXXXX X. XXXXX GST TRUST
By: /s/ Xxxx Xxx Xxxxxxxxx
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx, Trustee
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