Exhibit 1.1
IRON MOUNTAIN INCORPORATED
3,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
March 30, 1998
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
PRUDENTIAL SECURITIES INCORPORATED
as Representatives of the several Underwriters
named in Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Iron Mountain Incorporated (the "Company"), a corporation organized
and existing under the laws of Delaware, proposes, subject to the terms and
conditions stated herein, to issue and sell to the several Underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 3,500,000 shares (the
"Firm Shares") of its common stock, par value $.01 per share (the "Common
Stock"), and, for the sole purpose of covering over-allotments, if any, in
connection with the sale of the Firm Shares, at the option of the Underwriters,
up to an additional 525,000 shares (the "Additional Shares") of Common Stock.
The Firm Shares and the Additional Shares are collectively referred to herein as
the "Shares." The Shares are more fully described in the Registration Statement
referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, including a prospectus, on
Form S-3 (No. 333- 44185), for the registration of the Shares and certain
other securities described therein that may be offered from time to time by
the Company under the Securities Act of 1933, as amended (the "Securities
Act"). Such registration statement, including the prospectus, financial
statements and schedules, exhibits and all other documents filed as a part
thereof,
as amended at the time of effectiveness of the registration statement,
including any information deemed to be a part thereof as of the time of
effectiveness pursuant to paragraph (b) of Rule 430A of the rules and
regulations of the Commission under the Securities Act (the "Regulations")
or incorporated by reference therein, is herein called the "Registration
Statement" and the prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Regulations, is herein called the "Basic
Prospectus." The term "Prospectus" means the Basic Prospectus as
supplemented by the prospectus supplement dated the date hereof (the
"Prospectus Supplement") specifically relating to the Shares, in the form
first used to confirm sales of the Shares, filed pursuant to Rule 424 or
Rule 430A under the Securities Act. The term "preliminary prospectus" as
used herein means a preliminary prospectus supplement specifically relating
to the Shares, together with the Basic Prospectus. Any reference herein to
the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the effective date of the Registration Statement, the date of such
preliminary prospectus or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include (i) the filing of
any document under the Exchange Act after the effective date of the
Registration Statement, the date of such preliminary prospectus or the date
of the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed.
(b) At the time of the effectiveness of the Registration Statement or
the effectiveness of any post-effective amendment to the Registration
Statement, when the Prospectus is first filed with the Commission pursuant
to Rule 424(b) of the Regulations, when any supplement to or amendment of
the Prospectus is filed with the Commission, when any document that was or
will be incorporated by reference in the Registration Statement is or was
filed under the Exchange Act, and at the First Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects with
the applicable provisions of the Securities Act and the Regulations and the
Exchange Act and the rules and regulations thereunder and did not or will
not contain an untrue statement of a material fact and did not or will not
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein (i) in the case of the Registration
Statement, not misleading and (ii) in the case of the Prospectus, in light
of the circumstances under which they were made, not misleading. When any
related preliminary prospectus was first filed with the Commission (whether
filed as part of the Registration Statement for the registration of the
Shares or any amendment thereto or pursuant to Rule 424(b) of the
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Securities Act and the Regulations and the
Exchange Act and the rules and regulations thereunder and did not contain
an untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order
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to make the statements therein in light of the circumstances under which
they were made not misleading. The Prospectus and any preliminary
prospectus delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to XXXXX, except to the extent permitted
by Regulation S-T. No representation and warranty is made in this
subsection (b), however, with respect to any information contained in or
omitted from the Registration Statement or the Prospectus or any related
preliminary prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of any Underwriter through the Representatives
as herein stated expressly for use in connection with the preparation
thereof.
(c) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has been no
material adverse change or any development involving a prospective material
adverse change in the business, prospects, properties, operations,
condition (financial or other) or results of operations of the Company and
its subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, and since the date of the latest
balance sheet presented in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has incurred or undertaken
any liabilities or obligations, direct or contingent, which are material to
the Company and its subsidiaries taken as a whole, except for liabilities
or obligations which are reflected in the Registration Statement and the
Prospectus.
(d) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied by the Company. The Registration
Statement has become effective; no stop order suspending the effectiveness
of the Registration Statement is in effect, and no proceedings for such
purpose are pending before or, to the knowledge of the Company, threatened
by the Commission; and no order preventing or suspending the use of any
preliminary prospectus has been issued by the Commission. Copies of such
Registration Statement and amendments thereto (including documents
incorporated by reference therein), the Basic Prospectus and all
preliminary prospectuses contained therein have been delivered to the
Representatives.
(e) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are filed
with the Commission, complied and will comply in all material respects with
the requirements of the Exchange Act and the rules and regulations of the
Commission thereunder, and, when read together with the other information
in the Prospectus, at the time the Registration Statement and any
amendments thereto become effective and at the Closing Date (as hereinafter
defined), will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
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(f) The Company and each of its subsidiaries has been duly
incorporated or formed, is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction of
incorporation or formation and has the corporate power and authority to
carry on its business as it is currently being conducted and to own, lease
and operate its properties, and each is duly qualified and is in good
standing as a foreign corporation or limited liability company authorized
to do business in each jurisdiction in which the nature of its business or
its ownership or leasing of property requires such qualification, except
where the failure to be so qualified would not have a material adverse
effect (financial or otherwise) on the Company and its subsidiaries, taken
as a whole.
(g) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and
are owned directly or indirectly by the Company (except for one director's
qualifying share in Arcus Data Security Limited), free and clear of any
security interest, claim, lien, encumbrance or adverse interest of any
nature, except for the security interests granted under the Second Amended
and Restated Credit Agreement dated September 26, 1997 between the Company
and The Chase Manhattan Bank, as Agent, as amended.
(h) This Agreement and the transactions contemplated herein have been
duly and validly authorized by the Company, and this Agreement has been
duly and validly executed and delivered by the Company and is a valid and
binding agreement of the Company enforceable in accordance with its terms
except as (i) rights to indemnity and contribution hereunder may be limited
by applicable law, (ii) the enforceability thereof may be limited by
bankruptcy, insolvency, fraudulent conveyance or similar laws affecting
creditors' rights generally and (iii) rights of acceleration and the
availability of equitable remedies may be limited by equitable principles
of general applicability.
(i) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with
the terms of this Agreement (and to the extent delivered in physical form,
duly countersigned by the Company's Transfer Agent and Registrar), will be
duly and validly issued and outstanding, fully paid and nonassessable and
will not have been issued in violation of or be subject to any preemptive
rights or similar rights to subscribe for or to purchase securities of the
Company. No holder of securities of the Company has any right which has not
been fully waived in writing to request or require the Company to register
the offer or sale of any securities owned by such holder under the
Securities Act in connection with the public offering contemplated by this
Agreement.
(j) The authorized capital stock of the Company, including the Shares,
conforms as to legal matters to the description thereof contained in the
Registration Statement and the Prospectus.
(k) The Agreement and Plan of Merger between the Company and
InterMation, Inc. dated as of February 24, 1998, as may be amended from
time to time (the "InterMation
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Agreement"), has been duly authorized, executed and delivered by the
Company and, assuming the due authorization, execution and delivery by
InterMation, Inc., is a valid and binding agreement of the Company
enforceable in accordance with its terms. The execution, delivery and
performance of the InterMation Agreement and compliance by the Company with
all the provisions thereof and the consummation of the transactions
contemplated thereby will not require any consent, approval, authorization
or other order of, or any filing with, any court, regulatory body,
administrative agency or other governmental body (other than filings under
the Exchange Act and the rules and regulations thereunder) and will not
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws or comparable organizational
documents of the Company or any of its subsidiaries or any agreement,
indenture or other instrument to which it or any of its subsidiaries is a
party or by which it or any of its subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any of
its subsidiaries or their respective property.
(l) Neither the Company nor any of its subsidiaries is in violation of
its respective charter or by-laws or comparable organizational documents or
in default (and no condition exists which, with notice or lapse of time or
both, would constitute a default) in the performance of any obligation,
agreement or condition contained in any bond, debenture, note or any other
evidence of indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound.
(m) The execution, delivery and performance of this Agreement and
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such may
be required under the Securities Act or under the securities or Blue Sky
laws of the various states or jurisdictions of or outside the United States
in connection with the offer and sale of the Shares), and will not conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to the terms of, the charter or by-laws or comparable
organizational documents of the Company or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound, or violate or conflict with any laws,
administrative regulations or rulings or court decrees applicable to the
Company, any of its subsidiaries or their respective property.
(n) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or to which any of their respective
property is subject, and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated.
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(o) Neither the Company nor any of its subsidiaries is currently in
violation of any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of the
Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, prospects, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries has such material
permits, licenses, franchises and authorizations of governmental or
regulatory authorities ("permits"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its respective business;
the Company and each of its subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof which might result in any material
adverse change in the business, prospects, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole; and,
except as described in the Prospectus, such permits contain no restrictions
that materially interfere with the business or operations of the Company or
any of its subsidiaries as currently conducted.
(q) In the ordinary course of its business, when the Company or any of
its subsidiaries acquires a fee interest in a parcel of real property or
enters into a real property lease, the Company conducts a review (which may
be, but not in all cases is, a Phase I Study), as it relates to such real
property, of the effect of Environmental Laws on the business, operations
and properties of the Company and its subsidiaries, in the course of which
it attempts to identify and evaluate associated costs and liabilities, if
any (including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably concluded
that such associated costs and liabilities would not, singly or in the
aggregate, have a material adverse effect (financial or otherwise) on the
Company and its subsidiaries, taken as a whole.
(r) Except as otherwise set forth in the Prospectus or such as are not
material to the business, prospects, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Prospectus as being owned by it. All leases to which the Company or any
of its subsidiaries is a party are valid and binding and no default by the
Company or any of its subsidiaries, or to the knowledge of the Company or
any of its subsidiaries, by any other party, has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries,
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taken as a whole, and the Company and its subsidiaries enjoy peaceful and
undisturbed possession under all such leases to which any of them is a
party as lessee with such exceptions as do not materially interfere with
the use made or proposed to be made by the Company or such subsidiary.
(s) The Company and each of its subsidiaries maintains, with insurers
of recognized standing, reasonably adequate insurance against property and
casualty loss, general liability, business interruption and such other
losses and risks, in each case, in such amounts as are prudent and
customary in the business in which they are engaged.
(t) Xxxxxx Xxxxxxxx LLP are independent public accountants with
respect to the Company within the meaning of the Securities Act.
(u) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial position
of the Company and its subsidiaries on the basis stated in the Registration
Statement and the Prospectus at the respective dates or for the respective
periods to which they apply; such statements and related schedules and
notes have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved, except as
disclosed therein; and the other financial and statistical information and
data set forth in the Registration Statement and the Prospectus (and any
amendment or supplement thereto) is, to the Company's knowledge, in all
material respects, accurately presented and prepared on a basis reasonably
consistent with the books and records of the Company.
(v) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes (Chapter 92-198,
Laws of Florida).
(w) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus and all of the outstanding shares of capital stock of the
Company 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 rights.
(x) There are no outstanding subscriptions, rights, warrants, options,
calls, convertible securities, commitments of sale or liens related to or
entitling any person to purchase or otherwise to acquire any shares of the
capital stock of, or other ownership interest in, the Company or any
subsidiary thereof except as otherwise disclosed in the Prospectus.
(y) The Company has disclosed in the Prospectus, or otherwise
disclosed to the Representatives in writing, any business relationships or
related party transactions of the type that is required to be disclosed by
Item 404 of Regulation S-K of the Commission.
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(z) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any state or local labor relations board,
and no significant grievance or arbitration proceeding arising out of or
under any collective bargaining agreement is pending against the Company or
any of its subsidiaries or, to the best knowledge of the Company,
threatened against any of them, and (ii) no significant strike, labor
dispute, slowdown or stoppage pending against the Company or any of its
subsidiaries or, to the best knowledge of the Company, threatened against
it or any of its subsidiaries except for such actions specified in clause
(i) or (ii) above, which, singly or in the aggregate, could not reasonably
be expected to have a material adverse effect (financial or otherwise) on
the Company and its subsidiaries, taken as a whole.
(aa) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability, (iii)
access to assets is permitted only in accordance with management's general
or specific authorization and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(bb) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided.
(cc) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information currently employed by them in connection with
their respective businesses, and neither the Company nor any such
subsidiary has received any notice of infringement of or conflict with
asserted rights of any third party with respect to any of the foregoing
which, singly or in the aggregate, if the subject of an unfavorable
decision, ruling or finding, would result in any material adverse change in
the business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, except as described in
or contemplated by the Prospectus.
(dd) The Company is not, and upon consummation of the transactions
contemplated by this Agreement will not be, an "investment company" or a
company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "Investment Company Act"),
or be subject to registration under the Investment Company Act.
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(ee) The Company and each of its affiliates has not taken and will not
take, directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares and neither the Company, nor
any of its affiliated purchasers (as defined in Rule 100 of Regulation M
under the Exchange Act) will take any action prohibited by Regulation M
under the Exchange Act.
2. Purchase, Sale and Delivery of the Shares. (a) Subject to the terms
and conditions herein set forth and on the basis of the representations,
warranties, covenants and agreements herein contained, the Company agrees to
sell 3,500,000 Firm Shares to the Underwriters, and each Underwriter agrees,
severally, but not jointly, to purchase from the Company the number of Firm
Shares, set forth opposite the name of such Underwriter on Schedule I hereto,
plus any additional number of Firm Shares which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 9 hereof.
Payment of the purchase price for, and delivery of, the Firm Shares,
shall be made at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:30 a.m. (New York time) on the third
business day (unless postponed in accordance with this Agreement or, if the Firm
Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act,
after 4:30 p.m., New York time, the fourth business day) following the date of
this Agreement or at such other time or on such other date but not later than
ten business days after such date as shall be mutually agreed in writing between
the Company and Bear, Xxxxxxx & Co. Inc. on behalf of the Representatives (the
time and date of such payment and delivery being herein called the "First
Closing Date"). The Company shall deliver or cause to be delivered the Firm
Shares in such denominations and registered in such names as Bear, Xxxxxxx & Co.
Inc. on behalf of the Representatives may request in writing at least two full
business days prior to the First Closing Date. Payment shall be made to the
Company on the First Closing Date by certified or official bank check or checks
drawn in federal funds or same day funds payable to the order of the Company or
by wire transfer in same day funds to the Company, against delivery to Bear,
Xxxxxxx & Co. Inc. on behalf of Representatives, on behalf of the Underwriters,
of the Firm Shares. The Company will permit the Representatives to examine and
package such certificates for delivery at least one full business day prior to
the First Closing Date. For purposes of this Section 2, the term "business day"
shall mean any day except Saturday, Sunday and any day which shall be a legal
holiday or a day on which banking institutions are authorized or required by law
or government action to close in the State of New York.
(b) In addition, the Company has granted to the Underwriters, solely
for the purpose of covering over-allotments, if any, in the sale of Firm Shares,
an option (the "Option") to purchase all or any portion of the Additional
Shares, in pro rata proportion with respect to the Firm Shares sold by the
Company hereunder, exercisable on or before the thirtieth day following the date
of this Agreement, by written notice by Bear, Xxxxxxx & Co. Inc. on behalf of
the Representatives to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the Option is being exercised and the
date and time, as reasonably determined by Bear, Xxxxxxx & Co. Inc. on behalf of
the Representatives, when the Additional Shares are to be delivered (such date
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and time being herein sometimes referred to as the "Additional Closing Date;"
the First Closing Date and the Additional Closing Date may be referred to herein
as the "Closing Date"); provided, however, that the Additional Closing Date
shall not be earlier than the First Closing Date or, if the Additional Closing
Date is to occur on a date other than the First Closing Date, earlier than the
third business day after the date on which the Option shall have been exercised
nor later than the eighth business day after the date on which the Option shall
have been exercised (unless such time and date are postponed in accordance with
the provisions of this Agreement). Certificates for the Additional Shares shall
be registered in such name or names and in such authorized denominations as
Bear, Xxxxxxx & Co. Inc. on behalf of the Representatives may request in writing
at least two full business days prior to the Additional Closing Date. The
Company will permit the Representatives to examine and package such certificates
for delivery at least one full business day prior to the Additional Closing
Date.
Payment of the purchase price for, and delivery of, the Additional
Shares shall be made at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 9:30 a.m. (New York time) on the Additional
Closing Date (unless postponed in accordance with this Agreement). Payment for
the Additional Shares shall be made to the Company by certified or official bank
check or checks in federal funds or similar same day funds payable to the order
of the Company or by wire transfer in same day funds to the Company, against
delivery to Bear, Xxxxxxx & Co. Inc. on behalf of the Representatives, on behalf
of the Underwriters, of the Additional Shares.
(c) The price to be paid by the Underwriters for both the Firm Shares
and the Additional Shares shall be $33.02 per Share.
3. Offering. Upon your authorization of the release of the Shares, the
several Underwriters propose to offer the Shares for sale to the public
initially upon the terms set forth in the Prospectus.
4. Agreements of the Company. The Company agrees with the Underwriters
that:
(a) Immediately following the execution of this Agreement, the Company
will prepare a Prospectus Supplement setting forth the number of Shares
covered thereby and their terms not otherwise specified in the Basic
Prospectus, the price at which the Shares are to be purchased by the
Underwriters from the Company, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Shares; and the Company will promptly transmit copies of
the Prospectus Supplement to the Commission for filing pursuant to Rule
424(b) of the Regulations and will furnish to the Representatives as many
copies of the Prospectus (including such Prospectus Supplement) as they
shall reasonably request.
(b) The Company will make no further amendment or supplement to the
Registration Statement or Prospectus, except as permitted herein; and, if
at any time when a prospectus relating to the Shares is required to be
delivered under the Securities Act, any event shall have occurred as a
result of which the Prospectus as then amended and supplemented would, in
the judgment of Bear, Xxxxxxx & Co. Inc. on behalf of the
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Representatives, include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or supplement the
Registration Statement or Prospectus in order to comply with the Securities
Act or the Regulations or to file under the Exchange Act so as to comply
therewith any document incorporated by reference in the Registration
Statement or the Prospectus or in any amendment thereof or supplement
thereto, the Company will notify the Representatives, afford the
Representatives a reasonable opportunity to comment on any such proposed
amendment or supplement, upon the Representatives' request, prepare and
furnish without charge to each Underwriter and to any dealer in securities
as many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus, which
will correct such statement or omission or effect such compliance, and use
its best efforts to have any amendment to the Registration Statement
declared effective as soon as possible.
(c) During the period in which a prospectus is required to be
delivered under the Securities Act or Exchange Act in connection with sales
of the Shares by an underwriter or dealer, the Company will advise the
Representatives promptly (i) of receipt by the Company of any notification
with respect to the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threat of any proceeding for that
purpose; (ii) of any downgrading in the rating accorded any of the
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Securities
Act), or any public announcement that any such organization has under
surveillance or review its rating of any such securities (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading of such rating) as soon as the
Company learns of any such downgrading or public announcement; (iii) after
it receives notice of the issuance by the Commission of any stop order or
of any order preventing or suspending the use of any preliminary prospectus
or the Prospectus; or (iv) of any request by the Commission for the
amending or supplementing of the Registration Statement and any preliminary
prospectus or the Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus or
suspending any such qualification, the Company will use its reasonable
efforts to obtain its withdrawal.
(d) The Company will furnish the Representatives with such number of
manually signed copies of the Registration Statement, including all
exhibits, amendments and documents incorporated by reference therein, as
reasonably requested by the Representatives and, during the period in which
a prospectus is required to be delivered under the Securities Act or
Exchange Act in connection with sales of the Shares by an underwriter or
dealer, to furnish the Underwriters copies of any preliminary prospectus
and Prospectus, and all amendments and supplements, in such quantities as
the Representatives may from time to time reasonably request.
11
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Securities Act) to its security holders and to the
Underwriters as soon as practicable, but in any event not later than 45
days after the end of its fiscal quarter in which the first anniversary
date of the date of the Prospectus occurs, an earnings statement of the
Company and its subsidiaries (which need not be audited) complying with the
provisions of Rule 158 of the Regulation covering a period of at least
twelve consecutive months beginning after the effective date of the
Registration Statement.
(f) The Company will use its best efforts to cause the Shares to be
included in the Nasdaq Stock Market's National Market system.
(g) The Company will not (and will cause its affiliates not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result in the
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares and neither the Company, nor
any of its affiliated purchasers (as defined in Rule 100 of Regulation M
under the Exchange Act) will take any action prohibited by Regulation M
under the Exchange Act.
(h) The Company will apply the net proceeds of the issue and sale of
the Shares to be sold by the Company as set forth under the caption "Use of
Proceeds" in the Prospectus.
(i) During a period of three years from the date of the Prospectus,
the Company will furnish to Bear, Xxxxxxx & Co. Inc. on behalf of the
Underwriters as soon as available a copy of each report or other publicly
available information of the Company mailed to the security holders of the
Company or filed with the Commission and such other publicly available
information concerning the Company and its subsidiaries as the Underwriters
may reasonably request.
(j) The Company will use its best efforts to do and perform, or cause
to be done or performed, all things required or necessary to be done and
performed under this Agreement by the Company prior to the Closing Date,
and to satisfy all conditions precedent to the delivery of the Shares.
(k) The Company will endeavor in good faith, in cooperation with the
Underwriters, at or prior to the time of the date of the Prospectus, to
qualify, to the extent necessary, the Shares for offering and sale under
the securities laws relating to the offering or sale of the Shares of such
jurisdictions as the Underwriters may designate and to maintain such
qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute a
general consent to service of process.
(l) During the period of 90 days from the date of the Prospectus, the
Company will not, directly or indirectly, without the prior written consent
of Bear, Xxxxxxx & Co. Inc., offer, sell, contract to sell, swap, make any
short sale, pledge, establish an open "put equivalent position" within the
meaning of Rule 16a-1(h) under the Exchange Act, grant any
12
option to purchase or otherwise dispose (or publicly announce the intention
to do any of the foregoing) of, or file or announce the filing of any
registration statement in connection with the offer or sale of, any shares
of Common Stock of the Company (or any securities convertible into,
exercisable for or exchangeable for shares of Common Stock of the Company),
and the Company will obtain the undertaking of each of the directors,
executive officers and other officers listed in the "Management" section of
the Prospectus Supplement not to engage in any of the aforementioned
transactions on their own behalf. Notwithstanding the foregoing, during
such period the Company may (i) issue Common Stock upon the exercise of
presently outstanding stock options and issue options to purchase shares of
Common Stock pursuant to any of its stock option plans existing on the date
of this Agreement, (ii) issue Common Stock pursuant to the InterMation
Agreement, and (iii) enter into and perform acquisition agreements that may
obligate the Company to issue up to an aggregate 1,000,000 shares of Common
Stock pursuant thereto and issue shares of Common Stock pursuant to such
agreements, so long as the persons receiving or to receive such shares in
accordance with this clause (iii) agree in writing to be bound to the same
degree that Company is bound pursuant to this Section 4(l) for any period
remaining under the Company's agreement hereunder.
(m) During the period when the Prospectus is required to be delivered
under the Securities Act or the Exchange Act, the Company will file all
documents required to be filed with the Commission pursuant to Section 13,
14 or 15 of the Exchange Act within the time periods required by the
Exchange Act and the rules and regulations thereunder.
5. Expenses. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Sections 9 or 11 hereof, including all costs and expenses incident
to (a) the printing or other production of documents with respect to the
transactions, including any costs of printing and filing with the Commission of
any preliminary prospectus and the Prospectus and the printing and distribution
of any underwriting documents, including this Agreement, (b) all arrangements
relating to the delivery to the Underwriters of copies of the foregoing and
related documents, (c) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (d) the
costs incident to the issuance, transfer and delivery of the Shares to the
Underwriters, including any stamp, value-added or transfer or other taxes
payable thereon, (e) the preparation, issuance and delivery to the Underwriters
of any stock certificates evidencing the Shares, (f) the qualification of the
Shares under state or foreign securities or "blue sky" laws, including the costs
of printing and mailing a preliminary and final "Blue Sky Survey" and the filing
fees and reasonable fees and disbursements of counsel for the Underwriters
relating thereto (if any), (g) all expenses and listing fees in connection with
the listing of the Shares on the Nasdaq National Market system, (h) the costs
and charges (including fees and disbursements of counsel) of the transfer agent
and registrar, and (i) any meetings with prospective investors in the Shares
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters).
13
6. Conditions to Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) The Registration Statement shall continue to be effective as of
the First Closing Date; the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Regulations under the Securities Act; no
stop order suspending the Registration Statement or the Prospectus or any
part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of Bear, Xxxxxxx & Co. Inc. on
behalf of the Representatives.
(b) All the representations and warranties of the Company contained in
this Agreement shall be true and correct on the First Closing Date with the
same force and effect as if made on and as of the First Closing Date.
(c) (i) Since the date of the latest balance sheet included in the
Prospectus, there shall not have been any material adverse change, or any
development involving a prospective material adverse change, in the
business, prospects, financial condition or results of operations of the
Company and its subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, except as otherwise described in the
Prospectus, (ii) since the date of the latest balance sheet included in the
Prospectus, there shall not have been any material change, or any
development involving a prospective material adverse change, in the capital
stock or in the long-term debt of the Company from that set forth in the
Prospectus, (iii) the Company and its subsidiaries shall have no liability
or obligation, direct or contingent, which is material to the Company and
its subsidiaries, taken as a whole, other than those described in the
Prospectus and (iv) on the First Closing Date you shall have received a
certificate dated the First Closing Date signed by C. Xxxxxxx Xxxxx, in his
capacity as Chairman of the Board and Chief Executive Officer, and by Xxxx
X. Xxxxx, Xx., in his capacity as Executive Vice President and Chief
Financial Officer of the Company, confirming the matters set forth in
paragraphs (b), (c) and (i) of this Section 6.
(d) The Underwriters shall have received on the First Closing Date an
opinion (satisfactory to the Underwriters and counsel for the
Underwriters), dated the First Closing Date, of Xxxxxxxx & Worcester LLP,
counsel for the Company, to the effect that:
(i) each of the Company and its subsidiaries set forth on
Schedule II hereto (the "Significant Subsidiaries") has been duly
incorporated or formed, is validly existing as a corporation or
limited liability company in good standing under the laws of its
jurisdiction of incorporation or formation and has the corporate or
limited liability company power and authority required to carry on its
business as it is currently being conducted and to own, lease and
operate its properties;
14
(ii) each of the Company and the Significant Subsidiaries is duly
qualified and is in good standing as a foreign corporation or limited
liability company authorized to do business in each jurisdiction in
which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on the Company
and its subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's Significant Subsidiaries
have been duly and validly authorized and issued and are fully paid
and non-assessable, and except as set forth in the Prospectus are
owned beneficially by the Company, free and clear of any perfected
security interest, or, to the knowledge of such counsel, any other
security interest, claim, lien, encumbrance or adverse interest of any
nature;
(iv) the Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus and all of the outstanding shares of capital 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 or similar rights to subscribe for or to purchase
securities of the Company contained in the Amended and Restated
Certificate of Incorporation or the Amended and Restated By-Laws of
the Company or in any agreements of the Company of which such counsel
has knowledge. The Firm Shares have been duly and validly authorized
and, when issued and delivered to and paid for by the Underwriters in
accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable and will not have been issued in violation of
or subject to any preemptive rights or similar rights to subscribe for
or to purchase securities of the Company contained in the Amended and
Restated Certificate of Incorporation or the Amended and Restated
By-Laws of the Company or in any agreements of the Company of which
such counsel has knowledge. To such counsel's knowledge, no holder of
securities of the Company has any right which has not been fully
waived in writing to request or require the Company to register the
offer or sale of any securities owned by such holder under the
Securities Act in connection with the public offering contemplated by
this Agreement. The Common Stock and the Firm Shares conform to the
descriptions thereof contained in the Registration Statement and the
Prospectus;
(v) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms except as (A) rights
to indemnity and contribution hereunder may be limited by applicable
law, (B) enforceability thereof may be limited by bankruptcy,
insolvency, fraudulent conveyance or similar laws affecting creditors'
rights generally and (C) the availability of equitable remedies may be
limited by equitable principles of general applicability;
15
(vi) the statements under the captions "Description of Capital
Stock" and "Plan of Distribution" in the Prospectus, as amended or
supplemented, insofar as such statements constitute a summary of legal
matters, documents or proceedings referred to therein, fairly present
the information called for with respect to such legal matters,
documents and proceedings;
(vii) to such counsel's knowledge, neither the Company nor any of
its subsidiaries is in violation of its respective charter or by-laws
or comparable organizational documents and, to such counsel's
knowledge, neither the Company nor any of its subsidiaries is in
default in the performance of any obligation, agreement or condition
contained in the InterMation Agreement, except as such defaults would
not, singly or in the aggregate, result in a material adverse change
in the business, prospects, financial condition or results of
operations of the Company or any of its subsidiaries, taken as a
whole;
(viii) The execution, delivery and performance of this Agreement
and compliance by the Company with all the provisions hereof, and the
consummation of the transactions contemplated hereby will not require
any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Securities Act and under the
securities or Blue Sky laws of the various states or jurisdictions of
or outside the United States in connection with the offer and sale of
the Shares), and will not conflict with or constitute a breach of any
of the terms or provisions of, or a default under, the charter or
by-laws or comparable organizational documents of the Company or any
of its Significant Subsidiaries or any agreement, indenture or other
instrument known to such counsel to which it or any of its Significant
Subsidiaries is a party or by which it or any of its Significant
Subsidiaries or their respective property is bound, or violate or
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company, any of its subsidiaries or their
respective property;
(ix) such counsel does not know (A) of any legal or governmental
proceeding pending or threatened to which the Company or any of its
subsidiaries is a party or to which any of their respective property
is subject which is required to be described in the Prospectus and is
not so described, or (B) of any contract or other document which is
required to be described in the Prospectus and is not so described;
(x) to such counsel's knowledge, (A) neither the Company nor any
of its subsidiaries is in violation of any federal or state law or
regulation relating to the storage, handling or transportation of
hazardous or toxic materials, (B) the Company and its subsidiaries
have received all permits, licenses or other approvals required of
them under applicable federal and state environmental laws and
regulations to conduct their respective businesses as described in the
Prospectus and (C) the Company and each of its subsidiaries is in
compliance with all terms and conditions of any such permit, license
or approval, except any such violation of law or
16
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals as would not, singly or in the
aggregate, result in a material adverse change in the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole;
(xi) the Company is not, and upon consummation of the
transactions contemplated by this Agreement will not be, an
"investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act or subject
to registration under the Investment Company Act;
(xii) such counsel believes that (except for financial
statements, schedules and other financial and statistical information
contained therein) (1) the Registration Statement (or any documents
incorporated by reference therein), does not contain and, at the time
the Registration Statement became effective, did not contain any
untrue statement of a material fact or omit or omitted to state a
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, and (2) the Prospectus, as amended or
supplemented, if applicable, (or any documents incorporated by
reference therein), as of its date and at the date of such opinion,
did not and does not contain any untrue statement of a material fact
or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(xiii) The Registration Statement has become effective under the
Act, and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings therefor have been initiated or threatened
by the Commission and all filings required by Rule 424(b) of the
Regulations have been made;
(xiv) The Registration Statement, the Prospectus and each
amendment thereof or supplement thereto (except the financial
statements, schedules and other financial and statistical information
contained or incorporated by reference therein), as of their
respective effective or issue dates, complied as to form in all
material respects with the requirements of the Securities Act and the
Regulations;
(xv) Each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the
Prospectus or any amendment thereof or supplement thereto (except the
financial statements, schedules and other financial and statistical
information contained or incorporated by reference therein) when they
were filed with the Commission complied as to form in all material
respects with the requirements of the Securities Act or the Exchange
Act, as applicable, and the respective rules and regulations of the
Commission thereunder; and
17
(xvi) The Common Stock currently outstanding is approved for
quotation on, and the Shares to be sold under this Agreement to the
Underwriters are duly authorized for quotation, on the Nasdaq National
Market system.
In giving such opinion with respect to the matters covered by
clause (xii) such counsel may state that their opinion and belief are
based upon their participation in the preparation of the Prospectus
and any amendments or supplements thereto and review and discussion of
the contents thereof, but are without independent check or
verification except as specified. In giving such opinion with respect
to certain of the matters covered by clauses (i) and (iii) relating to
the Company's subsidiaries organized under the laws of the State of
California, if any, such counsel may rely on the opinion of local
counsel satisfactory to the Underwriters.
(e) The Underwriters shall have received on the First Closing Date an
opinion (satisfactory to Bear, Xxxxxxx & Co. Inc. on behalf of the
Underwriters and counsel for the Underwriters), dated the First Closing
Date, of Xxxxx X. Xxxxxx, Esq., general counsel for the Company, as to the
matters referred to in clauses (vi), (viii), (ix) and (xii) of the
foregoing paragraph (d) and as to the following additional matters:
(i) to such counsel's knowledge, neither the Company nor any of
its subsidiaries is in violation of its respective charter or by-laws
or comparable organizational documents and, to such counsel's
knowledge, neither the Company nor any of its subsidiaries is in
default in the performance of any obligation, agreement or condition
contained in any bond, debenture, note or other evidence of
indebtedness or in any other agreement, indenture or instrument
material to the conduct of the business of the Company and its
subsidiaries, taken as a whole, to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or
their respective properties are bound;
(ii) all leases to which the Company or any of its subsidiaries
is a party relating to real property in Massachusetts or California
are valid and binding and no default has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operations of
the Company and its subsidiaries taken as a whole, and the Company and
its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such subsidiary; and
(iii) to such counsel's knowledge, the Company and each of its
subsidiaries has such permits, licenses, franchises and authorizations
of governmental or regulatory authorities ("permits"), including,
without limitation, under any applicable Environmental Laws, as are
necessary to own, lease and operate its respective properties and to
conduct its respective business in the manner described in the
Prospectus; to such counsel's knowledge without having conducted any
independent investigation, the Company and each of its subsidiaries
has fulfilled and performed
18
all of its material obligations with respect to such permits and no
event has occurred which allows, or after notice or lapse of time
would allow, revocation or termination thereof or would result in any
other material impairment of the rights of the holder of any such
permit, except in each case as would not, singly or in the aggregate,
have a material adverse effect (financial or otherwise) on the Company
and its subsidiaries, taken as a whole and, except as described in the
Prospectus, such permits contain no restrictions that materially
interfere with the business or operations of the Company or any of its
subsidiaries as currently conducted.
In giving such opinion with respect to the matters covered by clause
(xii) of the foregoing paragraph (d) such counsel may state that his
opinion and belief are based upon his participation in the preparation of
the Prospectus and any amendments or supplements thereto and review and
discussion of the contents thereof, but are without independent check or
verification except as specified.
(f) The opinions of Xxxxxxxx & Worcester LLP and Xxxxx X. Xxxxxx
described in paragraphs (d) and (e) above, respectively, shall be rendered
to the Underwriters at the request of the Company and shall so state
therein.
(g) The Underwriters shall have received on the First Closing Date an
opinion, dated the First Closing Date, of Xxxxx, Day, Xxxxxx & Xxxxx,
counsel for the Underwriters, as to such matters as the Underwriters shall
reasonably request.
(h) The Underwriters shall have received a letter or letters on and as
of the date of this Agreement (each, an "initial letter"), in form and
substance satisfactory to the Representatives, from Xxxxxx Xxxxxxxx LLP
(with respect to Iron Mountain Incorporated, Security Archives of
Minnesota, Wellington Financial Services, Inc. Safesite Records Management
Corporation and Data Securities International, Inc.), Xxxxx, Xxxxxx &
Xxxxxxx, P.A. (with respect to Allegiance Business Archives, Ltd.), Xxxxxx,
Xxxxxxxxx & Xxxxx (with respect to Records Retention/File Sale, LP),
Xxxxxxx Xxxxxx, C.P.A. (with respect to Image Solutions, Inc. (d/b/a
Professional Solutions, Inc.)), Ernst & Young LLP (with respect to Arcus
Technology Services, Inc. and HIMSCORP, Inc. and subsidiaries), and
Xxxxxxx, Xxxxxxx & Xxxxxx (with respect to Concorde Group, Inc. and Xxxx
Trucker Trust), each independent public accountants, with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus and a letter or letters on and as
of the First Closing Date, in form and substance satisfactory to the
Representatives, from Xxxxxx Xxxxxxxx LLP, Xxxxx, Xxxxxx & Xxxxxxx, P.A.,
Xxxxxx, Xxxxxxxxx & Xxxxx, Xxxxxxx Xxxxxx, C.P.A., Ernst & Young LLP and
Xxxxxxx, Xxxxxxx & Xxxxxx confirming the information contained in the
initial letter or letters provided by such accountants.
(i) The Company shall not have failed at or prior to the First Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
First Closing Date.
19
(j) Prior to the First Closing Date, the Company shall have furnished
to the Representatives such further information, certificates and documents
as the Representatives may reasonably request.
(k) The Company shall have delivered to you prior to the date of this
Agreement the agreements executed in accordance with Section 4(l) hereof.
(l) At the First Closing Date, the Firm Shares shall have been
approved for quotation on the Nasdaq National Market system.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 shall not
be in all material respects reasonably satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, all obligations of the
Underwriters hereunder may be canceled by the Underwriters at, or at any time
prior to, the First Closing Date and the obligations of the Underwriters to
purchase the Additional Shares may be canceled by the Underwriters at, or at any
time prior to, the Additional Closing Date. Notice of such cancellation shall be
given to the Company in writing, or by telephone, telex or telegraph, confirmed
in writing.
The respective obligations of the several Underwriters to purchase and pay
for any Additional Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the Firm Shares and the First Closing Date shall be deemed to refer to such
Additional Shares and the Additional Closing Date, respectively.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any and all losses, liabilities, claims, damages and
expenses whatsoever as incurred (including, but not limited to, reasonable
attorneys' fees and any and all reasonable expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Securities Act, the Exchange Act or otherwise, insofar
as such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, as
originally filed or any amendment thereof, or any related preliminary prospectus
or the Prospectus or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; provided, however, that
the Company shall not be liable in any such case to the extent, but only to the
extent, that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or omission, or alleged untrue statement
or omission, made therein in reliance upon and in conformity with written
information furnished to the Company by, or on behalf of, any Underwriter
through the Representatives expressly for use therein. This indemnity obligation
will
20
be in addition to any liability which the Company may otherwise have,
including under this Agreement.
(b) Each Underwriter, severally, but not jointly, agrees to indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company, and each other person, if any, who controls the Company
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, against any losses, liabilities, claims, damages and expenses
whatsoever as incurred (including but not limited to attorneys' fees and any and
all reasonable expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), jointly or severally, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or omission, or alleged untrue statement or omission, made
therein in reliance upon and in conformity with written information furnished to
the Company by, or on behalf of, any Underwriter through the Representatives
expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. The Company acknowledges that (i) the statements set forth in the
last paragraph of the inside front cover of the Prospectus and (ii) the names of
the Underwriters listed in the table within, and the second to last paragraph
of, the Underwriting Section of the Prospectus constitute the only information
furnished to the Company in writing by, or on behalf of, any Underwriter
expressly for use in the Prospectus or in any amendment thereof or supplement
thereto.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7, or otherwise). In case any
such action is brought against any indemnified party, and such indemnified party
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in the defense of such action, and to the
extent such indemnifying party may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of
21
commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties (it being understood, however, that the indemnifying party
shall not be liable in any one action or separate but substantially similar or
related actions in the same jurisdiction for the expenses of more than one
separate counsel and one additional local counsel). Anything in this subsection
to the contrary notwithstanding, an indemnifying party shall not be liable for
any settlement of any claim or action effected without its written consent
(which consent may not be unreasonably withheld). No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability or claims
that are the subject matter of such proceeding.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting any contribution received from persons who may
also be liable for contribution, including officers and directors of the Company
and persons who control the Company within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act) to which the Company, on
the one hand, and one or more of the Underwriters, on the other hand, may be
subject as incurred in such proportions as is appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Shares or, if such
allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
but also the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative benefits received
by the Company, on the one hand, and the Underwriters, on the other hand, shall
be deemed to be in the same proportion as (x) the total proceeds from the
offering of the Shares (net of discounts to the Underwriters but before
deducting expenses) received by the Company and (y) the total discounts and
commissions received by the Underwriters bear to the total price to the public
of the Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand, and of the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand, or the Underwriters, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it
22
would not be just and equitable if contribution pursuant to this Section 8 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this Section 8, no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding the provisions of this Section 8,
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares purchased by it were offered
to investors exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Section 8, each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20(a) of the Exchange Act shall have the same
rights to contribution as the Underwriters, and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act and each officer and each director of the
Company shall have the same rights to contribution as the Company. Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against another party or parties, notify each party
or parties from whom contribution may be sought, but the omission to so notify
such party or parties shall not relieve the party or parties from whom
contribution may be sought from any obligation it or they may have under this
Section 8 or otherwise, except to the extent that it has been prejudiced in any
material respect by the omission to so notify. No party shall be liable for
contribution with respect to any action or claim settled without its consent
(which consent may not be unreasonably withheld).
9. Default by an Underwriter.
(a) If one or more of the Underwriters shall fail at each applicable
Closing Date to purchase the Shares which it or they are obligated to purchase
under this Agreement (the "Defaulted Shares") and such Defaulted Shares do not
exceed in the aggregate 10% of the aggregate principal amount of the Shares,
then each non-defaulting Underwriter shall purchase an aggregate amount of the
Defaulted Shares equal to the proportion that the aggregate principal amounts of
Shares to be purchased by such Underwriter as set forth opposite such
Underwriter's name on Schedule I hereto bears to the aggregate principal amount
of Shares to be purchased by all non-defaulting Underwriters.
(b) Notwithstanding the foregoing, if the Defaulted Shares equal or
exceed in the aggregate 10% of the aggregate principal amount of the Shares,
then the non-defaulting Underwriters shall have the right, within 48 hours after
the Closing Date, to make arrangements for one or more of such non-defaulting
Underwriters to purchase all, but not less than all, of the Defaulted Shares in
such amounts as may be agreed upon among such non-defaulting Underwriters and
upon the terms herein set forth; provided that if the non-defaulting
Underwriters shall not have completed such arrangements within such 48-hour
period, then this Agreement shall terminate without liability on the part of the
non-defaulting Underwriters or the Company.
No action taken pursuant to this Section 9 shall relieve any
defaulting Underwriter from liability in respect of its default.
23
In the event of any such default which does not result in a
termination of this Agreement, any of the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Prospectus
or in any other documents or arrangements.
10. Survival of Representations and Agreements. All representations
and warranties, covenants and agreements of the Underwriters or the Company
contained in this Agreement, including, without limitation, the agreements
contained in Sections 4 and 5, the indemnity agreements contained in Section 7
and the contribution agreements contained in Section 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of the Underwriters or any controlling person thereof or by or on behalf
of the Company, any of its officers and directors or any controlling person
thereof, and shall survive delivery of and payment for the Shares to and by the
Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 2 (to the extent provided in Section 9), 5, 7 and 8 and
this Section 10 shall survive the termination of this Agreement, including
termination pursuant to Section 9 or 11.
11. Termination. (a) The Representatives shall have the right to
terminate this Agreement at any time prior to the Closing Date:
(i) if any domestic or international event or act or occurrence has
materially disrupted, or in the Representatives' sole opinion will in the
immediate future materially disrupt, the market for the Company's
securities or the United States or international securities markets in
general;
(ii) if trading on the New York Stock Exchange, the American Stock
Exchange or the National Association of Securities Dealers Automated
Quotation System shall have been suspended or materially limited;
(iii) if a banking moratorium has been declared by any United States
federal or New York State authority or if any new restriction materially
adversely affecting the distribution of the Shares shall have become
effective;
(iv) if the United States becomes engaged in hostilities or there is
an escalation of hostilities involving the United States or there is a
declaration of a national emergency or war by the United States; or
(v) if there shall have been any other change in political, financial
or economic conditions, if the effect of such event in the sole judgment of
the Representatives is to make it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Shares on the terms
contemplated by the Prospectus.
(b) Any notice of termination pursuant to this Section 11 shall be
made to the Company by telephone, telex or telegraph, confirmed in writing by
letter.
24
(c) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to Section 9(b) or 11(a)), or if the
sale of the Shares provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth herein is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or comply with the provision hereof, the Company
will, subject to demand by the Representatives, reimburse the Underwriters for
all out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
12. Notice. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, telecopied, telexed or telegraphed and
confirmed in writing, to such Underwriter, c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxxxxxx Xxxxxxxxx; with a
copy to Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxxx; if sent to the Company, shall be mailed,
delivered, telecopied, telexed or telegraphed and confirmed in writing to Iron
Mountain Incorporated, 000 Xxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Chief Executive Officer; with a copy to Xxxxxxxx & Worcester
LLP, Xxx Xxxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxx.
13. Consent to Jurisdiction; Waiver of Immunities. (a) The Company:
(i) irrevocably submits to the jurisdiction of any New York State or
federal court sitting in New York City and any appellate court from any
thereof in any action or proceeding arising out of or relating to this
Agreement or any other document delivered hereunder;
(ii) irrevocably agrees that all claims in respect of any such action
or proceeding may be heard and determined in such New York State court or
in such federal court; and
(iii) irrevocably waives, to the fullest extent permitted by law, the
defense of an inconvenient forum to the maintenance of such action or
proceeding and irrevocably consents, to the fullest extent permitted by
law, to service of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by registered or
certified mail, postage prepaid, to the Company at its address as provided
in Section 12 of this Agreement, such service to become effective five days
after such mailing;
(b) Nothing in this Section 13 shall affect the right of any person to
serve legal process in any other manner permitted by law or affect the right of
any person to bring any action or proceeding against the Company or its
properties in the courts of other jurisdictions.
14. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term
25
"successors and assigns" shall not include a purchaser, in its capacity as such,
of Shares from the Underwriters.
15. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York for contracts made and to
be fully performed in such state without regard to the conflict of law
principles thereof.
16. Counterparts. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: /s/ C. Xxxxxxx Xxxxx
--------------------------------------------
Name: C. Xxxxxxx Xxxxx
Title: Chairman and Chief Executive Officer
Accepted as of the date first above written:
BEAR, XXXXXXX & CO. INC.
XXXXXXX XXXXX & COMPANY, L.L.C.
PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: H.C. Xxxxxxx Xxxx
Title: Senior Managing Director
On behalf of themselves and the other
Underwriters named on Schedule I hereto
SCHEDULE I
Number of Additional Shares
Total Number of Firm Shares to be Purchased if
Name of Underwriter To Be Purchased Maximum Option is Exercised
------------------- --------------------------- ---------------------------
Bear, Xxxxxxx & Co., Inc. 992,000 148,800
Xxxxxxx Xxxxx & Company, L.L.C. 991,500 148,725
Prudential Securities Incorporated 991,500 148,725
Xxxxx & Company Incorporated 70,000 10,500
Chase Securities Inc. 70,000 10,500
Xxxxxxx Lynch, Pierce, Xxxxxx & 70,000 10,500
Xxxxx Incorporated
PaineWebber Incorporated 70,000 10,500
Xxxxxxxxxxx Xxxxxxx Securities, Inc. 70,000 10,500
Xxxxxxxxx Securities Corp. 35,000 5,250
Cantor, Xxxxx & Xxxxxxxx, Inc. 35,000 5,250
Xxxx Xxxxxx & Associates 35,000 5,250
First Analysis Securities Corporation 35,000 5,250
Xxxxxxx Xxxxxx Xxxxx Inc. 35,000 5,250
--------- --------
Total 3,500,000 525,000
SCHEDULE II
List of Significant Subsidiaries
--------------------------------
Name State of Incorporation
---- ----------------------
Iron Mountain Records Management, Inc. Delaware
Criterion Atlantic Property, Inc. Delaware
Iron Mountain Data Protection Services, Inc. Massachusetts
Iron Mountain Records Management of Maryland, Inc. Delaware
Iron Mountain Records Management of Ohio, Inc. Delaware
Iron Mountain/Safesite, Inc. Delaware
Arcus, Inc. Delaware
Arcus Data Security, Inc. California
Arcus Staffing Resources, Inc. Delaware
