EXHIBIT 2A
CONFORMED COPY
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT No. 1 TO AGREEMENT AND PLAN OF MERGER is made as of
April 1, 1997, among Iron Mountain Incorporated, a Delaware corporation
("Acquiror"), IM-1 Acquisition Corp., a Delaware corporation and a wholly owned
Subsidiary of Acquiror ("Acquiror Merger Subsidiary"), and Safesite Records
Management Corporation, a Delaware corporation (the "Company").
W I T N E S S E T H:
WHEREAS, Acquiror, Acquiror Merger Subsidiary and the Company are
parties to an Agreement and Plan of Merger dated as of February 19, 1997 (the
"Merger Agreement"); and
WHEREAS, Acquiror, Acquiror Merger Subsidiary and the Company have
agreed to amend the Merger Agreement as set forth herein pursuant to Section 7.3
of the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing, the parties hereto,
intending to be legally bound, agree as follows:
1. Section 1.8 of the Merger Agreement is hereby amended by inserting
the following sentence immediately after the first sentence thereof:
"B. Xxxxxx Xxxxxxxx shall be appointed or elected as a Director of
Acquiror, to hold office in accordance with the Restated Certificate of
Incorporation and By-Laws of Acquiror."
2. Section 2.4 of the Merger Agreement is hereby deleted and the
following new Section 2.4 is inserted in its place:
"Section 2.4. Option Securities.
(a) As soon as reasonably practicable after the Effective
Time, each holder of an Option Security who elects to shall receive,
subject to the indemnification provisions of Article 8 hereof, (i)
subject to clause (ii) below, in respect of any such Option Security or
portion thereof which is exercisable at the Effective Time (including
those which will become exercisable by virtue of the consummation of
the
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Merger) (1) a non-qualified option to acquire shares of Acquiror Stock
under Acquiror's 1995 Stock Incentive Plan, which option for Acquiror
Stock shall (A) have an exercise price per share determined by dividing
the exercise price per share of the applicable Option Security by the
Stock Conversion Number and (B) entitle the holder to purchase that
number of shares equal to the product of (x) the number of shares
subject to such Option Security which as of the Effective Time is
exercisable and (y) the Stock Conversion Number, and (2) cash in the
amount of the product of (x) the number of shares subject to such
Option Security which as of the Effective Time is exercisable and (y)
the Cash Conversion Number, and (ii) in respect of any such Option
Security or portion thereof which is not exercisable at the Effective
Time and in respect of those Option Securities to acquire 17,500 shares
of Company Stock recently granted to the five individuals identified in
Section 3.13(b) of the Disclosure Schedule, a non-qualified option to
acquire shares of Acquiror Stock under Acquiror's 1995 Stock Incentive
Plan at an exercise price and in an amount affording the holder
equivalent value for the Option Security being exchanged, which option
for Acquiror Stock shall (1) have an exercise price per share
determined by dividing (x) the exercise price per share of the
applicable Option Security by (y) the quotient of the Share Price
divided by the Determination Price, and (2) entitle the holder to
purchase that number of shares as equals the product of (x) the number
of shares subject to such Option Security which as of the Effective
Time is not exercisable and (y) the quotient of the Share Price divided
by the Determination Price. In addition, each option to acquire
Acquiror Stock issued in accordance with this Section 2.4 shall be
exercisable (subject to the terms of such Option Security and
Acquiror's 1995 Stock Incentive Plan) on the date the applicable Option
Security would have been exercisable and otherwise be subject to the
terms and conditions of the Acquiror 1995 Stock Incentive Plan (it
being understood that the terms of the Acquiror option agreement, as to
any employee, other than the Principal Stockholders, of the Company who
is not employed by Acquiror or any of its Affiliates on the first
anniversary of the Closing Date, shall not (a) make it a condition to
exercise such option that such employee be in compliance with an
Acquiror confidentiality or non-competition agreement and (b) require
such employee to pay to Acquiror the excess of the fair market value on
the day of exercise over the exercise price as a result of being
employed by a competitor of Acquiror within two years after the
exercise of such option). Notwithstanding anything to the contrary
herein, the cash to be received herein by any holder of an Exercisable
Option prior to the termination of the Escrow Indemnity Period shall be
adjusted to give full effect to the indemnification provisions of
Article 8 hereof.
(b) In lieu of issuing any option to acquire a fractional
share of Acquiror Stock, Acquiror shall convert a holder's right to
receive an option pursuant to this Section 2.4 into a right to receive
an option to acquire the nearest whole number of shares of Acquiror
Stock (with no adjustment to any cash amount received in connection
with the conversion of an Exercisable Option).
(c) Notwithstanding the foregoing, in lieu of issuing cash in
respect of exercisable Option Securities, Acquiror reserves the right,
in its sole discretion, subject to notification to the Company not less
than ten (10) days prior to the Closing
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Date, to exchange each vested and exercisable Option Security solely
for an option to acquire Acquiror Stock, the terms and conditions
(including, without limitation, the amount and exercise price per
share) of which will be determined in accordance with clause (a)(ii)
above.
3. Article 2 of the Merger Agreement is hereby further amended by
inserting the following new Section 2.6 immediately following Section 2.5:
"Section 2.6 Standstill.
(a) Until the first anniversary of the Effective Time, except
as permitted by Acquiror's Restated By-Laws, any Person who receives or
is entitled to receive at the Effective Time any shares of Acquiror
Stock pursuant to Section 2.1 shall not Transfer (as such term is
defined in Exhibit 2.6 hereto), and Acquiror shall not be required to
register the Transfer of, the number of shares, rounded upward to the
nearest whole share (the "Subject Shares"), of Acquiror Stock equal to
the product of (1) the quotient obtained by dividing (x) the "Lock-up
Value" by (y) the product of (A) the Common Stock Amount and (B) the
lesser of the Closing Price and the Determination Price multiplied by
(2) the Stock Merger Consideration received by such Person in
connection with the Merger. The "Lock-up Value" shall mean one half
(1/2) of the sum of (x) the product of the Common Stock Amount and the
lesser of the Closing Price and the Determination Price plus (y) the
Cash Amount. The "Closing Price" shall mean the closing price per share
of Acquiror Stock for the trading day immediately prior to the
Effective Time. The closing price for such trading day shall be the
last quoted sale price or, if not so quoted, the average of the low bid
and high asked prices on the Nasdaq National Market System.
(b) Each certificate representing Subject Shares issued
pursuant to the Merger shall bear the following legend:
"The shares represented by this certificate may not
be transferred prior to [first anniversary date of the
Effective Time to be inserted] except as otherwise permitted
by the Restated By-Laws of the Corporation. A copy of the
Restated By-Laws of the Corporation will be furnished without
charge upon written request addressed to the Corporation at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention:
Chief Executive Officer."
(c) In order to implement the provisions of this Section 2.6,
the Restated By-Laws of Acquiror shall be amended on or prior to the
Closing Date to include the provisions as to the limitations on the
transferability of the Acquiror Stock set forth in Exhibit 2.6 hereto."
4. Section 8.2 of the Merger Agreement is hereby amended by inserting
the words "and from the cash, if any, issued with respect to Exercisable Options
pursuant to Section 2.4" immediately after the words "Exchange Merger
Consideration" appearing at the end of the third line thereof.
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5. The Merger Agreement is hereby further amended by inserting a new
Exhibit 2.6 thereto substantially in the form of Exhibit 2.6 hereto.
6. Each of Acquiror, Acquiror Merger Subsidiary and the Company
represents and warrants that all requisite corporate action necessary for the
valid execution and delivery of this Amendment No. 1 has been duly and
effectively taken.
7. Each capitalized term used herein without definition shall have the
same meaning herein as is given to such term in the Merger Agreement.
8. The Merger Agreement as amended hereby is ratified and confirmed in
all respects and shall continue in full force and effect.
9. This Amendment No. 1 may be executed in one or more counterparts,
and by the different Parties hereto in separate counterparts, each of which when
executed shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, Acquiror, Acquiror Merger Subsidiary and the
Company have caused this Amendment No. 1 to be executed as of the date first
written above by their respective officers thereunto duly authorized.
IRON MOUNTAIN INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer
IM-1 ACQUISITION CORP.
By: /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Treasurer
SAFESITE RECORDS MANAGEMENT
CORPORATION
By: /s/ B. Xxxxxx Xxxxxxxx
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Name: B. Xxxxxx Xxxxxxxx
Title: Chairman
By: /s/ Xxxxx X. Xxxxxx, Xx.
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Name: Xxxxx X. Xxxxxx, Xx.
Title: President
EXHIBIT 2.6
FORM OF AMENDMENT TO ACQUIROR'S RESTATED BY-LAWS
ARTICLE XII
RESTRICTIONS ON TRANSFER OF CERTAIN SHARES OF CAPITAL STOCK OF THE CORPORATION
Section 1. Restrictions on Transfer. Any Person who receives any shares
of Common Stock of the Corporation (the "Merger Securities") issued pursuant to
the Agreement and Plan of Merger, dated as of February 19, 1997, by and among
the Corporation, IM-1 Acquisition Corp. and Safesite Records Management
Corporation, as amended (the "Merger Agreement"), shall not Transfer (as defined
herein), and the Corporation shall not be required to register the Transfer of,
the number of shares, rounded upward to the nearest whole share (the "Subject
Shares"), of the Merger Securities equal to the product of (1) the quotient
obtained by dividing (x) the "Lock-up Value" by (y) the product of (A) the
Common Stock Amount and (B) the lesser of the Closing Price and the
Determination Price multiplied by (2) the Stock Merger Consideration received by
such Person in connection with the Merger, until the first anniversary date of
the effective date of the Merger Agreement (the "Effective Time"), except as
otherwise allowed by the Board of Directors of the Corporation in its sole
discretion. The "Lock-up Value" shall mean one half (1/2) of the sum of (x) the
product of the Common Stock Amount and the lesser of the Closing Price and the
Determination Price plus (y) the Cash Amount. The "Closing Price" shall mean the
closing price per share of Acquiror Stock for the trading day immediately prior
to the Effective Time. The closing price for such trading day shall be the last
quoted sale price or, if not so quoted, the average of the low bid and high
asked prices on the Nasdaq National Market System. Capitalized terms used herein
and not otherwise defined shall have the meanings prescribed therefor in the
Merger Agreement. The term "Transfer" means any indirect or direct transfer,
offer to sell, sale, assignment, grant of an option to acquire, pledge, or other
disposition.
Section 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Subject Shares of Merger Securities issued upon
transfer that the shares represented by such certificates are subject to the
restrictions on transfer and registration of transfer imposed in this Article
XII.
Section 3. Termination of Restrictions on Transfers. The provisions of
this Article XII shall terminate in their entirety on the first anniversary of
the Effective Time.
