EXHIBIT 10.1
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
AMONG
IRON MOUNTAIN INCORPORATED
and
THE STOCKHOLDERS NAMED HEREIN
JUNE 12, 1997
TABLE OF CONTENTS
Section 1. Registration of Securities............................................................................1
(a) Registration by the Company.........................................................................1
(b) Registration at Stockholders' Request...............................................................2
(c) Registration Generally..............................................................................5
(d) Restrictions on Registration.......................................................................10
Section 2. Conditions to Registration...........................................................................11
Section 3. Indemnification......................................................................................12
(a) Indemnification by the Company.....................................................................12
(b) Indemnification by Holders of Registrable Securities...............................................12
(c) Procedure..........................................................................................13
(d) Contribution.......................................................................................14
Section 4. Exchange Act Registration............................................................................15
Section 5. Termination of Registration Obligations..............................................................16
Section 6. Limitation on Registration Rights of Others..........................................................17
Section 7. Lock-Up Agreement....................................................................................17
Section 8. Definitions..........................................................................................17
Section 9. Miscellaneous........................................................................................22
(a) Assignment; Successors and Assigns.................................................................22
(b) Specific Performance; Other Rights and Remedies...................................................22
(c) Expenses...........................................................................................22
(d) Entire Agreement...................................................................................23
(e) Waivers; Amendments................................................................................23
(f) Notices............................................................................................23
(g) Severability.......................................................................................24
(h) Counterparts.......................................................................................24
(i) Section Headings...................................................................................24
(j) Governing Law......................................................................................24
(k) Further Acts.......................................................................................24
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
-----------------------------
This Amended and Restated Registration Rights Agreement (this
"Agreement") is made and entered into as of June 12, 1997 by and among Iron
Mountain Incorporated, a Delaware corporation (the "Company"), and the
undersigned Persons which have heretofore acquired Registrable Securities
(individually a "Stockholder" and collectively the "Stockholders" which term is
further defined in Section 9(a)).
WHEREAS, the Company and certain of the Stockholders entered into that
certain Registration Rights Agreement dated as of December 14, 1990 (the
"Original Agreement"); and
WHEREAS, the Company and the Stockholders desire to amend and restate
in its entirety the Original Agreement and admit additional Stockholders as set
forth herein.
NOW, THEREFORE, in consideration of the recitals, the mutual covenants
and agreements herein contained, and other valuable consideration, the receipt,
adequacy and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, do hereby covenant and agree as follows:
Section 1. Registration of Securities.
(a) Registration by the Company. If at any time or from time
to time the Company shall propose to file on its behalf or on behalf of any of
its security holders (including without limitation pursuant to Section 1(b)) a
registration statement under the Securities Act with respect to any class of
Common Stock, except in connection with (i) an offering relating solely to
dividend reinvestment plans or stock option or other employee benefit plans,
(ii) any merger, consolidation or acquisition, (iii) any exchange or tender
offer, whether with existing security holders of the Company or any other
Person, or (iv) an offering relating solely to convertible securities or units
consisting of securities senior to Common Stock and warrants, options and rights
to acquire Common Stock, the Company shall, except to the extent not required to
do so pursuant to the provisions of Section 1(d), in each case:
(i) promptly give written notice to each Stockholder at
least twenty (20) days (or such shorter period as the Company deems
reasonable under the circumstances) before the anticipated filing date.
Such notice shall include the anticipated offering price or range
thereof and the plan of distribution;
(ii) include in such registration (and any related
qualification under blue sky or other state securities laws), and, at
the request of a Stockholder, in any underwriting involved therein, all
Registrable Securities specified in a written request or requests, made
within ten (10) days after such written notice from the Company, by any
Stockholder; and
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(iii) use commercially reasonable efforts to cause the
managing underwriter or underwriters of any proposed underwritten
offering of any class of Common Stock to permit the Registrable
Securities requested to be included in the Registration Statement for
such offering on the same terms and conditions as the Common Stock of
the Company included therein. Notwithstanding the foregoing, if the
managing underwriters of such offering deliver a written opinion to the
holders of such Registrable Securities that marketing considerations
(including, without limitation, pricing) require a limitation on the
Registrable Securities included in any Registration Statement filed
under this Section 1(a), then, subject to the advice of said managing
underwriter or underwriters as to the size and composition of the
offering, and subject to the provisions of Section 1(d), such
limitation will be imposed pro rata (based upon the relative proposed
public offering price of the Registrable Securities proposed to be
included) among all holders of Registrable Securities who requested
inclusion in the registration pursuant to this Section 1(a) (except as
otherwise provided in Section 1(b)).
Except as set forth in the last sentence of this paragraph, the Company
will bear all Registration Expenses in connection with any registration pursuant
to the provisions of this Section 1(a). Without limiting the generality of the
foregoing (but subject to the last sentence of this paragraph), in connection
with each Registration Statement required hereunder, the Company will reimburse
the holders of Registrable Securities being registered pursuant to such
Registration Statement for the reasonable fees and disbursements of not more
than one counsel (or more than one counsel if a conflict exists among such
selling holders in the exercise of the reasonable judgment of counsel for the
selling holders and counsel for the Company, provided that such selling holders
shall use commercially reasonable efforts to minimize conflicts of counsel)
chosen by the holders of not less than a majority in value (based on the
proposed public offering price) of the Registrable Securities being sold.
Notwithstanding the foregoing, in connection with any registration of
Registrable Securities pursuant to this Section 1(a) on behalf of a Registered
Stockholder, the Company shall not be responsible for the fees and disbursements
of counsel to such Registered Stockholder and such Registered Stockholder shall
reimburse the Company promptly upon request therefor for the registration filing
fees paid by the Company to the Commission in respect of the Registrable
Securities registered on behalf of such Registered Stockholder.
If any Stockholder desires to have Registrable Securities registered
under this Section 1(a), it shall be required so to advise the Company in
writing within ten (10) days after the date of the Company's notice, setting
forth the number or amount of Registrable Securities for which registration is
so requested. Neither the delivery of the notice by the Company nor of the
request by any Stockholders shall in any way obligate the Company to file a
Registration Statement and, notwithstanding such filing, the Company may, at any
time prior to the effective date thereof, determine not to offer the securities
to which the registration statement relates without liability to any of the
Stockholders. No registration of Registrable Securities effected under this
Section 1(a) shall relieve the Company of its obligation to effect registration
of Registrable Securities upon any request made pursuant to the provisions of
Section 1(b).
(b) Registration at Stockholders' Request. Subject to the
second paragraph of this Section 1(b), upon the written request of any
Significant Stockholder (or group of Significant Stockholders) requesting that
the Company effect the registration under the Securities Act of all
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or part of the Registrable Securities held by such Stockholder, specifying the
intended method or methods of disposition of such Registrable Securities, the
Company shall, except to the extent not required to do so pursuant to the
provisions of this Section 1(b) or Section 1(d), promptly give written notice of
such requested registration to all holders of Registrable Securities and
thereupon will expeditiously prepare and, within ninety (90) days, file a
registration statement with respect to, and use commercially reasonable efforts
to effect the registration, under the Securities Act, of:
(i) the Registrable Securities which the Company has been
so requested to register by such Stockholders, for disposition in
accordance with the intended method of disposition stated in such
request, and
(ii) all other Registrable Securities which the Company has
been requested to register by the holders of Registrable Securities by
written request delivered to the Company within ten (10) days after the
giving of such notice by the Company (which request shall specify the
intended method of disposition of such Registrable Securities).
Each registration requested pursuant to this Section 1(b) shall be
effected by the filing of a Registration Statement on Form S-1 (or such other
form as the Commission may from time to time require or permit in order to
effectuate a public offering of common stock of a company such as the Company
and in a method of disposition such as that proposed), unless the use of a
different form has been agreed upon in writing by holders of not less than a
majority in value (based upon the proposed public offering price) of the
Registrable Securities as to which registration has so been requested.
Notwithstanding the preceding sentence, the Company need not so cause a
Registration Statement so filed pursuant to the provisions of this Section 1(b)
to become effective under the Securities Act on (a) with respect to BankAmerica
and their permitted assignees, more than one occasion (except that if the
Company is then eligible for the use of Form S-3 (or any successor form),
BankAmerica shall have the right to request an additional registration on Form
S-3 (or such successor form) under this Section 1(b)), (b) with respect to C.
Xxxxxxx Xxxxx and his permitted assigns, more than one occasion (except that if
the Company is then eligible for the use of Form S-3 (or any successor form), C.
Xxxxxxx Xxxxx shall have the right to request an additional registration on Form
S-3 (or such successor form) under this Section 1(b)), (c) with respect to
Schooner, Xxxxxxx X. Xxxx and their permitted assignees, more than one occasion
(except that if the Company is then eligible for the use of Form S-3 (or any
successor form), such Persons shall have the right to request an additional
registration on Form S-3 (or such successor form) under this Section 1(c)), (d)
with respect to the Safesite Stockholders, more than two occasions, and (e) with
respect to any other Significant Stockholder or group of Significant
Stockholders, more than the number of occasions determined by the Company in
respect of such Significant Stockholder or group thereof (which amount shall be
set forth in the instrument pursuant to which such Significant Stockholder or
group thereof becomes party to this Agreement); provided, however, that any
registration of Registrable Securities requested by one or more Significant
Stockholders pursuant to this Section 1(b) which shall not have become effective
and remained effective in accordance with the provisions of Section 1(c) shall
not be deemed to be a registration for purposes of this Section 1(b).
Except as set forth in the last sentence of this paragraph, the Company
will pay all Registration Expenses in connection with each registration pursuant
to the provisions of this
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Section 1(b). Without limiting the generality of the foregoing (but subject to
the last sentence of this paragraph), in connection with each Registration
Statement required hereunder, the Company will reimburse the holders of
Registrable Securities being registered pursuant to such Registration Statement
for the reasonable fees and disbursements of not more than one counsel (or more
than one counsel if a conflict exists among such selling holders in the exercise
of the reasonable judgment of counsel for the selling holders and counsel for
the Company, provided that such selling holders shall use commercially
reasonable efforts to minimize conflicts of counsel) chosen by the holders of
not less than a majority in value (based on the proposed public offering price)
of the Registrable Securities being sold. Notwithstanding the foregoing, in
connection with any registration of Registrable Securities pursuant to this
Section 1(b) on behalf of a Registered Stockholder, the Company shall not be
responsible for the fees and disbursements of counsel to such Registered
Stockholder and such Registered Stockholder shall reimburse the Company promptly
upon request therefor for the registration filing fees paid by the Company to
the Commission in respect of the shares of Registrable Securities registered on
behalf of such Registered Stockholder and for all reasonable out-of-pocket
Registration Expenses incurred in satisfying any such registration (other than
Registration Expenses set forth in paragraph (j) of the definition thereof).
The Company shall not grant to any Person the right to request the
Company to register, nor shall the Company include in any registration pursuant
to this Section 1(b), any securities other than Registrable Securities or any
shares of Common Stock to be registered on behalf of the Company, without the
written consent of holders of not less than a majority in value (based upon the
proposed public offering price) of the Registrable Securities as to which
registration has been so requested.
Whenever registration requested by one or more Stockholders pursuant to
this Section 1(b) is for an underwritten offering, only Registrable Securities
which are to be distributed by the underwriters designated by the Company
(subject to the consent of the Stockholder(s) making such request, which consent
shall not be unreasonably withheld) may be included in such registration,
without the written consent of holders of not less than a majority in value
(based upon the proposed public offering price) of the Registrable Securities as
to which registration has been so requested. If Stockholders holding not less
than a majority in value of the Registrable Securities (based upon the proposed
public offering price) to be included in such registration shall determine that
the number or amount of shares of Common Stock to be included in such
registration should be limited due to market conditions or otherwise, then the
number of shares of Common Stock proposed to be included shall be included in
the following order: (i) first, the Registrable Securities pro rata among the
holders of Registrable Securities based on the value (based upon the proposed
public offering price) of the respective numbers or amount of Registrable
Securities as to which registration has been requested by such Stockholders and
(ii) second, the shares of Common Stock to be issued by the Company. For
purposes of determining the number of available requests for registration of
Registrable Securities pursuant to the second paragraph of this Section 1(b),
the Significant Stockholder (or group of related Significant Stockholders)
having the greatest number of shares of Common Stock registered and effectively
sold under any registration initiated pursuant to this Section 1(b) shall be
deemed to be the party which exercised its demand registration rights pursuant
to this Section 1(b) with respect to such registration and such registration
shall not be considered a
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registration initiated by the Significant Stockholder (or group of related
Significant Stockholders) which actually initiated such registration.
(c) Registration Generally. If and when the Company shall be
required by the provisions of Sections 1(a) or 1(b) to effect the registration
of Registrable Securities under the Securities Act, the Company will use
commercially reasonable efforts to effect such registration to permit the sale
of such Registrable Securities in accordance with the intended method or methods
of disposition thereof, and pursuant thereto it will, as expeditiously as
possible:
(i) use commercially reasonable efforts to cause a
Registration Statement that registers such Registrable Securities to
become and remain effective for a period of ninety (90) days or, if
earlier, until all of such Registrable Securities have been disposed
of;
(ii) before filing a Registration Statement or Prospectus
or any amendments or supplements thereto, furnish to the holders of the
Registrable Securities covered by such Registration Statement and the
managing underwriters, if any, copies of all such documents proposed to
be filed, which documents will be made available, on a timely basis,
for review by such holders and underwriters, and their respective
counsel;
(iii) prepare and file with the Commission such amendments
and post-effective amendments to any Registration Statement, and such
supplements to the Prospectus, as may be required by the rules,
regulations or instructions applicable to the registration form
utilized by the Company or by the Securities Act, the Exchange Act or
otherwise necessary to keep such Registration Statement effective for
the applicable period and cause the Prospectus as so supplemented to be
filed pursuant to Rule 424 under the Securities Act; and comply with
the provisions of the Securities Act with respect to the disposition of
all Registrable Securities covered by such Registration Statement
during the applicable period in accordance with the intended method or
methods of disposition by the holders of such Registrable Securities
set forth in such Registration Statement or Prospectus as so
supplemented;
(iv) notify the selling holders of Registrable Securities
and the managing underwriters, if any, promptly, and (if requested by
any such Person) confirm such advice in writing,
A. when the Prospectus or any supplement thereto or
amendment or post-effective amendment to the Registration
Statement has been filed, and, with respect to the
Registration Statement or any post-effective amendment, when
the same has become effective,
B. of the receipt by the Company of any notification
with respect to any comments by the Commission with respect to
such Registration Statement or Prospectus or of any request by
the Commission for amendments or post-effective amendments to
the Registration Statement or supplements to the Prospectus or
for additional information,
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C. of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration
Statement or the initiation or threatening of any proceedings
for that purpose,
D. if at any time the representations and warranties
of the Company contemplated by paragraph (xv) below cease to
be true and correct in all material respects,
E. of the receipt by the Company of any notification
with respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose,
and
F. of the existence of any event which results in the
Registration Statement, the Prospectus or any document
incorporated therein by reference containing an untrue
statement of material fact or omitting to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(v) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the
Registration Statement or any qualification referred to in paragraph
(iv) E. at the earliest possible moment;
(vi) if requested by the managing underwriters or a holder
of Registrable Securities being sold in connection with an underwritten
offering, immediately incorporate in a Prospectus supplement or
post-effective amendment to the Registration Statement such information
as the managing underwriters or the holders of not less than a majority
in value (based upon the proposed public offering price) of the
Registrable Securities being sold reasonably request to have included
therein relating to the plan of distribution with respect to such
Registrable Securities, including, without limitation, information with
respect to the amount of other Registrable Securities being sold to
such underwriters, the purchase price being paid therefor by such
underwriters and with respect to any other terms of the underwritten
(or best efforts underwritten) offering of the Registrable Securities
to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment promptly after being
notified of the matters to be incorporated in such Prospectus
supplement or post-effective amendment;
(vii) at the request of any selling holder of Registrable
Securities, furnish to such selling holder of Registrable Securities
and each managing underwriter, if any, without charge, at least one
signed copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, all
documents incorporated therein by reference and all exhibits (including
those incorporated by reference);
(viii) deliver to each selling holder of Registrable
Securities and the underwriters, if any, without charge, as many copies
of the Registration Statement, each
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Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto (in each case including all exhibits, except that
the Company shall not be obligated to furnish any such selling holder
with more than two copies of such exhibits other than incorporation
documents), as such Persons may reasonably request, together with such
documents incorporated by reference in such Registration Statement or
Prospectus, and such other documents as such selling holder or
underwriter may reasonably request in order to facilitate the
disposition of the Registrable Securities covered by such registration
statement; the Company consents to the use of each Prospectus or any
supplement thereto by each selling holder of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of
the Registrable Securities covered by each Registration Statement or
any amendment thereto;
(ix) prior to any public offering of Registrable
Securities, use commercially reasonable efforts to register or qualify
or cooperate with the selling holders of Registrable Securities, the
underwriters, if any, and their respective counsel in connection with
the registration or qualification of such Registrable Securities for
offer and sale under the securities or blue sky laws of such
jurisdictions as any selling holder or underwriter reasonably requests
in writing and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the
Registrable Securities covered by the Registration Statement; provided,
however, that the Company will not be required to (A) take such action
in any jurisdiction in which officers, directors or major stockholders
would be required to escrow shares or agree not to sell any securities
in the Company or (B) qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
which would subject it to general service of process or general
taxation in any such jurisdiction where it is not then so subject;
(x) cooperate with the selling holders of Registrable
Securities and the underwriters, if any, to facilitate the timely
preparation and delivery of certificates representing Registrable
Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and
registered in such names as the underwriters may reasonably request at
least two (2) business days prior to any sale of Registrable Securities
to the underwriters;
(xi) use commercially reasonable efforts to cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such other governmental agencies or
authorities as may be necessary or advisable to enable the sellers
thereof or the underwriters, if any, to consummate the disposition of
such Registrable Securities in the United States;
(xii) if any event contemplated by paragraph (iv) F. above
shall exist, immediately upon becoming aware thereof notify each holder
on whose behalf Registrable Securities have been registered and prepare
and furnish to such holders a post-effective amendment to the
Registration Statement or supplement to the Prospectus or any document
incorporated therein by reference or file any other required document
so that, as thereafter delivered to the purchasers of the Registrable
Securities, the Prospectus will not contain an untrue statement of a
material fact or omit to state any
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material fact required to be stated therein or necessary to make the
statements therein not misleading;
(xiii) cause all Registrable Securities covered by the
Registration Statement to be listed on each securities exchange on
which securities of the same class are then listed;
(xiv) not later than the effective date of the Registration
Statement, provide a CUSIP number for all Registrable Securities and
provide the applicable transfer agent(s) with printed certificates or
instruments for the Registrable Securities which are in a form eligible
for deposit with Depositary Trust Company and otherwise meeting the
requirements of any securities exchange on which such Registrable
Securities are listed;
(xv) enter into agreements (including underwriting
agreements) and take all other appropriate actions in order to expedite
or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered
into and whether or not the offer and sale of the Registrable
Securities is an underwritten offering:
A. make such representations and warranties to the
holders of such Registrable Securities and the underwriters,
if any, in form, substance and scope, reasonably satisfactory
to such holders and underwriters, as are customarily made by
issuers to underwriters in primary underwritten offerings;
B. use commercially reasonable efforts to obtain
opinions and updates thereof of counsel which opinions (in
form, scope and substance) shall be reasonably satisfactory to
the underwriters, if any, and the holders of not less than a
majority in value (based on the proposed public offering
price) of the Registrable Securities being sold, addressed to
each selling holder and the underwriters, if any, covering the
matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be
reasonably requested by such holders and underwriters;
C. use commercially reasonable efforts to obtain
so-called "cold comfort" letters and updates thereof from the
Company's independent public accountants addressed to the
selling holders of Registrable Securities and the
underwriters, if any, such letters to be in customary form and
covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with primary
underwritten offerings and such other matters as may be
reasonably requested by such holders and underwriters;
D. if an underwriting agreement is entered into,
cause the same to set forth in full the indemnification
provisions and procedures of Section 3 (or such other
substantially similar provisions and procedures as the
underwriters shall reasonably request) with respect to all
parties to be indemnified pursuant to said Section; and
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E. deliver such documents and certificates as may be
reasonably requested by the holders of not less than a
majority in value (based on the proposed public offering
price) of the Registrable Securities being sold or the
underwriters, if any, to evidence compliance with the
provisions of this Section 1(c) and with any customary
conditions contained in the underwriting agreement or other
agreement entered into by the Company.
The above shall be done at the effectiveness of such Registration
Statement, each closing under any underwriting or similar agreement as
and to the extent required thereunder and from time to time as may
reasonably be requested by any selling holder of Registrable Securities
in connection with the disposition of Registrable Securities pursuant
to such Registration Statement, all in a manner consistent with
customary industry practice;
(xvi) make available to (A) each Stockholder that is
selling in excess of $10,000,000 of Registrable Securities in such
offering (based upon the proposed public offering price of the
Registrable Securities proposed to be included), (B) a representative
of the holders of not less than a majority in value (based on the
proposed public offering price) of the Registrable Securities
(excluding any holder specified in clause (A) above), (C) any
underwriter participating in any disposition pursuant to such
Registration Statement, and (D) any attorney or accountant retained by
such holders or underwriter, all pertinent financial, corporate and
other records and documents of the Company, and cause the Company's
officers, directors and employees to supply all information reasonably
requested by any such holder, representative, underwriter, attorney or
accountant, in each case as shall be reasonably necessary to enable the
selling holders of Registrable Securities and any underwriter to
exercise their due diligence responsibilities in connection with the
registration, with respect to each at such time or times as the person
requesting such information shall reasonably determine; provided,
however, that any records, information or documents that are designated
by the Company in writing as confidential shall be kept confidential by
such persons unless disclosure of such records, information or
documents is required by court or administrative order or applicable
law or otherwise becomes public without breach of the provisions of
this paragraph;
(xvii) otherwise use commercially reasonable efforts to comply
with the Securities Act, the Exchange Act, all applicable rules and
regulations of the Commission and all applicable state blue sky and
other securities laws, rules and regulations, and make generally
available to its security holders, earnings statements satisfying the
provisions of Section 11(a) of the Securities Act, no later than ninety
(90) days if the end of any 12-month period of the Company (A)
commencing at the end of any month in which Registrable Securities are
sold to underwriters in an underwritten offering, or, if not sold to
underwriters in such an offering, (B) beginning with the first month
commencing after the effective date of the Registration Statement,
which statements shall cover said 12-month periods;
(xviii) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due diligence
investigation by any underwriter
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(including any "qualified independent underwriter" that is required to
be retained in accordance with the rules and regulations of the NASD);
and
(xix) promptly prior to the filing of any document which is
to be incorporated by reference into the Registration Statement or the
Prospectus (after the initial filing of the Registration Statement)
provide copies of such document to the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel make
the Company's representatives available for discussion of such document
with such persons and make such changes in such document prior to the
filing thereof as any such persons may reasonably request.
(d) Restrictions on Registration. Anything in Section 1 to the
contrary notwithstanding, the Company shall not be required to register
Registrable Securities on behalf of any Stockholder to the following extent and
subject to the following conditions: in the case of any registration initially
proposed to be filed solely on behalf of the Company if in the opinion of the
managing underwriters of the proposed public offering (a copy of which opinion
shall have been furnished to any Stockholder requesting registration (or each
such holder if the Company has elected not to notify the holders of Registrable
Securities pursuant to the provisions of Section 1(a) because it is not required
to include any Registrable Securities in such registration pursuant to the
provisions of this Section 1(d))), such registration (or such portion thereof as
may be specified in such opinion) would adversely affect the proposed public
offering price or the plan of distribution contemplated by the proposed Company
offering, in which event the Company shall (unless in the opinion of such
managing underwriters (a copy of which shall be similarly furnished) to do so
would materially and adversely affect the proposed public offering price or such
plan of distribution) cause such Registration Statement to remain in effect and
to be phrased in such a manner so that the Stockholders requesting registration
thereunder may, during a period commencing not less than sixty (60) days or more
than ninety (90) days (or such other period as such managing underwriters may
approve as not so adversely affecting the proposed public offering price or such
plan of distribution) after the closing of the sale to the underwriters pursuant
to the original distribution thereunder, offer and sell under such Registration
Statement the Registrable Securities referred to in the request of registration
pursuant to this Section 1. In addition, (i) the Company shall not be obligated
to file and cause to become effective a Registration Statement pursuant to
Section 1(b) during any period in which any other Registration Statement (other
than a registration statement as to which Stockholders do not have the right to
participate in accordance with Section 1(a) hereof) pursuant to which shares of
Common Stock are or were to be sold on behalf of the Company has been filed and
not withdrawn or has been declared effective within the prior ninety (90) days;
and (ii) the Company may delay the filing or effectiveness of any Registration
Statement for a period of up to one hundred and twenty (120) days after the date
of a request pursuant to Section 1(b) hereof if at the time of such request (A)
the Company is engaged, or has plans to engage, within ninety (90) days of the
time of such request, in a firm commitment underwritten public offering of
shares of Common Stock in which Stockholders may include Registrable Securities
pursuant to Section 1(a) or (B) the Company is engaged in negotiations regarding
a material transaction.
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Section 2. Conditions to Registration.
Each Stockholder's right to have Registrable Securities included in any
Registration Statement filed by the Company in accordance with the provisions of
Section 1 shall be subject to the following conditions:
(a) The holders on whose behalf such Registrable Securities are to be
included shall be required to furnish the Company in a timely manner with all
information required by the applicable rules and regulations of the Commission
concerning the proposed method of sale or other disposition of such Registrable
Securities, the identity of and compensation to be paid to any proposed
underwriters to be employed in connection therewith, and such other information
as may be reasonably requested by the Company or its counsel properly to prepare
and file such Registration Statement in accordance with applicable provisions of
the Securities Act;
(b) The holders on whose behalf such Registrable Securities are to be
included shall execute and deliver to the Company such written undertakings as
the Company and its counsel may reasonably request in order to assure full
compliance with applicable provisions of the Securities Act and the Exchange
Act;
(c) In the case of any registration requested pursuant to the
provisions of Section 1(a), the offering price for any Registrable Securities to
be so registered shall be no less than for any securities of the same class then
to be registered for sale for the account of the Company;
(d) Upon receipt of any notice from the Company of the existence of any
event of the nature referred to in paragraph (xii) of Section 1(c), such holder
will forthwith discontinue disposition of Registrable Securities until such
holders receipt of the copies of the supplemented or amended Prospectus
contemplated by such paragraph, or until it is advised in writing by the Company
that the use of the Prospectus may be resumed, and has received copies of any
additional or supplemental filings which are incorporated by reference in the
Prospectus, and, if so directed by the Company, such holder will deliver to the
Company (at its expense) all copies, other than permanent file copies then in
such holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice; and
(e) Such other conditions as the Company may impose on a Stockholder
that becomes party to this Agreement after the date hereof (which conditions
shall be set forth in the instrument pursuant to which such Stockholder becomes
party to this Agreement).
In addition, it shall be a condition to a Safesite Stockholder's right to
request that the Company effect the registration under the Securities Act
pursuant to Section 1(b) that such Safesite Stockholder, or both Safesite
Stockholders, request the registration of shares of Registrable Securities
having a proposed public offering price of at least $10,000,000.
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Section 3. Indemnification.
(a) Indemnification by the Company. In the event of the
registration of any Registrable Securities under the Securities Act pursuant to
the provisions hereof, the Company will, to the extent permitted by law,
indemnify and hold harmless each Stockholder on whose behalf such Registrable
Securities shall have been registered, its partners, trustees, advisory
committee members, directors, officers, employees, representatives and agents,
each underwriter, broker and dealer, if any, who participates in the offering or
sale of such Registrable Securities, and each other Person, if any, who controls
such seller or any such underwriter, broker or dealer within the meaning of the
Securities Act or the Exchange Act (each such person being hereinafter sometimes
referred to as an "indemnified person"), from and against any Claims, joint or
several, to which such indemnified person may become subject, including without
limitation under the Securities Act, the Exchange Act or any state securities or
blue sky law, insofar as such Claims arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained or
incorporated by reference in any Registration Statement or Prospectus or any
amendment or supplement thereto or in any preliminary prospectus, or any
document incorporated by reference therein, or arise out of or based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
with respect to any Prospectus, necessary to make the statements therein in
light of the circumstances under which they were made not misleading, and will
reimburse each such indemnified person for any legal or any other expenses
reasonably incurred by such indemnified person in connection with investigating
or defending any such Claim; provided, however, that the Company will not be
liable in any such case (i) to the extent that any such Claim arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made or incorporated by reference in the Registration
Statement, Prospectus, amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by such indemnified
person specifically stating that it is for use in preparation thereof or (ii) if
such untrue statement or omission was corrected in an amendment or supplement to
the Registration Statement and such amendment or supplement was delivered to
such indemnified person prior to such person's use of the Prospectus related to
such Registration Statement. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf of such indemnified
person and shall survive the transfer of such Registrable Securities by such
seller.
(b) Indemnification by Holders of Registrable Securities. In
the event of the registration of any Registrable Securities under the Securities
Act pursuant to the provisions hereof, each Stockholder on whose behalf such
Registrable Securities shall have been registered will, to the extent permitted
by law, severally and not jointly indemnify and hold harmless, the Company, each
director of the Company, each officer of the Company who signs the registration
statement, each underwriter, broker and dealer, if any, who participates in the
offering and sale of such Registrable Securities and each other Person, if any,
who controls the Company or any such underwriter, broker or dealer within the
meaning of the Securities Act or the Exchange Act (each such person including
without limitation the Company being hereinafter sometimes referred to as an
"indemnified person"), against any Claims, joint or several, to which such
indemnified person may become subject, including without limitation under the
Securities Act, the Exchange Act or any state securities or blue sky law,
insofar as such Claims arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained or incorporated by
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reference in any Registration Statement or Prospectus or any amendment or
supplement thereto or any document incorporated by reference therein, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or with respect to any Prospectus, necessary to make the
statements therein in light of the circumstances under which they were made not
misleading, but only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission has been made or incorporated therein
in reliance upon and in conformity with written information furnished to the
Company by such Stockholder specifically stating that it is for use in
preparation thereof, and will reimburse each such indemnified person for any
legal or any other expenses reasonably incurred by the Company or such
indemnified person in connection with investigating or defending any such Claim.
Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such indemnified person and shall survive
the transfer of such Registrable Securities by such seller. In no event shall
the liability of any selling holder of Registrable Securities hereunder be
greater in amount than the dollar amount of the net proceeds received by such
holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Procedure. Promptly after receipt by an indemnified party
of notice of the commencement of any action (including any governmental
investigation or inquiry), such indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party, give written notice to such
indemnifying party of the commencement thereof, but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than pursuant to the provisions of this
Section. In case any such action is brought against any indemnified party, and
it notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election to so assume the defense thereof, the indemnifying party shall not,
except as hereinafter provided, be responsible for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof, other than reasonable cost of investigation. No indemnifying party will
consent to entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
Claim.
Such indemnified party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expense of such indemnified party
unless (i) the indemnifying party has agreed to pay such fees and expenses or
(ii) the indemnifying party shall have failed to assume the defense of such
action or proceeding or has failed to employ counsel reasonably satisfactory to
such indemnified party in any such action or proceeding or (iii) the named
parties to any such action or proceeding (including any impleaded parties)
include both such indemnified party and the indemnifying party, and such
indemnified party shall have reasonably concluded upon written advice of counsel
that representation of both parties by the same counsel would be inappropriate
due to actual or potential material differing interests between them (in which
case, if such indemnified party notifies the indemnifying party in writing that
it elects to employ separate counsel at the expense of the indemnifying party,
the indemnifying party shall not have the right to assume the
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defense of such action or proceeding on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall not, in connection
with any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys at any time for such indemnified party
and any other indemnified parties, which firm shall be designated in writing by
such indemnified parties). The indemnifying party shall not be liable for any
settlement of any such action or proceeding effected without its written consent
(which consent shall not be unreasonably withheld, delayed or conditioned), but
if settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the indemnifying party agrees to
indemnify and hold harmless such indemnified parties from and against any loss
or liability by reason of such settlement or judgment.
(d) Contribution. If the indemnification provided for in this
Section or in Section 4 is unavailable to a party that would have been an
indemnified party under either such Section in respect of any Claims referred to
therein, then each party that would have been an indemnifying party thereunder
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such Claims in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party on the one hand and such indemnified party on the other in connection with
the statement or omission which resulted in such Claims, as well as any other
relevant equitable considerations. The relative fault 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 indemnifying party or such indemnified
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each holder of Registrable Securities agrees that it would not be just and
equitable if contribution pursuant to this Section 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 in this Section. The amount paid
or payable by an indemnified party as a result of the Claims referred to above
in this Section or Section 4 shall include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigation
or defending any such action or claim (which shall be limited as provided in
Section 3(c) if the indemnifying party has assumed the defense of any such
action in accordance with the provisions thereof). In no event shall the
liability of any selling holder of Registrable Securities under this Section
3(d) be greater in amount than the dollar amount of the net proceeds received by
such holder upon the sale of the Registrable Securities giving rise to such
contribution obligation.
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.
Indemnification or, if appropriate, contribution, similar to that
specified in the preceding provisions of this Section (with appropriate
modifications) shall be given by the Company and each seller of Registrable
Securities with respect to any required registration or other qualification of
Registrable Securities under any Applicable Law other than the Securities Act.
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In the event of any underwritten offering of Registrable Securities
under the Securities Act pursuant to the provisions of Section 1, the Company
and each Stockholder on whose behalf Registrable Securities shall have been
registered agree to enter into an underwriting agreement, in standard form, with
the underwriters, which underwriting agreement may contain additional provisions
with respect to indemnification and contribution in lieu of the provisions of
this Section.
Section 4. Exchange Act Registration.
The Company covenants and agrees that, at its expense, until such time
as the Stockholders no longer hold any Registrable Securities:
(a) it will, if required by law, maintain a registration
statement (containing such information and documents as the Commission shall
specify) with respect to the Common Stock of the Company under Section 12(g) of
the Exchange Act effective and will file on time such information, documents and
reports as the Commission may require or prescribe for companies whose stock has
been registered pursuant to said Section 12(g); and
(b) it will, if a registration statement with respect to the
Common Stock of the Company under Section 12(b) or Section 12(g) is effective,
upon the request of any Stockholder, make whatever other filings with the
Commission or otherwise make generally available to the public such financial
and other information as any Stockholder may deem necessary or desirable in
order to enable him to be permitted to sell shares of Common Stock pursuant to
the provisions of Rule 144 promulgated under the Securities Act (or any
successor rule or regulation thereto or any statute hereafter adopted to replace
or to establish the exemption that is now covered by said Rule 144).
The Company represents and warrants that any such registration
statement or any information, documents or report filed with the Commission in
connection therewith or any information so made public shall not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements contained therein
not misleading. The Company agrees to indemnify and hold harmless (or to the
extent the same is not enforceable, make contribution to) the Stockholders,
their partners, trustees, advisory committee members, officers, directors,
employees, representatives and agents, each broker, dealer or underwriter
(within the meaning of the Securities Act) acting for any Stockholder in
connection with any offering or sale by such Stockholder of Registrable
Securities or any person, firm or corporation controlling (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) such
Stockholder or any such broker, dealer or underwriter from and against any and
all Claims arising out of or resulting from any breach of the foregoing
representation or warranty, all on terms and conditions comparable to those set
forth in Section 3; provided, however, that the Company shall be given written
notice and an opportunity to participate in, and, to the extent that it may
wish, to assume on terms and conditions comparable to those set forth in Section
3, the defense thereof.
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Section 5. Termination of Registration Obligations.
(a) The obligations of the Company to any Stockholder with
respect to its rights of registration provided for in Section 1:
(i) shall continue until such time as Xxxxxxxx & Worcester
LLP or other counsel for the Company knowledgeable in securities law matters and
reasonably acceptable to such Stockholder has delivered a written opinion to the
Company and such Stockholder (or group of related Stockholders) to the effect
that either (A) such Stockholder has no further obligation to comply with the
registration requirements of the Securities Act or to deliver a prospectus
meeting the requirements of Section 10(a)(3) of the Securities Act in connection
with further sales by such Stockholder of Registrable Securities or (B) such
Stockholder owns less than 3% of the outstanding Common Stock and is able to
sell all of the Registrable Securities owned by him pursuant to the provisions
of Rule 144 under the Securities Act in a three-month period; and
(ii) shall not apply to any proposed sales or other
dispositions or offers therefor of any Registrable Securities with respect to
which Xxxxxxxx & Worcester LLP or other counsel for the Company knowledgeable in
securities law matters and reasonably acceptable to such Stockholder (or group
of related Stockholders) has delivered a written opinion to the Company and the
Stockholder proposing to make such offer, sale or other disposition to the
effect that such Stockholder has no obligation to comply with the registration
requirements of the Securities Act or to deliver a prospectus meeting the
requirements of Section 10(a)(3) of the Securities Act.
Any such opinion (a copy of which shall be addressed to such
Stockholder (or group of related Stockholders)) shall be reasonably satisfactory
(in the case of such opinion as to form, scope and substance) to such
Stockholder (or group of related Stockholders).
The Company shall, to the extent permitted by law, indemnify and hold
harmless each Stockholder, its partners, trustees, advisory committee members,
officers, directors, employees, representatives and agents and each person, if
any, who controls such Stockholder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act, against any Claims to
which such Stockholder, or such partners, trustees, advisory committee members,
officers, directors, employees, representatives and agents or controlling
persons may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such Claims arise out of or are based upon the failure to
register the Registrable Securities because of the invocation by the Company of
the provisions of this Section 5(a) under the Securities Act, all on terms and
conditions comparable to those set forth in Section 3; provided, however, that
the Company shall be given written notice and an opportunity to participate in,
and to the extent that it may wish, to assume, on terms and conditions
comparable to those set forth in Section 3, the defense thereof.
The indemnification and contributions provisions of Sections 3 and 4
and this Section, and the obligations of each Stockholder pursuant to the
provisions of Section 7, shall survive any termination of the Company's
obligations pursuant to this Section.
(b) In addition to and not in limitation of the provisions of
Section 5(a), the obligations of the Company to any Significant Stockholder with
respect to its rights of
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registration provided for in Section 1(b) will terminate: (i) in the case of
BankAmerica, Xxxxxxx X. Xxxx, Schooner Capital Corporation and C. Xxxxxxx Xxxxx
and their respective successors and assigns, on December 14, 2000; (ii) in the
case of the Safesite Stockholders, on the fifth anniversary of the effective
time of the merger of Safesite Records Management Corporation with a wholly
owned subsidiary of the Company; and (iii) in the case of any other Significant
Stockholder or group of Significant Stockholders, on such date as the Board of
Directors of the Company elects in respect of such Significant Subsidiary or
group thereof (which date shall be set forth in the instrument pursuant to which
such Significant Stockholder or group thereof becomes party to this Agreement).
Section 6. Limitation on Registration Rights of Others.
The Company shall not, after the date hereof, grant any registration
rights which conflict with or impair the registration rights granted hereby. The
provisions of this Section 6 shall not restrict the Company from granting
"demand" registration rights to persons other than the Stockholders, so long as
Stockholders shall be entitled to exercise their rights under Section 1(a) in
connection with each such "demand" registration and the shares requested to be
registered thereunder by the Stockholders shall be included in such offering
after the shares being registered by the party initiating such demand
registration but before any shares being registered on behalf of the Company.
Section 7. Lock-Up Agreement.
Each Stockholder agrees that (a) it and the Registrable Securities
shall be bound by any "lock-up" or other agreement between the Company and any
underwriter of Common Stock (or other equity securities of the Company) which
may be entered into in connection with each underwritten public offering of the
Common Stock (or other equity securities of the Company) so long as the
"lock-up" period does not exceed ninety (90) days (or such longer period as may
have been approved by the Board of Directors of the Company by not less than
two-thirds (2/3) of the directors then in office) following the commencement of
the public offering, and (b) it will execute such agreements or other documents
as may be reasonably requested by any such underwriter in order to evidence its
agreement set forth in this Section; provided, however, that the obligations set
forth in this Section 7 shall not bind any Registrable Securities or the holder
thereof that have been held by such Stockholder and its permitted transferors
for at least five (5) years.
Section 8. Definitions.
As used herein, unless the context otherwise requires, the terms (or
any variant in the form thereof) set forth in this Agreement shall have the
respective meanings so set forth. Terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and the reference to
any gender shall be deemed to include all genders. Unless otherwise defined or
the context otherwise clearly requires, terms for which meanings are provided in
this Agreement shall have such meanings when used in each agreement, notice,
certificate, communication, opinion or other document executed or required to be
executed pursuant hereto or thereto or otherwise delivered, from time to time,
pursuant hereto or thereto.
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"Affiliate" of any Person shall mean any Person which, directly or
indirectly, owns or controls, is under common ownership or control with, or is
owned or controlled by, such Person. A Person shall be deemed to be "controlled
by" any other Person if such other Person possesses, directly or indirectly,
power to direct or cause the direction of the management or policies of such
Person or the disposition of its assets or property, whether by stock, equity or
other ownership, contract, arrangement or understanding, or otherwise.
"Applicable Law" shall mean any Law of any Authority, whether domestic
or foreign, including without limitation all federal and state Laws, to which
the Person in question is subject or by which it or any of its business or
operations is subject or any of its property is bound.
"Authority" shall mean any governmental or quasi-governmental
authority, whether executive, legislative, judicial, administrative or other, or
any combination thereof, including without limitation any federal, state,
territorial, county, municipal or other government or governmental or
quasi-governmental agency, arbitrator, board, body, branch, bureau, central bank
or comparable agency or Entity, commission, corporation, court, department,
instrumentality, master, mediator, panel, referee, system or other political
unit or subdivision or other Entity of any of the foregoing, whether domestic or
foreign.
"BACC" shall mean BankAmerica Capital Corporation.
"BankAmerica" shall mean SP Capital and BACC.
"Claims" shall mean, with respect to any Person, any and all debts,
liabilities, obligations, losses, damages, deficiencies, assessments and
penalties of or against such Person, together with all Legal Actions, pending or
threatened, claims and judgments of whatever kind and nature relating thereto,
and all fees, costs, expenses and disbursements (including without limitation
reasonable attorneys' and other legal fees, costs and expenses) relating to any
of the foregoing.
"Common Stock" and "Nonvoting Common Stock" shall have the respective
meanings set forth for those terms in the Certificate of Incorporation, as
amended, of the Company.
"Commission" shall mean the Securities and Exchange Commission or any
successor Authority.
"Company" is defined in the first paragraph of this Agreement.
"Entity" shall mean any corporation, firm, unincorporated organization,
association, partnership, a trust (inter vivos or testamentary), an estate of a
deceased, insane or incompetent individual, business trust, joint stock company,
joint venture or other organization, entity or business, whether acting in an
individual, fiduciary or other capacity, or any Authority.
"Equity Agreement" shall mean any one of (i) the Agreement and Plan of
Merger among the Company, Safesite Records Management Corporation and IM-1
Acquisition Corp., dated as of February 19, 1997, as amended and (ii) any other
agreement approved from time to time by Board of Directors pursuant to which
Registrable Securities may be issued and which
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is designated by the Board of Directors as an Equity Agreement for purposes of
this Agreement. "Equity Agreements" shall mean all of the foregoing agreements.
"Exchange Act" shall mean the Securities Exchange Act of 1934, and the
rules and regulations of the Commission thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any
statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
"Founder Stockholders" shall mean Xxxxxxx X. Xxxx, Schooner Capital
Corporation, C. Xxxxxxx Xxxxx, Xxxxxx X. Xxxxxxx, The Little Family Trust, the
Little Family Foundation and Xxxxxxxxxx X. Xxxxx.
"Law" shall mean any action, code, consent decree, constitution,
decree, directive, enactment, finding, guideline, law, injunction,
interpretation, judgment, order, ordinance, policy statement, proclamation,
promulgation, regulation, requirement, rule, rule of law, rule of public policy,
settlement agreement, statute, or writ, or the common law, or any particular
section, part or provision thereof, or any interpretation, directive, guideline
or request (whether or not having the force of law), of any Authority, including
without limitation (a) the judicial systems thereof, or any particular section,
part or provision thereof, and (b) any of the foregoing relating to antitrust or
prohibiting other anticompetitive business practices, those relating to
employment practices (such as discrimination, health and safety), and those
relating to minority business enterprises.
"Legal Action" shall mean, with respect to any Person, any litigation
or legal or other actions, arbitrations, investigations, proceedings or suits,
at law or in arbitration, equity or admiralty (whether or not purported to be
brought on behalf of such Person) affecting such Person or any of its business
or property or assets.
"NASDAQ" shall mean the automatic quotation system of the National
Association of Securities Dealers, Inc.
"Original Agreement" is defined in the first Whereas clause herein.
"Person" shall mean any natural individual or any Entity.
"Prospectus" shall mean each prospectus included in any Registration
Statement, as amended or supplemented by any prospectus supplement with respect
to the terms of the offering of any portion of the Registrable Securities
covered by the Registration Statement and by all other amendments and
supplements to the prospectus, including each preliminary prospectus and
post-effective amendments and all material incorporated by reference in such
prospectus.
"Registered Stockholder" shall mean (a) each Safesite Stockholder, (b)
any other Stockholder designated by the Board of Directors of the Company in
connection with such Stockholder's becoming a party to this Agreement in
accordance with Section 9(a) as a Registered Stockholder with respect to
Registrable Securities, and (c) permitted transferees of such Registered
Stockholders.
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"Registrable Securities" shall mean (a) all shares of Common Stock or
Nonvoting Common Stock held as of the date hereof by SP Capital, BACC and the
Founder Stockholders, (b) all shares of Common Stock acquired by any of the
Stockholders pursuant to any of the Equity Agreements, (c) shares of Common
Stock acquired, directly or indirectly through one or more such conversions or
exchanges, upon the exercise of conversion or exchange provisions set forth, in
the case of SP Capital or BACC, the shares of Nonvoting Common Stock, and, in
the case of any other Stockholder, other securities of the Company issued
pursuant to the provisions of any Equity Agreement, or pursuant to the
redemption or repurchase of any such securities by the Company, and (d) any
share of Common Stock or other equity securities of the Company derived from the
Registrable Securities, whether as a result of stock split, stock dividend,
stock distribution, stock combination, recapitalization or similar event.
"Registration Expenses" shall mean all (or where appropriate any one or
more) of the following:
(a) all registration, filing and listing fees;
(b) fees and expenses of compliance with securities or blue sky laws
(including without limitation reasonable fees and disbursements
of counsel for the underwriters or selling holders in connection
with blue sky and state securities qualifications of the
Registrable Securities under the laws of such jurisdictions as
the managing underwriters or the holders of not less than a
majority in value (based on the proposed public offering price)
of the Registrable Securities being sold may designate);
(c) printing (including without limitation expenses of printing or
engraving certificates for the Registrable Securities in a form
eligible for deposit with Depositary Trust Company and otherwise
meeting the requirements of any securities exchange on which they
are listed and of printing Prospectuses), messenger, telephone
and delivery expenses;
(d) fees and disbursements of counsel for the Company, and reasonable
fees and disbursements of counsel for the underwriters and for
the selling holders of the Registrable Securities (subject to any
provisions to the contrary in this Agreement);
(e) fees and disbursements of all independent public accountants of
the Company and any acquired Person whose financial statements
are included in a Registration Statement (including without
limitation the expenses of any annual or special audit and "cold
comfort" letters required by the provisions of this Agreement);
(f) fees and disbursements of underwriters (excluding discounts,
commissions or fees of underwriters), selling brokers, dealer
managers or similar securities industry professionals relating to
the distribution of the Registrable Securities or legal expenses
of any Person other than the Company, the underwriters and the
selling holders;
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(g) fees and expenses of other Persons, including any experts,
retained by the Company;
(h) fees and expenses incurred in connection with the listing of the
Registrable Securities on each securities exchange on which
securities of the same class are then listed;
(i) fees and expenses associated with any NASD filing required to be
made in connection with the Registration Statement, including, if
applicable, the fees and expenses of any "qualified independent
underwriter" (and its counsel) that is required to be retained in
accordance with the rules and regulations of the NASD; and
(j) the Company's internal expenses (including without limitation all
salaries and expenses of its officers and employees performing
legal or accounting duties).
"Registration Statement" shall mean any registration statement of the
Company which covers Registrable Securities pursuant to the provisions of this
Agreement, including the Prospectus, amendments, including post-effective
amendments to such registration statement, and supplements to such Prospectus
and all exhibits and all material incorporated by reference in such registration
statement.
"Safesite Stockholders" shall mean B. Xxxxxx Xxxxxxxx and Xxxxx Xxxxxx.
"Securities Act" shall mean the Securities Act of 1933, and the rules
and regulations of the Commission thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any
statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
"Significant Stockholder" shall mean (a) each Safesite Stockholder, (b)
SP Capital and BankAmerica, (c) Xxxxxxx X. Xxxx and Schooner Capital
Corporation, (d) C. Xxxxxxx Xxxxx, (e) any other Stockholder or group of
Stockholders designated by the Board of Directors of the Company in connection
with such Stockholder's or group of Stockholder's becoming a party to this
Agreement in accordance with Section 9(a) as a Significant Stockholder with
respect to Registrable Securities and (f) permitted assignees of such
Significant Stockholders.
"SP Capital" shall mean Security Pacific Capital Investors L.P.
"Stockholders" shall mean those persons who executed the Original
Agreement or this Agreement or who hereafter become parties to this Agreement by
executing a counterpart hereof, and is further defined in Section 9(a).
"Subsidiary" shall mean, with respect to any Person, any Entity a
majority of the capital stock ordinarily entitled to vote for the election of
directors, or if no such voting stock is outstanding a majority of the equity
interests, of which is owned directly or indirectly by such Person or any
Subsidiary of such Person.
-22-
Section 9. Miscellaneous.
(a) Assignment; Successors and Assigns. In the event that the
Company shall be merged with, or consolidated into, any other Entity or in the
event that it shall sell and transfer substantially all of its assets to another
Entity, the terms of this Agreement shall inure to the benefit of, and be
assumed by, the Entity resulting from such merger or consolidation, or to which
the Company's assets shall be sold and transferred. Each Stockholder may assign
its rights hereunder to any purchaser or transferee of Registrable Securities;
provided, however, (i) there shall be no assignment of rights hereunder to a
purchaser of Registrable Securities which constitute less than one percent of
the shares of the then outstanding Common Stock of the Company (on a fully
diluted basis giving effect to the conversion of all convertible securities of
the Company (including, without limitation, the Nonvoting Common Stock) or, in
the case of each of The Little Family Trust, the Little Family Foundation or
Xxxxxxxxxx X. Xxxxx, which constitute less than all of the Registrable
Securities held by such Stockholder, or, in the case of any other Stockholder
who becomes a party to this Agreement after the date hereof (other than by way
of assignment) such other limitations as the Company may impose (which
limitations shall be set forth in the instrument pursuant to which such
Stockholder becomes party to this Agreement) and (ii) that such purchaser or
transferee shall, as a condition to the effectiveness of such assignment, be
required to execute a counterpart to this Agreement agreeing to be treated as a
Stockholder whereupon such purchaser or transferee shall have the benefits of,
and shall be subject to the restrictions contained in, this Agreement. Anything
in this Agreement to the contrary notwithstanding, the term "Stockholders" as
used in this Agreement shall include the Stockholders party to this Agreement,
their permitted successors and assigns and such other Stockholders as may
receive Registrable Securities pursuant to an Equity Agreement provided that
such Stockholder shall execute a counterpart to the Agreement in accordance with
clause (ii) of the immediately preceding sentence.
Nothing in this Agreement expressed or implied is intended to and shall
not be construed to confer upon or create in any Person (other than the parties
hereto and their permitted successors and assigns) any rights or remedies under
or by reason of this Agreement, including without limitation any rights to
enforce this Agreement.
(b) Specific Performance; Other Rights and Remedies. Each
party recognizes and agrees that the other parties' remedies at law for any
breach of the provisions of this Agreement would be inadequate and agrees that
for breach of such provisions, each such party shall, in addition to such other
remedies as may be available to it at law or in equity or as provided in this
Agreement, be entitled to injunctive relief and to enforce its rights by an
action for specific performance to the extent permitted by Law. Each party
hereby waives any requirement for security or the posting of any bond or other
surety in connection with any temporary or permanent award of injunctive,
mandatory or other equitable relief. Nothing herein contained shall be construed
as prohibiting any party from pursuing any other remedies available to it for
such breach or threatened breach, including without limitation the recovery of
damages.
(c) Expenses. Each party shall pay its own expenses incident
to the negotiation, preparation, performance and enforcement of this Agreement
(including all fees and expenses of its counsel, accountants and other
consultants, advisors and representatives for all activities
-23-
of such persons undertaken pursuant to this Agreement), except to the extent
otherwise specifically set forth in this Agreement.
(d) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements, arrangements, covenants, promises, conditions,
understandings, inducements, representations and negotiations, expressed or
implied, oral or written, among them as to such subject matter.
(e) Waivers; Amendments. Notwithstanding anything in this
Agreement to the contrary, amendments to and modifications of this Agreement may
be made, required consents and approvals may be granted, compliance with any
term, covenant, agreement, condition or other provision set forth herein may be
omitted or waived, either generally or in a particular instance and either
retroactively or prospectively with, but only with, the written consent of the
Company (to the extent it is entitled to the benefit thereof) and a majority in
interest of the Stockholders (to the extent they are entitled to the benefit
thereof or obligated thereby); provided, however, that in the event any such
amendment, modification, consent, approval or waiver shall be for the benefit of
or materially adverse to less than all of the Stockholders, such amendment,
modification, consent, approval or waiver shall require a majority in interest
of those Stockholders who are not so benefitted or who are so materially
adversely affected.
(f) Notices. All notices and other communications which by any
provision of this Agreement are required or permitted to be given shall be given
in writing and shall be (a) mailed by first-class or express mail, postage
prepaid, (b) sent by telex, telegram, telecopy or other form of rapid
transmission, confirmed by mailing (by first class or express mail, postage
prepaid) written confirmation at substantially the same time as such rapid
transmission, or (c) personally delivered to the receiving party (which if other
than an individual shall be an officer or other responsible party of the
receiving party). All such notices and communications shall be mailed, sent or
delivered as follows:
If to the Company, at:
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: C. Xxxxxxx Xxxxx, Chairman of the Board
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
If to any Stockholder, at his address as it appears on the stock
records of the Company, and/or to such other person(s), facsimile number(s) or
address(es) as the party to receive any such communication or notice may have
designated by written notice to the other parties.
-24-
(g) Severability. If any provision of this Agreement shall be
held or deemed to be, or shall in fact be, invalid, inoperative, illegal or
unenforceable as applied to any particular case in any jurisdiction or
jurisdictions, or in all jurisdictions or in all cases, because of the
conflicting of any provision with any constitution or statute or rule of public
policy or for any other reason, such circumstance shall not have the effect of
rendering the provision or provisions in question invalid, inoperative, illegal
or unenforceable in any other jurisdiction or in any other case or circumstance
or of rendering any other provision or provisions herein contained invalid,
inoperative, illegal or unenforceable to the extent that such other provisions
are not themselves actually in conflict with such constitution, statute or rule
of public policy, but this Agreement shall be reformed and construed in any such
jurisdiction or case as if such invalid, inoperative, illegal or unenforceable
provision had never been contained herein and such provision reformed so that it
would be valid, operative and enforceable to the maximum extent permitted in
such jurisdiction or in such case, except when such reformation and construction
could operate as an undue hardship on either party, or constitute a substantial
deviation from the general intent and purpose of such party as reflected in this
Agreement.
The parties shall endeavor in good faith negotiations to
replace the invalid, inoperative, illegal or unenforceable provisions with
valid, operative, legal and enforceable provisions the economic effect of which
comes as close as possible to that of the invalid, inoperative, illegal or
unenforceable provisions.
(h) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument, binding upon all the
parties hereto. In pleading or proving any provision of this Agreement, it shall
not be necessary to produce more than one of such counterparts.
(i) Section Headings. The headings contained in this Agreement
are for reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
(j) Governing Law. The validity, interpretation, construction
and performance of this Agreement shall be governed by the applicable laws of
the United States of America and the domestic substantive laws of the
Commonwealth of Massachusetts without giving effect to any choice or conflict of
laws provision or rule that would cause the application of domestic substantive
laws of any other jurisdiction.
(k) Further Acts. Each party agrees that at any time, and from
time to time, before and after the consummation of the transactions contemplated
by this Agreement, it will do all such things and execute and deliver all such
agreements, assignments, instruments, other documents and assurances, as any
other party or its counsel reasonably deems necessary or desirable in order to
carry out the terms and conditions of this Agreement and the transactions
contemplated hereby or to facilitate the enjoyment of any of the rights created
hereby or to be created hereunder.
-25-
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
IRON MOUNTAIN INCORPORATED
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
STOCKHOLDERS
SECURITY PACIFIC CAPITAL INVESTORS L.P.
By: Security Pacific Investors, Inc.
Its General Partner
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title:
BANKAMERICA CAPITAL CORPORATION
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title:
SCHOONER CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxx
---------------------------------
Name: Xxxxxxx X. Xxxx
Title:
/s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx
/s/ C. Xxxxxxx Xxxxx
--------------------------------------
C. Xxxxxxx Xxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx
-26-
THE LITTLE FAMILY TRUST
By: Rhode Island Hospital Trust National
Bank, as Corporate Trustee under the
Trust Indenture dated July 1, 1966
By: ___________________________________
Name:
Title:
THE LITTLE FAMILY FOUNDATION
By: BOSTON SAFE DEPOSIT & TRUST CO.,
as Trustee
By: ___________________________________
Name:
Title:
/s/ Xxxxxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxxxxx X. Xxxxx
-27-
/s/ B. Xxxxxx Xxxxxxxx
--------------------------------------
B. Xxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
--------------------------------------
Xxxxx X. Xxxxxx
