EXHIBIT 10.1
FIRST AMENDMENT TO STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement, dated as of April 8,
1999 (the "Amendment"), is by and among Iron Mountain Incorporated, a Delaware
corporation ("Purchaser"); Data Base, Inc., a Washington corporation (the
"Company"); Xxxx X. Xxxxx; Xxxxx X. Xxxxx; Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx
and Xxxx Xxxxx Xxxx, as co-trustees of the Xxxx Xxxxx Xxxx GST Trust; Xxxx Xxx
Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx Xxxxx Paszkeicz, as co-trustees of the
Xxxxx Xxxxx Paszkeicz GST Trust; Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx X.
Xxxxx, Xx., as co-trustees of the Xxxx X. Xxxxx, Xx. GST Trust; and Xxxx Xxx
Xxxxxxxxx and Xxxxxx X. Xxxxx, as co-trustees of the Xxxxxx X. Xxxxx GST Trust
(each a "Seller" and collectively, "Sellers").
W I T N E S S E T H :
WHEREAS, Purchaser, the Company and Sellers are parties to that Stock
Purchase Agreement, dated as of February 28, 1999 (the "Original Agreement");
WHEREAS, Purchaser is contemplating an underwritten public offering of
shares of its common stock, par value $.01 per share ("Purchaser Common Stock"),
pursuant to its Registration Statement on Form S-3 (No. 333-44185) (the
"Universal Shelf");
WHEREAS, Sellers desire liquidity with respect to the Iron Mountain
Common Stock (this and other capitalized terms used in this Amendment without
definition are used with the meanings ascribed to such terms in the Original
Agreement) and Purchaser is willing to apply a portion of the net proceeds from
the public offering to repurchase shares of Iron Mountain Common Stock held by
Sellers (subject to the terms and conditions set forth herein); and
WHEREAS, Purchaser, the Company and Sellers wish to amend the Original
Agreement as set forth in this Amendment;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
Section 1 Repurchase of Shares.
1.1 Repurchase of Shares. Purchaser hereby agrees that if
Purchaser consummates an underwritten public offering of Purchaser
Common Stock under the Universal Shelf on or before May 23, 1999 (the
"Offering"), it shall purchase from each Seller, and each Seller hereby
agrees to sell to Purchaser, on the terms and conditions contained
herein, all or such portion of the Iron Mountain Common Stock held by
such Seller as Purchaser and such Seller may agree, free and clear of
all Liens. The per share purchase price to be paid to Sellers for the
Iron Mountain Common Stock shall be equal to the public offering price
per share with respect to the Offering, less underwriting discounts and
commissions; provided, however, that each Seller, prior to being
obligated to sell shares of Iron Mountain Common Stock under this
Amendment, shall have the right to designate the net price per share
such Seller is willing to accept for his or its Iron Mountain Common
Stock. Such agreement shall be reflected in a letter agreement between
such Seller and Purchaser (the "Letter Agreement") entered into by them
not less than two (2) business days prior to the execution of the
Underwriting Agreement to be entered into in connection with the
Offering (the "Underwriting Agreement"). The Parties acknowledge that
Purchaser has the right to apply the net proceeds of the Offering as it
in its sole discretion may determine and that, consistent with an
underwritten offering as to which Sellers had piggyback registration
rights, Purchaser will only be required to apply the net proceeds of
the Offering to purchase shares of Iron Mountain Common Stock from
Sellers after it has applied the net proceeds to Purchaser's other
intended uses. Accordingly, if the managing underwriters of the
Offering deliver a written opinion to Sellers that marketing
considerations (including, without limitation, pricing) require a
limitation on Purchaser Common Stock to be sold
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in the Offering, then, subject to the advice of said managing
underwriter or underwriters as to the size and composition of the
Offering, such limitation will be imposed on one or more Sellers, and
Purchaser shall not be required to purchase Iron Mountain Common Stock
from such Seller or Sellers as a result of such limitation.
1.2 No Obligation to Proceed with Offering. Notwithstanding
anything to the contrary in this Amendment, Purchaser shall not in any
way be obligated to consummate the Offering and it may, at any time
prior to the closing thereof, determine not to offer shares of
Purchaser Common Stock pursuant to the Universal Shelf without
liability to any Seller. Purchaser shall give Sellers prompt written
notice of its election not to proceed with the Offering.
1.3 Replacement of Escrow Shares. If as a result of the
transactions contemplated hereby, shares of Iron Mountain Common Stock
constituting all or part of the Escrow Indemnity Funds are sold by a
Seller to Purchaser hereunder, at the Stock Repurchase Closing (as
defined in Section 2.1 below) such Seller shall contribute to the
Escrow Indemnity Funds cash in an amount (the "Cash Payment") equal to
the product of (a) the public offering price in the Offering and (b)
the shares of Iron Mountain Common Stock being purchased by Purchaser
from such Seller that constitute Escrow Indemnity Funds. To facilitate
such contribution, Purchaser shall pay the Cash Payment to the Escrow
Agent by wire transfer from a portion of the purchase price otherwise
payable to such Seller under Section 1.1 (the "Repurchase Price").
Section 2 Closing.
2.1 Time and Place of Closing. The closing of the purchase and
sale described in Section 1.1 (the "Stock Repurchase Closing") shall
occur at the offices of Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on the day that is one (1) business day
after the closing under the Underwriting Agreement or, if later, at
such time as Purchaser may purchase the Iron Mountain Common Stock in
compliance with Regulation M promulgated under the Securities Exchange
Act of 1934, as amended (the "Stock Repurchase Closing Date").
2.2 Obligations To Be Performed at Closing. At the Stock
Repurchase Closing, (a) Sellers shall deliver to Purchaser stock
certificate(s) representing the Iron Mountain Common Stock to be
purchased by Purchaser hereunder, duly endorsed in blank or accompanied
by stock powers or other duly executed instruments of transfer, as may
be necessary to effect the transfer of good and marketable title to
such shares to Purchaser, free and clear of all Liens, and (b)
Purchaser shall pay to such Seller the Repurchase Price (subject to
reduction, if any, as contemplated by Section 1.3 hereof) by wire
transfer to a bank account designated by such Seller in immediately
available funds. To the extent only a portion of the Iron Mountain
Common Stock represented by a certificate is to be purchased by
Purchaser, at the Stock Repurchase Closing Purchaser shall also deliver
to such Seller a certificate representing the portion of the shares not
acquired.
Section 3 Representations and Warranties of Sellers. To induce
Purchaser to enter into and perform this Amendment, Sellers represent and
warrant to Purchaser as follows:
3.1 Due Authorization and Execution. Each Seller has all
requisite power and authority to own the Iron Mountain Common Stock, to
execute and deliver this Amendment and to perform its obligations
hereunder and consummate the transactions contemplated hereby. This
Amendment has been duly authorized, executed and delivered by each
Seller and is a legal, valid and binding obligation of such Seller,
enforceable against such Seller in accordance with its terms, except as
such enforcement may be limited by bankruptcy, insolvency or similar
laws affecting the enforcement of creditors' rights generally and
except as the availability of equitable remedies may be limited by
equitable principles of general applicability.
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3.2 No Approvals or Notices Required; No Conflicts With
Material Contracts. The execution, delivery and performance of this
Amendment by each Seller, and the consummation of the transactions
contemplated hereby, will not (a) conflict with or constitute a default
or violation (with or without the giving of notice or lapse of time, or
both) of any Governmental Regulation, or of any Permit, authorization,
status, concession, franchise, license, statute, law, ordinance, rule
or regulation applicable to any Seller, (b) require any consent,
approval or authorization of, or declaration, filing or registration
with any Governmental Entity (except for consents, approvals or
authorizations of, or declarations, filings or registrations required
under federal and state securities laws), (c) result in a material
default under or violation of (with or without the giving of notice or
lapse of time, or both), acceleration or termination (with or without
the giving of notice or lapse of time or both) of, or give rise to an
acceleration of any material obligation or to the loss of a material
benefit under, any contract or other restriction, encumbrance,
obligation or liability affecting Seller, (d) conflict with or result
in a breach of or constitute a default or violation under any provision
of any applicable trust agreement of Seller, or (e) result in or permit
the creation or imposition of any Lien upon any Iron Mountain Common
Stock.
3.3 Absence of Legal Proceedings. No litigation, investigation
or administrative proceeding (including, without limitation, any
arbitration proceeding) is pending or (to Sellers' Knowledge)
threatened in writing against any Seller which seeks to enjoin,
restrain, condition or prevent consummation by Sellers of this
Amendment or the transactions contemplated herein.
3.4 Brokerage. No Seller has retained any broker or finder in
connection with the transactions contemplated by this Amendment.
3.5 Title to Shares. At the Stock Repurchase Closing, each
Seller will have good and marketable title to the shares of Iron
Mountain Common Stock to be sold to Purchaser hereunder, free and clear
of all Liens, except for Liens (i) arising in connection with this
Amendment or from the terms of the Escrow Agreement or (ii) arising
from applicable securities laws.
Section 4 Representations and Warranties of Purchaser. To induce
Sellers to enter into and perform this Amendment, Purchaser represents and
warrants to Sellers as follows:
4.1 Due Authorization and Execution. Purchaser is a
corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware, is duly qualified to do business and
is in good standing in all other jurisdictions where its failure to
qualify to do business would result in a Material Adverse Change in
Purchaser. Purchaser has all requisite power and authority to own or
hold under lease its properties and to conduct its business, to execute
and deliver this Amendment and to perform its obligations hereunder and
consummate the transactions contemplated hereby. This Amendment has
been duly authorized, executed and delivered by Purchaser and is a
legal, valid and binding obligation of Purchaser, enforceable against
it in accordance with its terms, except as such enforcement may be
limited by bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally and except as the
availability of equitable remedies may be limited by equitable
principles of general applicability.
4.2 No Approvals or Notices Required; No Conflicts With
Material Contracts. Except as listed in Schedule 4.2, the execution,
delivery and performance of this Amendment by Purchaser, and the
consummation of the transactions contemplated hereby, will not (a)
conflict with or constitute a default or violation (with or without the
giving of notice or lapse of time, or both) of any Governmental
Regulation, or of any Permit, authorization, status, concession,
franchise, license, statute, law, ordinance, rule or regulation
applicable to any Seller, (b) require any consent, approval or
authorization of, or declaration, filing or registration with any
Governmental Entity (except for consents, approvals or authorizations
of, or declarations, filings or registrations required under
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federal and state securities laws), (c) result in a material default
under or violation of (with or without the giving of notice or lapse of
time, or both), acceleration or termination (with or without the giving
of notice or lapse of time or both) of, or give rise to an acceleration
of any material obligation or to the loss of a material benefit under,
any contract or other restriction, encumbrance, obligation or liability
affecting Purchaser, or (d) conflict with or result in a breach of or
constitute a default or violation under any provision of the
Certificate of Incorporation or bylaws of Purchaser.
4.3 Absence of Legal Proceedings. No litigation, investigation
or administrative proceeding (including, without limitation, any
arbitration proceeding) is pending or (to Purchaser's Knowledge)
threatened in writing against Purchaser which seeks to enjoin,
restrain, condition or prevent consummation by Purchaser of this
Amendment or the transactions contemplated herein.
4.4 Brokerage. Other than the underwriters retained in
connection with the Offering, the Company has not retained any broker
or finder in connection with the transactions contemplated by this
Amendment. Purchaser shall be responsible for all fees, discounts and
commissions payable to such underwriters.
Section 5 Purchaser Conditions. The obligations of Purchaser to perform
and observe the covenants, agreements and conditions of this Amendment to be
performed and observed by it at the Stock Repurchase Closing shall be subject to
the satisfaction of the following conditions at or before the Stock Repurchase
Closing, any one or more of which may be waived by Purchaser and the
non-fulfillment of any of which will permit Purchaser, at its sole option, to
terminate this Agreement:
5.1 Accuracy of Representations and Warranties; Compliance
with Covenants. All representations and warranties of Sellers contained
in this Amendment shall be true in all material respects on and as of
the Stock Repurchase Closing Date with the same force and effect as if
again made on and as of such date. Sellers shall have performed in all
material respects all obligations and agreements and complied in all
material respects with all covenants and conditions contained in this
Amendment to be performed and complied with by them on or prior to the
Stock Repurchase Closing Date. At the Stock Repurchase Closing Sellers
shall have delivered a certificate confirming the matters set forth in
this Section 5.1.
5.2 Legal Proceedings; Filings. No Governmental Regulation
shall be in effect which enjoins, restrains, conditions or prohibits,
or seeks damages or other relief in connection with, consummation of
this Amendment or the transactions contemplated herein, and no
litigation, investigation or administrative proceeding (other than
action initiated or threatened by Purchaser) shall be pending or
threatened in writing which would enjoin, restrain, condition or
prevent, or seeks damages or other relief in connection with,
consummation of this Amendment or the transactions contemplated herein.
All filings required by applicable law to be made by Sellers with or to
any Governmental Entity in connection with the transactions
contemplated by this Agreement shall have been made and any waiting
period thereunder shall have lapsed.
5.3 Offering. The Offering shall have been consummated and not
less than two (2) days prior to execution of the Underwriting
Agreement, one or more Sellers and Purchaser shall have entered into
the Letter Agreement, which shall set forth the price or, if
applicable, range of prices that Seller is willing to consummate such
purchase and sale.
5.4 Consents. Purchaser shall have received the consent
identified on Exhibit 4.2 hereto.
Section 6 Seller Conditions. The obligations of each Seller to perform
and observe the covenants, agreements and conditions of this Amendment to be
performed and observed by he or it at the
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Xxxxx Xxxxxxxxxx Closing shall be subject to the satisfaction of the following
conditions at or before the Stock Repurchase Closing, any one or more of which
may be expressly waived in writing by such Seller and the non-fulfillment of any
of which will permit such Seller, at his or its sole option, to terminate this
Amendment:
6.1 Accuracy of Representations and Warranties; Compliance
with Covenants. All representations and warranties of Purchaser
contained in this Amendment shall be true in all material respects on
and as of the Stock Repurchase Closing Date with the same force and
effect as if again made on and as of such date. Purchaser shall have
performed in all material respects all obligations and agreements and
complied in all material respects with all covenants and conditions
contained in this Amendment to be performed and complied with by it on
or prior to the Stock Repurchase Closing Date. At the Stock Repurchase
Closing Purchaser shall have delivered a certificate confirming the
matters set forth in this Section 6.1.
6.2 Legal Proceedings; Filings. No Governmental Regulation
shall be in effect which enjoins, restrains, conditions or prohibits,
or seeks damages or other relief in connection with, consummation of
this Amendment or the transactions contemplated herein, and no
litigation, investigation or administrative proceeding (other than
action initiated or threatened by any Seller) shall be pending or
threatened in writing which would enjoin, restrain, condition or
prevent, or seeks damages or other relief in connection with,
consummation of this Amendment or the transactions contemplated herein.
All filings required by applicable law to be made by Purchaser with or
to any Governmental Entity in connection with the transactions
contemplated by this Agreement shall have been made and any waiting
period thereunder shall have lapsed.
Section 7 Agreements Relating to Registration Rights Agreement, Shelf
Registration Statement and Securities Laws Matters.
7.1 Waiver of Rights. Notwithstanding anything to the contrary
in the Original Agreement or the Joinder, each Seller agrees that in
the event Purchaser acquires from Sellers at least ninety percent (90%)
of the Iron Mountain Common Stock issued pursuant to the Original
Agreement (as contemplated Section 1.1 of this Amendment), (a) Sellers
shall have no right to request Purchaser to register the shares of Iron
Mountain Common Stock pursuant to Section 1(b) of the Registration
Rights Agreement and Paragraph 3 of the Joinder, and (b) Purchaser
shall have no obligation to file a Shelf Registration Statement on
behalf of Sellers in accordance with Section 10.4 of the Original
Agreement.
7.2 Shelf Registration Statement. Notwithstanding Section 10.4
of the Original Agreement, Purchaser's obligation to prepare and file
the Shelf Registration Statement shall be suspended until as soon as
reasonably possible following the earlier to occur of (a) May 23, 1999
or (b) Purchaser's determination not to proceed with the Offering as
notified in writing to Sellers in accordance with Section 1.2.
7.3 Certain Activities. Sellers will not (and will cause their
respective affiliates not to) take, directly or indirectly, any action
which is designed to or which constitutes or which might reasonably be
expected to cause or result in the stabilization or manipulation of the
price of any security of Purchaser to facilitate the sale or resale of
the Purchaser Common Stock to be sold in the Offering, and neither
Sellers nor any of their affiliated purchasers (as defined in Rule 100
of Regulation M under the Securities Exchange Act of 1934, as amended)
will take any action prohibited by Regulation M.
Section 8 Closing Date. Notwithstanding anything to the contrary, for
purposes of the definition of ERISA Affiliate, Sections 9.4(b) and 11 of the
Original Agreement and for accounting purposes,
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the Closing Date under the Original Agreement shall be deemed to be April 1,
1999. For all other purposes (including, without limitation, the definition of
Escrow Indemnity Period and Indebtedness and Sections 3, 9.3, 9.4 and 12 of the
Original Agreement), the Closing Date under the Original Agreement shall be
deemed to be April 8, 1999, and the Closing will be deemed to take place at
12:01 a.m. (local time) on such date.
Section 9 Other Amendments.
9.1 Definitions. The following definition is added to the
Original Agreement:
"First Amendment" means the First Amendment to Stock
Purchase Agreement, dated as of April 8, 1999, by and among
the Company, Purchaser and Sellers.
9.2 Section 7.10. Section 7.10 of the Original Agreement is
hereby amended by (i) deleting the word "and" between the word "Act,"
and "(ii)" in the ninth line of such Section and (ii) inserting the
following words after "Company" and before the comma appearing in the
tenth line of such Section: ", and (iii) for consents, approvals or
authorizations of, or declarations, filings or registrations required
under federal and state securities laws in connection with the Shelf
Registration Statement and the transactions contemplated thereby".
9.3 Section 8.3. Section 8.3 of the Original Agreement is
hereby amended by (i) deleting the word "and" between the word "Act,"
and "(ii)" in the seventh line of such Section and (ii) inserting the
following words after "Purchaser" and before the comma appearing in the
ninth line of such Section: ", and (iii) for consents, approvals or
authorizations of, or declarations, filings or registrations required
under federal and state securities laws in connection with the Shelf
Registration Statement and the transactions contemplated thereby".
9.4 Section 12.1(a). Section 12.1(a) of the Agreement is
hereby amended by adding the words "the First Amendment or the Letter
Agreement (as defined in the First Amendment)" between the words
"Agreement," and "or" in the eleventh line of such Section.
9.5 Section 12.1(b). Section 12.1(b) of the Agreement is
hereby amended by adding the words "the First Amendment or the Letter
Agreement" between the words "Agreement," and "or" in the seventh line
of such Section.
9.6 Section 12.3(a). Section 12.3(a) of the Agreement is
hereby amended by adding the words "or in Section 3.5 of the First
Amendment" after the words "Sections 7.9(a), (b) or (c)" and before the
comma in the eighth line of such Section.
9.7 Section 12.3(c). Section 12.3(c) of the Agreement is
hereby amended by adding the words "or in Section 3.5 of the First
Amendment" after the words "Sections 7.9(a), (b) or (c)" and before the
comma in the seventh line of such Section.
Section 10 Termination. This Amendment (other than Sections 8 and 9
hereof) may be terminated at any time prior to Stock Repurchase Closing by
Purchaser or Sellers. Upon any termination of this Amendment, there shall be no
liability on the part of any Party; provided, however, that such termination
shall not affect the liability of any Party for the breach of any provision of
this Amendment. Notwithstanding any such termination, the Original Agreement
shall continue in full force and effect.
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Section 11 Miscellaneous Provisions.
11.1 Incorporation of Provisions. Sections 14.2 through and
including Section 14.14 of the Original Agreement are hereby
incorporated by reference herein, mutatis mutandis,with the same force
and effect as if set forth herein.
11.2 Original Agreement Still in Effect. All other terms and
conditions of the Original Agreement not specifically addressed by this
Amendment shall remain unchanged and shall continue in full force and
effect.
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IN WITNESS WHEREOF, each of the parties hereto had caused this
Amendment to be duly executed and delivered as of the day and year first above
written.
IRON MOUNTAIN INCORPORATED
By: /s/
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President
DATA BASE, INC.
By: /s/
Name: Xxxx X. Xxxxx
Title: CEO and President
/s/
Xxxx X. Xxxxx
/s/
Xxxxx X. Xxxxx
Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx
Xxxxx Xxxx, as co-trustees of the XXXX XXXXX
XXXX GST TRUST
By: /s/
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/
Xxxxxx X. Xxxxx, Trustee
By: /s/
Xxxx Xxxxx Xxxx, Trustee
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Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxxx
Xxxxx Paszkeicz, as co-trustees of the XXXXX
XXXXX PASZKEICZ GST TRUST
By: /s/
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/
Xxxxxx X. Xxxxx, Trustee
By: /s/
Xxxxx Xxxxx Paszkeicz, Trustee
Xxxx Xxx Xxxxxxxxx, Xxxxxx X. Xxxxx and Xxxx X.
Xxxxx, Xx., as co-trustees of the XXXX X.
XXXXX, XX. GST TRUST
By: /s/
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/
Xxxxxx X. Xxxxx, Trustee
By: /s/
Xxxx X. Xxxxx, Xx., Trustee
Xxxx Xxx Xxxxxxxxx and Xxxxxx X. Xxxxx, as
co-trustees of the XXXXXX X. XXXXX GST TRUST
By: /s/
Xxxx Xxx Xxxxxxxxx, Trustee
By: /s/
Xxxxxx X. Xxxxx, Trustee
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Schedule 4.2
1. Purchaser will require the consent of its lenders under its Second
Amended and Restated Credit Agreement, dated as of December 31, 1997, among
Purchaser, the lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent, as amended and in effect on the date hereof.
