EXHIBIT 10.13
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of September 17, 1997, among Iron Mountain
Incorporated, a Delaware corporation ("Acquiror"), and Xxxx X. Xxxxxx, an
individual having a business address at Keystone Capital, Inc., 000 Xxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (the "Principal Stockholder").
W I T N E S S E T H:
WHEREAS, the Principal Stockholder is the beneficial and
record owner of 8,050 shares of the Class A Common Stock, $.01 par value per
share (the "Class A Company Stock") of HIMSCORP, Inc., a Delaware corporation
(the "Company"), and 8,346.2 shares of the Class B Common Stock, $.01 par value
per share (the "Class B Company Stock" and, collectively with the Class A
Company Stock, the "Company Stock") of the Company;
WHEREAS, concurrently with the execution of this Agreement,
Acquiror and the Company are entering into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which the Company will be merged with and into a
wholly owned subsidiary of Acquiror (the "Merger"), with such subsidiary of
Acquiror continuing as the Surviving Corporation; and
WHEREAS, in order to induce Acquiror to enter into the Merger
Agreement, the Principal Stockholder wishes to make certain representations,
warranties, covenants and agreements in connection with the Merger.
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:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Merger Agreement and the following terms shall have the following meanings:
"beneficially own" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Equity Securities" shall have the meaning set forth in Rule
405 under the Securities Act.
"Intention" shall have the meaning set forth in Section
2.1(f).
"Merger Agreement" shall have the meaning set forth in the
second recital of this Agreement.
"Principal Stockholder" shall have the meaning set forth in
the opening paragraph of this Agreement.
"Related Transaction" shall mean a transaction that is in
contemplation of, or related or pursuant to, the Merger or the Merger Agreement.
"Restricted Stockholder" shall mean any Person that,
individually or together with its Affiliates, beneficially owns, or is a member
of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) that
beneficially owns, 5% or more of Acquiror Stock.
"Sale" shall have the meaning set forth in Section 2.1(f).
"Principal Stockholder Disclosure Letter" shall have the
meaning set forth in Section 2.1(a).
"Third Party" shall mean a party or parties unaffiliated with
either the Company or Acquiror.
"Transfer" shall have the meaning set forth in Section 3.8.
"Voting Securities" shall have the meaning set forth in Rule
405 under the Securities Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Principal
Stockholder. The Principal Stockholder represents and warrants to Acquiror as
follows:
(a) Ownership of Company Shares. Except as disclosed in
Section 2.1(a) of the letter from the Principal Stockholder to Acquiror, dated
the date hereof (the "Principal Stockholder Disclosure Letter"), the Principal
Stockholder is the beneficial owner of 8,050 shares of Class A Company Stock and
8,346.2 shares of Class B Company Stock, free and clear of all Liens (other than
restrictions under securities laws generally) and, except for this Agreement and
the Merger Agreement, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which the Principal
Stockholder is a party relating to the pledge, disposition or voting of any
shares of the Company Stock that are owned by the Principal Stockholder, and
there are no voting trusts or voting agreements with respect to such shares.
Such 8,050 shares of Class A Company Stock and 8,346.2 shares of Class B Company
Stock constitute all of the outstanding shares of capital stock of the Company
owned beneficially or of record by the Principal Stockholder and the Principal
Stockholder does not have any options,
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warrants or other rights to acquire any additional shares of capital stock of
the Company or any security exercisable or exchangeable for, or convertible
into, shares of capital stock of the Company.
(b) Authority to Execute and Perform Agreements. The Principal
Stockholder has the full legal right and power and all authority required to
enter into, execute and deliver this Agreement and to perform fully his
obligations hereunder. This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Principal Stockholder
enforceable against the Principal Stockholder in accordance with its terms
(subject to the Enforceability Exceptions).
(c) No Conflicts; Consents. Except as set forth in Section
2.1(c)(i) of the Principal Stockholder Disclosure Letter, the execution and
delivery by the Principal Stockholder of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with or
result in any violation of or default (with or without notice or lapse of time,
or both) under (A) any contract, agreement or other binding arrangement to which
the Principal Stockholder is a party or (B) any judgment, order, writ,
injunction or decree of any court, governmental body, administrative agency or
arbitrator applicable to the Principal Stockholder. Except as set forth in
Section 2.1(c)(ii) of the Principal Stockholder Disclosure Letter, no
Governmental Authorizations or Private Authorizations are required to be
obtained or made by the Principal Stockholder in connection with the execution
and delivery by the Principal Stockholder of this Agreement and the consummation
of the transactions contemplated hereby.
(d) Information Supplied. None of the information specifically
supplied or to be supplied by the Principal Stockholder with respect to the
Principal Stockholder for inclusion or incorporation by reference in the proxy
statement or other written information to be delivered to all stockholders of
the Company (the "Proxy Statement") will, at the date the Proxy Statement is
first mailed to the Company's stockholders and at the time of the special
meeting of the Company's stockholders for the purpose of voting on the Merger
Agreement or at the time such stockholders execute written consents for the
purpose of approving the Merger Agreement, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(e) Investigation. The Principal Stockholder has had a full
opportunity to review and discuss this Agreement, the Escrow Agreement and the
Merger Agreement (including, without limitation, with respect to the
representations and warranties in the Merger Agreement and the related
Disclosure Schedule) and to ask all questions of Acquiror and the Company and
their respective directors and executive officers necessary in order for the
Principal Stockholder to make an informed decision to enter into this Agreement.
In this regard, the Principal Stockholder acknowledges that, in connection with
the negotiations with respect to the Merger Agreement, Acquiror has disclosed to
the Principal Stockholder certain confidential information concerning Acquiror's
operations and business plans (including, without limitation, potential
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acquisitions) and has advised the Principal Stockholder that Acquiror
anticipates making further and more detailed public announcements of certain
business plans in the near future, none of which in Acquiror's opinion involves
a Material Adverse Change in Acquiror's business operations. Accordingly,
Acquiror has indicated its willingness, and has offered the Principal
Stockholder the option, to defer seeking approval of the Merger Agreement by the
Stockholders of the Company and, accordingly, the Closing under the Merger
Agreement until such time as those announcement are made, which Acquiror
anticipates would occur not later than the end of September. The Principal
Stockholder acknowledges that he nevertheless is prepared to seek such approval
and proceed with the Closing under the Merger Agreement at an earlier date. The
Principal Stockholder further acknowledges that he is a sophisticated investor
and has consented to the scope of the disclosure previously made to him about
Acquiror's business plans and that, subject to his rights in respect of a breach
of Acquiror's representations and warranties in Section 2.2 hereof, the
Principal Stockholder agrees to waive any claim or right he might otherwise have
arising out of the information concerning Acquiror's business plans referred to
above made public on or after the date hereof and on or prior to September 30,
1997.
(f) Intent to Transfer Shares. The Principal Stockholder has,
and as of the Closing Date, will have, no present plan or intention (an
"Intention") to sell, transfer, exchange, pledge (other than in a pre-existing
bona fide margin account) or otherwise dispose of, including a distribution by a
partnership to its partners, or a corporation to its shareholders, or any other
transaction which results in a reduction of ownership (any of the foregoing, a
"Sale") of more than 162/3% of the shares of Acquiror Stock issued to the
Principal Stockholder in the Merger, or any securities that may be paid as a
dividend otherwise distributed thereon or with respect thereto, or issued or
delivered in exchange or substitution therefor or upon exercise of options held
by the Principal Stockholder. For purposes of the preceding sentence, shares of
Company Stock (or the portion thereof) with respect to which a Sale will occur
prior to the Merger shall be considered to be shares of Company Stock that are
exchanged for Acquiror Stock in the Merger and then disposed of pursuant to an
Intention. A Sale of Acquiror Stock shall be considered to have occurred
pursuant to an Intention if, among other things, such Sale occurs in a related
transaction. Subject to the terms of the Investment Agreement between the
Principal Stockholder and Acquiror, the Principal Stockholder (i) reserves the
rights at any time after the Closing Date to evaluate his investment portfolio,
including shares of Acquiror Stock and any other securities issued by Acquiror,
in light of new, material developments, and to make such investment decision
with respect to such securities as the Principal Stockholder and his investment
advisors, if any, shall deem to be in his best interests, and (ii) specifically
disavows any undertaking to hold any securities issued by Acquiror for any
specific period.
2.2 Representations and Warranties of Acquiror. Acquiror
hereby represents and warrants to the Principal Stockholder that the
confidential information disclosed to the Principal Stockholder referred to in
Section 2.1(e) hereof (i) is, to Acquiror's knowledge, true in all material
respects and (ii) has not been disclosed in a manner that is intentionally
misleading to the Principal Stockholder.
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ARTICLE III
COVENANTS
3.1 No Disposition or Acquisition of Shares. The Principal
Stockholder agrees that he shall not sell, transfer, pledge, hypothecate,
encumber or otherwise dispose of (except in the Merger pursuant to the Merger
Agreement or upon the Principal Stockholder's death), or enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, pledge, hypothecation, encumbrance or other disposition of (except in
the Merger pursuant to the Merger Agreement), any of the shares of Company Stock
owned of record or beneficially by him.
3.2 Voting Arrangements. The Principal Stockholder agrees
that, except pursuant to this Agreement, he shall not grant any proxies, deposit
any shares of Company Stock into a voting trust or enter into any voting
agreement with respect to any shares of Company Stock now or hereafter owned,
beneficially or of record, by him, other than proxies to vote such shares at any
annual or special meeting of stockholders of the Company on matters unrelated to
the matters set forth in Section 4.1 hereof.
3.3 Satisfaction of Conditions to the Merger. The Principal
Stockholder agrees that he, in his capacity as a Stockholder, shall assist and
cooperate with the parties to the Merger Agreement in doing all things
necessary, proper or advisable under Applicable Laws as promptly as practicable
to consummate and make effective the Merger and the other Transactions, and he
shall not take any action that would or is reasonably likely to result in any of
his representations and warranties set forth in this Agreement being untrue as
of the date made or in any of the conditions set forth in Article 6 of the
Merger Agreement not being satisfied.
In addition, Acquiror and the Principal Stockholder agree that they
will execute and deliver the Joinder to Registration Rights Agreement.
3.4 No Other Transactions. The Principal Stockholder agrees
that he shall not, nor shall he permit any of his Representatives (including,
without limitation, any investment banker, attorney or accountant retained by
him) to, initiate, solicit or facilitate, directly or indirectly, any inquiries
or the making of any proposal with respect to an Other Transaction, engage in
any discussions or negotiations concerning, or provide to any other person any
information or data relating to, the Company or any of its Subsidiaries for the
purposes of, or otherwise cooperate in any way with or assist or participate in,
or facilitate any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, a proposal to seek or effect an Other
Transaction, or agree to or endorse any Other Transaction; provided, however,
that nothing contained in this Section shall prohibit the Principal Stockholder,
if he is a member of Board of Directors of the Company, from making any
disclosure, in his capacity as a director of the Company, to other stockholders
of the Company that, in the reasonable judgment of the Company's Board of
Directors in accordance with, and based upon the written advice of,
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outside counsel, is required under Applicable Law. The Principal Stockholder
shall promptly advise Acquiror of, and communicate the material terms of, any
proposal he may receive, or any inquiries he receives which may reasonably be
expected to lead to such a proposal relating to an Other Transaction, and the
identity of the Person making it. The Principal Stockholder shall further advise
Acquiror of the status and changes in the material terms of any such proposal or
inquiry (or any amendment to any of them). During the term of this Agreement,
the Principal Stockholder agrees that he shall not enter into any agreement oral
or written, and whether or not legally binding, with any Person that provides
for, or in any way facilitates, an Other Transaction.
3.5 Standstill. The Principal Stockholder agrees that, (i)
from the date hereof until the Closing Date and (ii) from and after the Closing
Date for so long as he shall be a Restricted Stockholder up to and including the
tenth anniversary of the date of this Agreement, he shall not, and shall use his
best efforts to cause his Affiliates not to, without the prior written consent
of the board of directors of Acquiror, (A) in any manner acquire, agree to
acquire or make any proposal to acquire, directly or indirectly, any Equity
Securities of Acquiror or any rights or options to acquire such Equity
Securities (other than the shares of Acquiror Stock received by him in the
Merger and other than options granted to directors of Acquiror), (B) propose to
enter into, directly or indirectly, a merger or other business combination
involving Acquiror or propose to purchase, directly or indirectly, a material
portion of the assets of Acquiror, (C) make, or in any way participate, directly
or indirectly, in, any "solicitation" of "proxies" (as such terms are used in
Regulation 14A under the Exchange Act) to vote or consent or seek to advise or
influence any Person with respect to the voting of, or granting of a consent
with respect to, any Voting Securities of Acquiror, (D) form, join or in any way
participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange
Act) for the purpose of acquiring, holding voting or disposing of any Equity
Securities of Acquiror, (E) otherwise act, alone or in concert with others, to
seek to control or influence in any public manner or public forum the management
or policies of Acquiror; provided, however, that the foregoing shall not limit
the ability to vote any shares of any Equity Securities of Acquiror, (F)
disclose any intention, plan or arrangement inconsistent with the foregoing, (G)
advise, assist (including by knowingly providing or arranging financing for that
purpose) or encourage any other Person in connection with any of the foregoing
or (H) take any action (other than in exercising his registration rights under
the Registration Rights Agreement) which might require Acquiror to make a public
announcement regarding the possibility of a transaction between the Principal
Stockholder and Acquiror (including any of their respective Affiliates).
3.6 Confidentiality, Non-Competition and Non-Solicitation.
(a) Except with the prior written consent of Acquiror, for a
period of five years from the Closing Date, the Principal Stockholder shall not
disclose or make available, directly or indirectly, to others or use for his or
others' benefit confidential information, whether or not reduced to written or
other recorded form, related to Acquiror or the Company and its Subsidiaries,
including the names of customers, the contact persons at customers, pricing, the
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software programs utilized by Acquiror or the Company and its Subsidiaries in
the operation of its business and all other information material to the
operation, management, marketing or financing of Acquiror, the Company and its
Subsidiaries which is not known or generally available to the public or
competitors in the records management or records storage industries.
The confidentiality obligations of this Section shall not apply to information:
(i) which is required to be disclosed by judicial or
administrative process or order, or by other requirements of law;
(ii) which is or becomes generally available to the public
other than as a result of a breach of this Section;
(iii) which is received from a third party who obtained such
information other than under an obligation of confidentiality; or
(iv) which Acquiror discloses on a nonconfidential basis or
otherwise makes available to the general public or the trade.
(b) The Principal Stockholder agrees that he shall not, for a
period of five years from the Closing Date, directly or indirectly own, manage,
engage in, participate in, provide advice to, be employed by, have a financial
interest in, or solicit or attempt to obtain business from any customer of
Acquiror or the Company or any of its Subsidiaries on behalf of, any enterprise
which provides records management or records storage services to business
facilities (including, without limitation, the management, handling, storage,
filing, processing and retrieval of medical records used by hospitals, private
practitioners, and other medical institutions) located in the United States.
This Section 3.6(b) shall not prohibit the Principal Stockholder from
owning Equity Securities of Acquiror or acquiring up to five percent (5%) of any
class of securities registered pursuant to the Exchange Act of any corporation
which may engage in the records management storage service business in direct
competition with the business of Acquiror within the geographical areas set
forth in this Section 3.6(b).
(c) The Principal Stockholder agrees that he shall not on his
own behalf or on behalf of any other Person under his control or on behalf of
others, for a period of five years from the Closing Date, directly or indirectly
solicit for employment (including as an independent contractor), or endeavor to
entice away, any of the officers, employees or independent contractors of
Acquiror or the Company or any of their respective subsidiaries who perform
services for Acquiror or the Company or any of their respective subsidiaries.
For the avoidance of doubt, Acquiror acknowledges that this Section 3.6(c) shall
not prohibit the Principal Stockholder from employing, on his own behalf or on
behalf of any other Person under his control or on behalf of others, a former
officer, employee or independent contractor of Acquiror or the Company or its
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subsidiaries who has ceased to perform services for Acquiror or the Company or
any of their respective subsidiaries without enticement by the Principal
Stockholder and who seeks employment (including as an independent contractor) by
the Principal Stockholder without solicitation by the Principal Stockholder.
(d) The Principal Stockholder acknowledges that he has
carefully read all the terms herein stated and agrees that the same are
necessary for the reasonable and proper protection of the value of the Company;
and that each and every covenant is reasonable with respect to such matter,
length of time, and the geographical areas described; and that irrespective of
all other conditions, the covenants and restrictions hereinabove provided shall
be operative during the full period and throughout the geographical area
described. In the event any court finds any such restraint or limitation to be
unreasonable, then it is the intent of the parties that such court should
determine the maximum restraint or limitation which is reasonable and
enforcement will be of that restraint or limitation.
(e) The Principal Stockholder acknowledges that confidential
information in his possession related to the Company and its Subsidiaries has
particular value, the loss of confidentiality of which by communication to
unauthorized persons cannot be reasonably or adequately compensated for by
damages alone. Moreover, the Principal Stockholder agrees that any breach of
paragraphs (a), (b) and (c) of this Section 3.6 would give rise to damages which
would be difficult to calculate. Therefore, the parties hereby agree that in the
event of a breach of any of the terms and conditions of this Section 3.6,
Acquiror shall be entitled to equitable relief by way of an injunction. This
Section 3.6 shall not be construed as a limitation upon Acquiror's remedies for
such breach.
(f) The restrictions contained in this Section 3.6 shall be
broadly construed by any court having jurisdiction of the matter in order to
protect Acquiror to the maximum degree possible.
ARTICLE IV
PROXY; WAIVER OF RIGHTS
4.1 Proxy. The Principal Stockholder hereby agrees, at any
meeting of the stockholders of the Company, however called, and at every
adjournment thereof, and in any action by written consent of the stockholders of
the Company, to (a) vote all of the shares of Company Stock then owned,
beneficially or of record, by him in favor of the adoption of the Merger
Agreement as in effect on the date hereof (as such agreement may be amended (1)
as contemplated by Section 7.3 of the Merger Agreement or (2) with the consent
of the Principal Stockholder) and each of the other transactions contemplated
thereby and any action required in furtherance thereof, (b) vote such shares
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation of
the Company under the Merger Agreement, and (c) vote such shares against any
Other Transaction or any other action
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or agreement that, directly or indirectly, is inconsistent with or that would,
or is reasonably likely to, directly or indirectly, impede, interfere with or
attempt to discourage the Merger or any other transaction contemplated by the
Merger Agreement, including, but not limited to (i) any extraordinary corporate
transaction (other than the Merger on the terms set forth in the Merger
Agreement), such as a merger, consolidation, business combination,
reorganization recapitalization or liquidation involving the Company, (ii) a
sale or transfer of a material amount of assets of the Company, or (iii) any
material change in the Company's corporate structure or business; provided,
however, that, if the Principal Stockholder is a member of the Board of
Directors of the Company, nothing herein shall be construed to obligate him to
act in his capacity as a director in any manner which may conflict with his
fiduciary duties as a director of the Company.
In furtherance of the foregoing, (i) the Principal Stockholder
hereby appoints Acquiror and the proper officers of Acquiror, and each of them,
with full power of substitution in the premises, his proxies to vote all his
shares of Company Capital Stock at any meeting, general or special, of the
stockholders of the Company, and to execute one or more written consents or
other instruments from time to time in order to take such action without the
necessity of a meeting of the stockholders of the Company, in accordance with
the provisions of the preceding paragraph and (ii) Acquiror hereby agrees to
vote such shares or execute written consents or other instruments in accordance
with the provisions of the preceding paragraph.
The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest and shall revoke all prior proxies granted by the Principal
Stockholder. The Principal Stockholder shall not grant any proxy to any person
which conflicts with the proxy granted herein, and any attempt to do so shall be
void. The power of attorney granted herein is a durable power of attorney and
shall survive the disability or incompetence of the Principal Stockholder.
4.2 Appraisal Rights. The Principal Stockholder hereby waives
his rights to appraisal under Section 262 of the DGCL with respect to any shares
of Company Stock owned by him in connection with the transactions contemplated
by the Merger Agreement. The Principal Stockholder hereby agrees that he will
not in any way attempt to influence, encourage or persuade any Person who
beneficially owns any Company Stock to exercise any rights to appraisal such
Person may have pursuant to Section 262 of the DGCL in connection with said
transactions.
ARTICLE V
MISCELLANEOUS
5.1 Termination. Except as otherwise expressly provided
herein, this Agreement and the parties' respective obligations hereunder shall
terminate upon the earlier to occur of (i) the mutual consent of Acquiror and
the Principal Stockholder, (ii) the termination of the Merger Agreement prior to
the consummation of the Merger (except in the event of a
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termination of the Merger Agreement pursuant to Section 7.1(d)(i) or (iii)
thereof, in which case this Agreement and the parties' respective obligations
hereunder shall terminate one year after such termination of the Merger
Agreement) (it being understood that the Principal Stockholder's obligations
under this Agreement shall not affect the Company's rights under the Merger
Agreement to terminate the Merger Agreement in accordance with the terms
thereof) and (iii) the tenth anniversary of the Closing Date.
5.2 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
5.3 Notices. Notices, requests, permissions, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand,
deposited in the United States mail (registered or certified, return receipt
requested), properly addressed and postage prepaid, or delivered by telecopy:
If to Acquiror, to:
Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chairman of the Board
with a copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Principal Stockholder, to:
Xxxx X. Xxxxxx
Keystone Capital, Inc.
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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with a copy to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
5.4 Counterparts. This Agreement may be executed in one or
more counterparts and each counterpart shall be deemed to be an original, but
all of which shall constitute one and the same original.
5.5 Applicable Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware without reference
to choice of law principles, including all matters of construction, validity and
performance.
5.6 Severability; Enforcement. The invalidity of any portion
hereof shall not affect the validity, force or effect of the remaining portions
hereof. If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that a
court of competent jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and agrees that such
scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction. In furtherance of the foregoing, if any court
construes any of the provisions of Section 3.6, or any part thereof, to be
unreasonable because of the duration of such provision or the geographic scope
thereof, such court shall have the power to reduce the duration or restrict the
geographic scope of such provision and to enforce such provision as so reduced
or restricted.
5.7 Further Assurances. Each party hereto shall execute and
deliver such additional documents as may be necessary or desirable to consummate
the transactions contemplated by this Agreement.
5.8 Parties in Interest; Assignment. Neither this Agreement
nor any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties. Notwithstanding the foregoing, for the purposes of Sections 3.5 and
3.6, the term Acquiror shall include any Entity controlling, controlled by or
under common control with Acquiror, any successor, by operation of law or
otherwise of Acquiror, or any entity controlling, controlled by or under common
control with Acquiror, and any assignee of Acquiror.
5.9 Entire Agreement. This Agreement and the Merger Agreement
and the Collateral Documents contain the entire understanding of the parties
hereto and thereto with respect to the subject matter contained herein and
therein, and supersede and cancel all prior
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agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter. There are no
restrictions, promises, representations, warranties, agreements or undertakings
of any party hereto or to the Merger Agreement or any of the Collateral
Documents with respect to the transactions contemplated by this Agreement and
the Merger Agreement and the Collateral Documents other than those set forth
herein or therein or made hereunder or thereunder.
5.10 Specific Performance. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
5.11 Headings; References. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Sections" or "Exhibits" shall be deemed to be references to Articles
or Sections hereof or Exhibits hereto unless otherwise indicated.
[Signatures appear on following page.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Xxxxxxx Xxxxx
Name: C. Xxxxxxx Xxxxx
Title: Chairman and Chief Executive Officer
/s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx
