EXHIBIT 10.12
JOINDER TO REGISTRATION RIGHTS AGREEMENT
This Joinder to Registration Rights Agreement (this "Agreement') is
made and entered into as of October 31, 1997 by and among Iron Mountain
Incorporated, a Delaware corporation (the "Company"), and Xxxx X. Xxxxxx, an
individual with a business address at Keystone Capital, Inc., 000 Xxxx Xxxx
Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 ("Dauten").
WHEREAS, the Company and certain of its Stockholders are parties to
that certain Amended and Restated Registration Rights Agreement dated as of June
12, 1997, as heretofore supplemented (the "Registration Rights Agreement"); and
WHEREAS, in accordance with the terms of the Registration Rights
Agreement, the Company and Dauten desire to admit Dauten as a Stockholder (this
and other capitalized terms used herein without definition are used with the
meanings given to such terms in the Registration Rights Agreement) under the
Registration Rights Agreement.
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:
1. The Agreement and Plan of Merger, dated as of September 17, 1997,
among the Company, IM-3 Acquisition Corp., a Delaware corporation, and HIMSCORP,
Inc. ("HIMSCORP"), shall be an "Equity Agreement" for purposes of the
Registration Rights Agreement. Notwithstanding the foregoing, only the shares of
Common Stock to be issued to Dauten thereunder shall be "Registrable Securities"
for purposes of the Registration Rights Agreement.
2. Dauten hereby (i) joins in and becomes party to the Registration
Rights Agreement as a Stockholder, (ii) agrees to be bound by and to perform all
obligations of a Stockholder under the Registration Rights Agreement, and (iii)
agrees that he shall not assign his rights under the Registration Rights
Agreement other than as expressly permitted by Section 9(a) thereof. For the
avoidance of doubt, Dauten shall be considered a "Significant Stockholder" for
purposes of the Registration Rights Agreement.
3. Pursuant to Section 1(b) of the Registration Rights Agreement,
Dauten, as a Significant Stockholder, and his permitted assigns shall have the
right to demand that the Company effect registration of all or part of the
Registrable Securities held by such Persons pursuant to said Section 1(b) on two
occasions; provided, however, that (i) in connection with the second such demand
(and, in the event of a third demand as a result of clause (ii) of this Section
3, in connection with the third such demand), the Company shall not be
responsible for the fees and disbursements of counsel to Dauten or any such
assigns and Dauten, or any such assigns, as the case may be, 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 Dauten and all such assigns and for all reasonable
out-of-pocket Registration Expenses incurred in satisfying any such registration
(other than Registration Expenses (a) in respect of any services that would
ordinarily be provided to the Company by its law or accounting firms whether
such demand had been made or not, (b) which are attributable to other
Stockholders or the Company participating in such registration and not related
to the registration on behalf of Dauten or any such assigns, and (c) set forth
in paragraph (j) of the definition thereof); and (ii) if, on the second of such
demands, the aggregate number of Registrable Securities held by Dauten and his
permitted assigns that are included in such registration is less than 75% of the
aggregate number of Registrable Securities requested by such Persons to be
included in such registration as a result of the limitations on the number of
Registrable Securities to be included in such registration pursuant to Section
1(a)(iii) of the Registration Rights Agreement or the last paragraph of Section
1(b) thereof, upon the payment by Dauten or any such assigns, as the case may
be, of any Registration Expenses owed by such Persons to the Company pursuant to
clause (i) of this Section, then Dauten and his permitted assigns shall be
entitled to demand that the Company effect registration of all or part of the
Registrable Securities held by Dauten and any such assigns pursuant to said
Section 1(b) on one more occasion. For the avoidance of doubt, Dauten and the
Company hereby agree that Dauten and his permitted assigns may withdraw the
second or, if applicable, third demand made by him or them under Section 1(b) of
the Registration Rights
Agreement if he or they reasonably believe that his or their ability to sell his
or their Registrable Securities under such offering will be limited due to the
participation of other Stockholders in such offering; provided, however, that
Dauten or any such assigns, as the case may be, shall reimburse the Company for
all Registration Expenses in respect of which Dauten and any such assigns would
have been responsible in accordance with this Section 3 that are incurred
through the date that Dauten or such assigns give the Company written notice of
the withdrawal of such demand.
4. Pursuant to Section 5(b) of the Registration Rights Agreement, the
rights of Dauten, as a Significant Stockholder, under Section 1(b) of the
Registration Rights Agreement will terminate on the sixth anniversary of the
date hereof.
5. Except to the extent specifically supplemented hereby, the
provisions of the Registration Rights Agreement shall remain unmodified. The
Registration Rights Agreement, as supplemented hereby, is confirmed as being in
full force and effect. This Agreement may be executed in any number of
counterparts, which together shall constitute one instrument, shall be governed
by and construed in accordance with the laws (other than the conflict of laws
rules) of the Commonwealth of Massachusetts and shall bind and inure to the
benefit of the parties hereto and their respective permitted successors and
assigns.
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
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Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
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