<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------
Schedule 13D
-------------------
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO 13d-
1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
Under the Securities Exchange Act of 1934
Iron Mountain Incorporated
(Name of Issuer)
Common Stock
(Title of Class of Securities)
46284P 10 4
(CUSIP Number)
with a copy to:
Kent P. Dauten Edward T. Swan
Keystone Capital, Inc. KIRKLAND & ELLIS
520 Lake Cook Road, Suite 450 200 East Randolph Drive
Deerfield, Illinois 60015 Chicago, Illinois 60601
(847) 236-5350 (312) 861-2465
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 31, 1997
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following page(s))
Page 1 of 10 Pages
Exhibit Index is on page 9
<PAGE>
SCHEDULE 13D
- ----------------------- ---------------------
CUSIP NO. 46284P 10 4 PAGE 2 OF 10 PAGES
- ----------------------- ---------------------
- ------------------------------------------------------------------------------
NAME OF REPORTING PERSON
1
Kent P.. Dauten
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
- ------------------------------------------------------------------------------
CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
2 (a) [_]
(b) [x]
- ------------------------------------------------------------------------------
SEC USE ONLY
3
- ------------------------------------------------------------------------------
SOURCE OF FUNDS*
4
SC
- ------------------------------------------------------------------------------
CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [_]
5
- ------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6
United States of America
- ------------------------------------------------------------------------------
SOLE VOTING POWER
7
NUMBER OF
939,485.11 (7.0%)
SHARES -----------------------------------------------------------
SHARED VOTING POWER
BENEFICIALLY 8
OWNED BY 24,598.89 (0.2%)
-----------------------------------------------------------
EACH SOLE DISPOSITIVE POWER
9
REPORTING 851,580.00 (6.3%)
PERSON -----------------------------------------------------------
SHARED DISPOSITIVE POWER
WITH 10
112,504.00 (0.8%)
- ------------------------------------------------------------------------------
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
11
939,485.11
- ------------------------------------------------------------------------------
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
12
[x]
- ------------------------------------------------------------------------------
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
13
7.0%
- ------------------------------------------------------------------------------
TYPE OF REPORTING PERSON*
14
IN
- ------------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 3 of 10 Pages]
Item 1. Security and Issuer.
This statement relates to shares of Common Stock, par value $.01 per
share (the "Common Stock"), of Iron Mountain Incorporated, a Delaware
corporation (the "Issuer"), that were issued by the Issuer on October 31, 1997.
The Issuer's principal executive offices are located at 745 Atlantic Avenue,
10th Floor, Boston, Massachusetts 02110.
Item 2. Identity and Background.
(a) This statement is being filed by the following person pursuant to
Rule 13d-(1)(a) under the Securities Exchange Act of 1934, as amended (the
"Act"): Kent P. Dauten, an individual, by virtue of his ownership of more than
5% of the outstanding Common Stock of the Issuer. Mr. Dauten is referred to
herein as the "Reporting Person."
(b) The principal business address of the Reporting Person is c/o
Keystone Capital, Inc., 520 Lake Cook Road, Suite 450, Deerfield, Illinois
60015.
(c) The Reporting Person is a venture capitalist and private equity
investor and is the president of Keystone Capital, Inc., an Illinois corporation
with a principal business address of 520 Lake Cook Road, Suite 450, Deerfield,
Illinois 60015 ("Keystone"), which provides financial and management advisory
services to entities owned or controlled by the Reporting Person.
(d) During the last five years, the Reporting Person has not been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors).
(e) During the last five years, the Reporting Person was not a party
to a civil proceeding of a judicial or administrative body of competent
jurisdiction as a result of which any such person was or is subject to a
judgment, decree or final order enjoining future violations of, or prohibiting
or mandating activities subject to, federal or state securities laws or finding
any violation with respect to such laws.
(f) The Reporting Person is a citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
The Common Stock acquired by the Reporting Person was acquired in
connection with the merger (the "Merger") of HIMSCORP, Inc., a Delaware
corporation ("HIMSCORP"), with and into Iron Mountain Records Management, Inc.,
a Delaware corporation and wholly owned subsidiary of the Issuer ("IMRM"),
pursuant to that certain Agreement and Plan of Merger (the "Merger Agreement"),
dated as of September 17, 1997, by and among HIMSCORP, the Issuer and IM-3
Acquisition Corp., a Delaware corporation ("IM-3"). The Merger Agreement is
attached hereto as Exhibit A. The Reporting Person at all times since February
1, 1995 (i.e., the date of initial
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 4 of 10 Pages]
issuance of shares of HIMSCORP) has been the holder of a majority of the voting
securities of HIMSCORP. Pursuant to the terms of the Merger Agreement, each
outstanding share of HIMSCORP common stock was converted into the right to
receive an amount of cash and an amount of Common Stock of the Issuer.
Accordingly, the outstanding shares of HIMSCORP common stock owned by the
Reporting Person were converted into the number of shares of Common Stock of the
Issuer acquired by the Reporting Person on October 31, 1997.
Item 4. Purpose of Transaction.
The following is a summary of the principal terms of the transaction.
This summary is qualified in its entirety by reference to the definitive
agreements referred to herein and attached hereto as exhibits.
The Merger Agreement was entered into by HIMSCORP, the Issuer and IM-3
as of September 17, 1997. The transactions contemplated by the Merger Agreement
were structured to achieve a partially tax-free exchange of the outstanding
common stock of HIMSCORP in return for shares of Common Stock of the Issuer.
The closing of the Merger occurred on October 31, 1997. In connection with the
Merger, the former stockholders of HIMSCORP received, in the aggregate,
1,202,369.00 shares of Common Stock of the Issuer, together with $24,929,224.88
in cash.
Pursuant to the terms of the Merger Agreement, the Issuer has agreed
to nominate the Reporting Person to the board of directors of the Issuer (the
"Board"). As such, the Reporting Person anticipates that he will be elected as
a director of the Issuer at the next regularly scheduled meeting of the Board,
which meeting is currently scheduled for December 8, 1997.
As a condition to the obligation of the Issuer to consummate the
Merger, each former stockholder of HIMSCORP was required to, and did, execute
and deliver an Investment Agreement in the form attached hereto as Exhibit B
(collectively, the "Investment Agreements"). The Investment Agreements include
certain acknowledgments and agreements by such former stockholders of HIMSCORP
for securities law purposes and also include a so-called "lock up" agreement
pursuant to which (in order to protect the partially tax-free nature of the
Merger) such former stockholders of HIMSCORP (including the Reporting Person)
have agreed not to sell, transfer or otherwise dispose of approximately 75% (as
more particularly calculated in accordance with a formula set forth in each of
the Investment Agreements) of the shares of Common Stock received by them,
respectively, for a period of one year from the date of the Merger. In
addition, in connection with the issuance of certain legal opinions regarding
the tax-free nature of the Merger, the Reporting Person executed and delivered a
certificate both to counsel to HIMSCORP and to counsel to the Issuer certifying
that the Reporting Person had, as of the date of the Merger, no present plan or
intention to sell, transfer or otherwise dispose of more than 16 2/3% of the
shares of Common Stock received by him in connection with the Merger.
Pursuant to a Joinder to Registration Rights Agreement, dated as of
October 31, 1997, by and between Issuer and the Reporting Person (the
"Registration Rights Agreement"), the Issuer
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 5 of 10 Pages]
has granted to the Reporting Person certain demand and piggyback registration
rights with respect to the Common Stock issued to the Reporting Person pursuant
to the Merger, including the right, on up to three occasions, to request the
Issuer (in some cases at the Issuer's expense) to register such shares of Common
Stock for sale to the public.
Pursuant to the Stockholder Agreement, dated as of September 17, 1997,
by and between the Issuer and the Reporting Person (the "Stockholder
Agreement"), which is attached hereto as Exhibit C, the Reporting Person (i)
represented that, as of the date of such Agreement and as of the date of the
Merger, the Reporting Person had no present plan or intention to sell, transfer
or otherwise dispose of more than 16 2/3% of the shares of Common Stock received
by the Reporting Person in connection with the Merger and (ii) agreed, until
September 17, 2007 for so long as the Reporting Person beneficially owns 5% or
more of the outstanding shares of Common Stock of the Issuer, not to, and to use
best efforts to cause certain related persons not to, without the prior written
consent of the Board, (A) in any manner acquire, agree to acquire or make any
proposal to acquire, directly or indirectly, any Equity Securities (as defined
in Rule 405 promulgated under the Securities Act of 1933, as amended (the
"Securities Act")) of the Issuer or any rights or options to acquire such Equity
Securities (other than the shares of Common Stock received by him in the Merger
and other than options granted to directors of the Issuer), (B) propose to enter
into, directly or indirectly, a merger or other business combination involving
the Issuer or propose to purchase, directly or indirectly, a material portion of
the assets of the Issuer, (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 Securities Exchange Act of 1934, as amended (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 (as defined in Rule 405 promulgated under the Securities Act)
of the Issuer, (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 the Issuer, (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 the Issuer;
provided, however, that the foregoing shall not limit the ability to vote any
shares of any Equity Securities of the Issuer, (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 the Issuer to make a public announcement
regarding the possibility of a transaction between the Reporting Person and the
Issuer (including any of their respective affiliates).
In connection with the Merger, the Issuer, HIMSCORP, the Reporting Person
(as agent for of the former stockholders of HIMSCORP) and State Street Bank and
Trust Company, as escrow agent (the "Escrow Agent"), entered into the Escrow
Agreement attached hereto as Exhibit D (the "Escrow Agreement"). Pursuant to
the terms of the Escrow Agreement, upon consummation of the Merger, the Issuer
delivered to the Escrow Agent a stock certificate registered in the name of the
Reporting Person, as agent under the Escrow Agreement, representing 112,504.00
shares of Common Stock (the "Escrow Indemnity Funds"). The purpose of the
Escrow Indemnity Funds is to satisfy certain indemnification obligations of the
former stockholders of HIMSCORP to the Issuer
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 6 of 10 Pages]
under the Merger Agreement. The Escrow Indemnity Funds shall be disbursed to
the Issuer from time to time or to former stockholders of HIMSCORP after a
period of one year following the Closing Date, only in accordance with the terms
of the Escrow Agreement. The Issuer's right to indemnification is limited to
the lesser of (i) the shares of Common Stock held in escrow and (ii) $2,500,000.
Accordingly, Iron Mountain may only collect up to $2,500,000 in value of shares
of Common Stock based upon the Escrow Determination Price (as defined below).
The Escrow Indemnity Funds were subtracted on a ratable basis from the number of
shares of Common Stock to be received by each of the former stockholders of
HIMSCORP.
If a distribution of capital or stock dividend is made on or in respect of
shares of Common Stock, or any money or property is distributed with respect to
shares of Common Stock, pursuant to a recapitalization or reclassification of
the capital of the Issuer, or pursuant to a reorganization or liquidation or
dissolution of the Issuer, the money or property to be distributed with respect
to the Escrow Indemnity Funds will be delivered to the Escrow Agent to be held
by it as part of the Escrow Indemnity Funds. Each former stockholder of
HIMSCORP is entitled to receive all ordinary cash dividends paid in respect of
his or her shares of Common Stock forming part of the Escrow Indemnity Funds.
In connection with any vote and or consents in respect of such shares, the
Reporting Person, as agent for the former stockholders of HIMSCORP, shall vote
such shares in accordance with the directions of each former stockholder of
HIMSCORP. The Reporting Person, as agent for the former stockholders of
HIMSCORP, will tabulate all such votes and consents and vote them accordingly
(such aggregate number to be rounded down to the nearest whole number in each
case).
Upon written instructions to the Escrow Agent and notice to the Reporting
Person from the Issuer, the Escrow Agent will make payments out of the Escrow
Indemnity Funds to the Issuer, in accordance with such instructions, unless the
Reporting Person objects to such payment. If at any time when the Issuer gives
instructions to the Escrow Agent and notice to the Reporting Person of a claim,
the Escrow Agent receives a notice from the Reporting Person that a dispute
exists relating to the Issuer's right to that portion of the Escrow Indemnity
Funds claimed in the Issuer's instructions and notice, the Escrow Agent will
retain custody of that portion of the Escrow Indemnity Funds which relates to
the unresolved claim until the first to occur of the following events: (i)
receipt by the Escrow Agent of a notice signed by the Issuer and the Reporting
Person that the dispute has been resolved; or (ii) receipt by Escrow Agent of a
final order of a court of competent jurisdiction resolving the dispute and
directing the disposition of that portion of the Escrow Indemnity Funds, after
which the Escrow Agent shall promptly pay that portion of the Escrow Indemnity
Funds which relates to such unresolved claim in accordance with such notice or
order. Payments made from the Escrow Indemnity Funds shall be made by
transferring shares of Common Stock representing a number of shares of Common
Stock equal to the quotient obtained by dividing (a) the amount of such claim by
(b) the average closing price per share of Common Stock for the period of 20
trading days ending three trading days prior to the date of such payment (the
"Escrow Determination Price"). Any payment which would result in the
disbursement of a fractional share of Common Stock will be rounded to the
nearest whole share. In the event that any payment is made pursuant to the
Escrow Agreement, the Issuer will deliver to the Escrow Agent a new Certificate
registered in the name of the Reporting Person, as agent for the former
stockholders of HIMSCORP, representing the number
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 7 of 10 Pages]
of shares in the original certificate delivered to the Escrow Agent less such
shares disbursed in the payment and all previous payments.
After the expiration of one year from the date of the closing of the Merger
Agreement (the "Escrow Indemnity Period"), the Escrow Agent will mail to each
former stockholder of HIMSCORP a certificate for shares of Common Stock which
will be each such former stockholder's ratable portion of the Escrow Indemnity
Funds less all portions paid to the Issuer during the Escrow Indemnity Period or
to be paid to the Issuer to cover certain reimbursements to the Issuer and less
any amounts which are the subject of unresolved claims. Upon the resolution of
all such unresolved claims and the payment of all such fees, expenses and costs
out of the Escrow Indemnity Funds, the balance of the Escrow Indemnity Funds, if
any, will be distributed to the persons entitled thereto.
The Escrow Agreement will terminate upon the earlier to occur of (a)
disbursement or release of all of the Escrow Indemnity Funds by the Escrow Agent
as provided in the Escrow Agreement and (b) the written mutual consent signed by
each of the parties thereto.
In connection with the Merger, Keystone, a corporation wholly owned by
the Reporting Person, and IMRM entered into an Amended and Restated Advisory
Agreement pursuant to which Keystone will provide certain financial advisory
services to IMRM, and IMRM will pay Keystone a monthly fee of $20,000, for an
indefinite period extending until termination by either party upon prior written
notice to the other party.
Except as described in this Item 4, the Reporting Person has not
formulated any plans or proposals which relate to or would result in: (a) the
acquisition by any person of additional securities of the Issuer, or the
disposition of securities of the Issuer; (b) an extraordinary corporate
transaction, such as a merger, reorganization or liquidation, involving the
Issuer or any of its subsidiaries; (c) a sale or transfer of a material amount
of assets of the Issuer or any of its subsidiaries; (d) any change in the
present Board of Directors or management of the Issuer, including any plans or
proposals to change the number or term of directors or to fill any existing
vacancies on the Board; (e) any material change in the present capitalization or
distribution policy of the Issuer; (f) any other material change in the Issuer's
business or corporate structure; (g) any changes in the Issuer's Certificate of
Incorporation or other actions which may impede the acquisition of control of
the Issuer by any person; (h) causing a class of securities of the Issuer to be
delisted from a national securities exchange or to cease to be authorized to be
quoted in an interdealer quotation system of a registered national securities
association; (i) causing a class of equity securities of the Issuer to become
eligible for termination of registration pursuant to Section 12(g)(4) of the
Act; or (j) any action similar to those enumerated above.
Item 5. Interest in Securities of the Issuer.
(a) The Reporting Person is the beneficial owner of 939,485.11 shares
of Common Stock, which in the aggregate represent approximately 7.0% of the
outstanding Common Stock of the Issuer. The percentage calculated in this Item
5 is based upon 13,445,174 shares of Common
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 8 of 10 Pages]
Stock outstanding immediately following the Merger, which number of outstanding
shares of Common Stock was provided by the Issuer to the Reporting Person on
November 5, 1997. The filing of this Statement shall not be construed as an
admission by the Reporting Person that, for the purpose of Section 13(d) or
13(g) of the Act, the Reporting Person is the beneficial owner of any securities
covered by this Statement other than securities owned of record by the Reporting
Person and other than the 87,905.11 shares of Common Stock beneficially owned by
the Reporting Person that are being held in escrow pursuant to the terms of the
Escrow Agreement.
Except as indicated in this Item 5 or as set forth below, the
Reporting Person does not own beneficially, or have any right to acquire,
directly or indirectly, any Common Stock.
(b) As more fully described in the following paragraphs in this Item
5(b): (1) the Reporting Person has the sole power to vote or to direct the vote
of 939,485.11 shares of Common Stock; (2) the Reporting Person has shared power
to vote or to direct the vote of 24,598.89 shares of Common Stock; (3) the
Reporting Person has sole power to dispose or to direct the disposition of
851,580.00 shares of Common Stock; and (4) the Reporting Person has shared power
to dispose or to direct the disposition of 112,504.00 shares of Common Stock.
The Reporting Person owns of record, as of the date hereof, 851,580.00
shares of Common Stock over which the Reporting Person has sole voting power.
In addition, the Reporting Person beneficially owns 87,905.11 shares of Common
Stock that are being held in escrow pursuant to the terms of the Escrow
Agreement. As discussed above, pursuant to the terms of the Escrow Agreement,
the beneficial owner of shares of Common Stock being held in such escrow has the
right to direct the vote of such shares. Because the reporting person is both
the beneficial owner and the record owner of such shares, the Reporting Person
has the sole power to vote and to direct the vote of 87,905.11 shares, which
when added to the 851,580.00 shares directly held of record by the Reporting
Person, equals an aggregate of 939,485.11 shares of Common Stock over which the
Reporting Person has the sole power to vote and direct the vote.
The Reporting Person is, pursuant to the terms of the Escrow
Agreement, the agent for, and record owner of, 24,958.89 shares of Common Stock
being held in escrow pursuant to the terms of the Escrow Agreement (which shares
are beneficially owned by other former stockholders of HIMSCORP). Accordingly,
the Reporting Person has the shared power to vote (i.e., the power to vote as
directed by such former stockholders of HIMSCORP) such 24,958.89 shares of
Common Stock.
The Reporting Person directly owns of record 851,580.00 shares of
Common Stock and has the sole power to dispose and direct the disposition of
such shares.
As discussed above, the Reporting Person is, pursuant to the terms of
the Escrow Agreement, the agent for, and record owner of, 87,905.11 shares of
Common Stock being held in escrow on behalf of all of the former stockholders of
HIMSCORP (including the Reporting Person) pursuant to the terms of the Escrow
Agreement. Pursuant to the terms of the Investment Agreements described above,
each former stockholder of HIMSCORP has appointed the Reporting Person as
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 9 of 10 Pages]
such person's agent and attorney-in-fact to take all actions under the Escrow
Agreement to direct the Escrow Agent as to the disposition of payments, claims
and similar matters. As a result, although the former stockholders of HIMSCORP
are the beneficial owners of the respective number of shares being held in
escrow on their respective behalf under the Escrow Agreement, the Reporting
Person has the power under certain circumstances to direct the disposition of
such shares.
(c) Other than the acquisition of shares of Common Stock in connection
with the Merger (as more fully described above), the Reporting Person has not
effected a transaction in Common Stock during the past 60 days. The Reporting
Person has not previously filed a Schedule 13D with respect to securities of the
Issuer.
(d) No person other than the Reporting Person has the right to
receive or the power to direct the receipt of distributions from, or the
proceeds from the sale of, the Common Stock beneficially owned by the Reporting
Person.
(e) Not applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships with Respect
to Securities of the Issuer.
Except as otherwise set forth above, to the best knowledge of the
Reporting Person, no contracts, arrangements, understandings or relationships
(legal or otherwise) exist among the person named in Item 2 or between such
person and any other person with respect to any securities of the Issuer,
including but not limited to transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees of profits, division of profits or loss, or the giving or withholding
of proxies.
Item 7. Material to be Filed as Exhibits.
Exhibit A -- Merger Agreement.
Exhibit B -- Form of Investment Agreement.
Exhibit C -- Stockholder Agreement.
Exhibit D -- Escrow Agreement.
<PAGE>
[CUSIP No. 46284P 10 4] Schedule 13 D [Page 10 of 10 Pages]
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this Statement is true, complete and
correct.
November 10, 1997
---------------------------
(Date)
/s/ Kent P. Dauten
---------------------------
(Signature)
Kent P. Dauten
---------------------------
(Name/Title)
The original statement shall be signed by each person on whose behalf
the statement is filed or his authorized representative. If the statement is
signed on behalf of a person by his authorized representative (other than an
executive officer or general partner of the filing person), evidence of the
representative's authority to sign on behalf of such person shall be filed with
the statement, provided, however, that a power of attorney for this purpose
which is already on file with the Commission may be incorporated by reference.
The name of any title of each person who signs the statement shall be typed or
printed beneath his signature.
Attention: Intentional misstatements or omissions of fact constitute
federal criminal violations (see 18 U.S.C. 1001).
<PAGE>
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
By and Among
IRON MOUNTAIN INCORPORATED,
IM-3 ACQUISITION CORP.
and
HIMSCORP, INC.
dated as of
September 17, 1997
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
<S> <C> <C>
ARTICLE 1. THE MERGER................................................................................................... 2
Section 1.1. The Merger............................................................................................. 2
Section 1.2. Action by Stockholders................................................................................. 2
Section 1.3. Closing................................................................................................ 2
Section 1.4. Effective Time......................................................................................... 2
Section 1.5. Effect of the Merger................................................................................... 3
Section 1.6. Certificate of Incorporation........................................................................... 3
Section 1.7. Bylaws................................................................................................. 3
Section 1.8. Directors and Officers................................................................................. 3
ARTICLE 2. CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES; PAYMENT OF INDEBTEDNESS.................................. 3
Section 2.1. Conversion of Securities............................................................................... 3
Section 2.2. Exchange of Certificates; Exchange Agent and Exchange Procedures....................................... 5
Section 2.3. Stock Transfer Books................................................................................... 7
Section 2.4. Dissenting Shares...................................................................................... 7
Section 2.5. Payment of Indebtedness................................................................................ 8
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................................................................ 8
Section 3.1. Organization and Business; Power and Authority; Effect of Transaction.................................. 8
Section 3.2. Financial and Other Information........................................................................ 10
Section 3.3. Changes in Condition................................................................................... 11
Section 3.4. Liabilities............................................................................................ 11
Section 3.5. Title to Properties; Leases............................................................................ 12
Section 3.6. Compliance with Private Authorizations................................................................. 13
Section 3.7. Compliance with Governmental Authorizations and Applicable Law......................................... 13
Section 3.8. Intangible Assets...................................................................................... 14
Section 3.9. Related Transactions................................................................................... 15
Section 3.10. Insurance.............................................................................................. 15
Section 3.11. Tax Matters............................................................................................ 15
Section 3.12. ERISA.................................................................................................. 17
Section 3.13. Authorized and Outstanding Capital Stock............................................................... 19
Section 3.14. Employment Arrangements................................................................................ 19
Section 3.15. Material Agreements.................................................................................... 20
Section 3.16. Ordinary Course of Business............................................................................ 21
Section 3.17. Bank Accounts, Etc..................................................................................... 22
Section 3.18. Adverse Restrictions................................................................................... 23
Section 3.19. Broker or Finder....................................................................................... 23
Section 3.20. Environmental Matters.................................................................................. 23
Section 3.21. Operational Matters.................................................................................... 24
Section 3.22. Materiality............................................................................................ 25
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF ACQUIROR AND ACQUIROR MERGER SUBSIDIARY.................................... 25
Section 4.1. Organization and Qualification; Power and Authority; Effect of Transaction............................. 25
Section 4.2. Capitalization of Acquiror and Acquiror Merger Subsidiary.............................................. 26
Section 4.3. SEC Filings; Financial Statements...................................................................... 26
Section 4.4. Brokers................................................................................................ 27
Section 4.5. No Intent to Dispose of Assets, etc.................................................................... 28
ARTICLE 5. ADDITIONAL COVENANTS......................................................................................... 28
Section 5.1. Access to Information; Confidentiality................................................................. 28
Section 5.2. Agreement to Cooperate................................................................................. 29
</TABLE>
<PAGE>
<TABLE>
<S> <C> <C>
Section 5.3. Investment Agreements; Registration Rights Agreement....................................................... 31
Section 5.4. No Solicitation............................................................................................ 31
Section 5.5. Directors' and Officers' Indemnification................................................................... 32
Section 5.6. Notification of Certain Matters............................................................................ 32
Section 5.7. Public Announcements....................................................................................... 32
Section 5.8. Obligations of Acquiror.................................................................................... 33
Section 5.9. Employee Benefits; Severance Policy........................................................................ 33
Section 5.10. Certain Actions Concerning Business Combinations........................................................... 33
Section 5.11. Tax Treatment.............................................................................................. 33
Section 5.12. Pre-Closing Covenants of the Company and its Subsidiaries.................................................. 34
ARTICLE 6. CLOSING CONDITIONS............................................................................................... 35
Section 6.1. Conditions to Obligations of Each Party to Effect the Merger............................................... 36
Section 6.2. Conditions to Obligations of Acquiror and Acquiror Merger Subsidiary....................................... 36
Section 6.3. Conditions to Obligations of the Company................................................................... 38
ARTICLE 7. TERMINATION, AMENDMENT AND WAIVER................................................................................ 39
Section 7.1. Termination................................................................................................ 39
Section 7.2. Effect of Termination...................................................................................... 40
Section 7.3. Amendment.................................................................................................. 40
Section 7.4. Waiver..................................................................................................... 41
Section 7.5. Fees, Expenses and Other Payments.......................................................................... 41
Section 7.6. Effect of Investigation.................................................................................... 41
ARTICLE 8. INDEMNIFICATION; COMPANY INDEBTEDNESS CALCULATION................................................................ 41
Section 8.1. Survival................................................................................................... 41
Section 8.2. Escrow; Indemnification.................................................................................... 42
Section 8.3. Limitation of Liability; Disposition of Escrow Indemnity Funds............................................. 43
Section 8.4. Notice of Claims........................................................................................... 44
Section 8.5. Defense of Third Party Claims.............................................................................. 45
Section 8.6. Company Indebtedness Calculation........................................................................... 45
Section 8.7. Exclusive Remedy........................................................................................... 46
Section 8.8. Determination of Loss and Expense.......................................................................... 46
ARTICLE 9. GENERAL PROVISIONS............................................................................................... 46
Section 9.1. Notices.................................................................................................... 46
Section 9.2. Headings................................................................................................... 47
Section 9.3. Severability............................................................................................... 47
Section 9.4. Entire Agreement........................................................................................... 47
Section 9.5. Assignment................................................................................................. 48
Section 9.6. Parties in Interest........................................................................................ 48
Section 9.7. Governing Law.............................................................................................. 48
Section 9.8. Enforcement of the Agreement............................................................................... 48
Section 9.9. Counterparts............................................................................................... 49
Section 9.10. Mutual Drafting............................................................................................ 49
ARTICLE 10. DEFINITIONS...................................................................................................... 49
</TABLE>
EXHIBITS
5.3(a)(i) Form of Investment Agreement
5.3(a)(ii) Form of Noncompetition and Nonsolicitation Agreement
5.3(b) Form of Joinder to Registration Rights Agreement
5.11 Form of Representations supporting tax opinions
6.2(c) Form of Opinion of Kirkland & Ellis
6.3(a) Form of Opinion of Sullivan & Worcester LLP
<PAGE>
8.3 Form of Escrow Agreement
SCHEDULES
Indebtedness Schedule
Disclosure Schedule
Acquiror Disclosure Schedule
Class A/Class B Calculation Schedule
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of September 17, 1997, among Iron
Mountain Incorporated, a Delaware corporation ("Acquiror"), IM-3 Acquisition
Corp., a Delaware corporation and a wholly owned Subsidiary of Acquiror
("Acquiror Merger Subsidiary"), and HIMSCORP, Inc., a Delaware corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, upon the terms and subject to the conditions of this Agreement
(this and other capitalized terms used herein are either defined in Section 10
below or in another Section of this Agreement and, in such case, Article 10
includes a reference to such Section), in accordance with the General
Corporation Law of the State of Delaware (the "DGCL"), the Company and Acquiror
Merger Subsidiary will carry out a business combination transaction pursuant to
which the Company will merge with and into Acquiror Merger Subsidiary (the
"Merger") and the stockholders of the Company (the "Stockholders") will convert
their holdings into a combination of cash and shares of Common Stock, par value
$.01 per share, of Acquiror ("Acquiror Stock");
WHEREAS, the Board of Directors of the Company has unanimously determined
that the Merger is fair to, and in the best interests of, the Company and the
Stockholders and has approved and adopted this Agreement as a tax-free plan of
reorganization within the provisions of Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"), has approved this Agreement, the Merger
and the Transactions and has recommended approval and adoption of this
Agreement, the Merger and the Transactions by the Stockholders;
WHEREAS, contemporaneously with the execution of this Agreement, the
Principal Stockholder has executed and delivered a written consent voting all
shares of Company Stock owned by him in favor of adoption of this Agreement and
the Merger; and
WHEREAS, the Board of Directors of Acquiror has unanimously approved and
adopted this Agreement, the Merger and the Transactions, and Acquiror has
approved and adopted this Agreement, the Merger and the Transactions as the sole
stockholder of Acquiror Merger Subsidiary;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto, intending to be legally bound, agree as follows:
<PAGE>
ARTICLE 1.
THE MERGER
Section 1.1. The Merger. Upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the DGCL at the Effective
Time, the Company shall be merged with and into Acquiror Merger Subsidiary. As a
result of the Merger, the separate existence of the Company shall cease and
Acquiror Merger Subsidiary shall continue as the surviving corporation of the
Merger (the "Surviving Corporation").
Section 1.2. Action by Stockholders.
(a) The Company, acting through its Board of Directors, shall, in
accordance with and subject to Applicable Law and its Organic Documents: as
soon as practicable, solicit the written consent from the Stockholders (other
than the Principal Stockholder, who has already executed a written consent), for
the purpose of adopting and approving this Agreement, the Merger and the
Transactions (the "Special Meeting"); include in any materials delivered to the
Stockholders in connection with the solicitation of written consents the
conclusion and recommendation of the Board of Directors to the effect that the
Board of Directors, having determined that this Agreement, the Merger and the
Transactions are in the best interests of the Company and the Stockholders, has
approved this Agreement, the Merger and the Transactions and recommends that the
Stockholders vote in favor of the approval and adoption of this Agreement, the
Merger and the Transactions; and use its best efforts to obtain the necessary
approval and adoption of this Agreement, the Merger and the Transactions by the
Stockholders.
(b) Acquiror hereby represents that Acquiror, as sole stockholder of
Acquiror Merger Subsidiary, has approved and adopted this Agreement, the Merger
and the Transactions. Acquiror shall take all additional actions as sole
stockholder of Acquiror Merger Subsidiary necessary to adopt and approve and
effectuate the provisions of this Agreement, the Merger and the Transactions.
Section 1.3. Closing. Unless this Agreement shall have been terminated
pursuant to Section 7.1 hereof and the Merger and the Transactions shall have
been abandoned, the closing of the Merger (the "Closing") will take place at
10:00 A.M., local time, on the fifth business day (the "Closing Date") after the
date on which the last of the conditions set forth in Article 6 is satisfied or
waived (other than conditions requiring deliveries at the Closing), at the
offices of Sullivan & Worcester LLP, One Post Office Square, Boston,
Massachusetts, unless another date, time or place is agreed to in writing by the
Company and Acquiror.
Section 1.4. Effective Time. As promptly as practicable after the
satisfaction or, if permissible, waiver of the conditions set forth in Article 6
(but subject to Section 1.3
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hereof), the Parties shall cause the Merger to be consummated by filing a
certificate of merger with the Secretary of State of the State of Delaware, and
by making any related filings required under the DGCL. The Merger shall become
effective at such time (but not prior to the Closing Date) as such certificate
is duly filed with the Secretary of State of the State of Delaware, or at such
later time as is specified in such certificate (the "Effective Time").
Section 1.5. Effect of the Merger. From and after the Effective Time, the
Surviving Corporation shall possess all the rights, privileges, powers and
franchises and be subject to all of the restrictions, disabilities and duties of
the Company and Acquiror Merger Subsidiary, and the Merger shall otherwise have
the effects, all as provided under the DGCL.
Section 1.6. Certificate of Incorporation. From and after the Effective
Time, the Certificate of Incorporation of Acquiror Merger Subsidiary as in
effect immediately prior to the Effective Time shall be the Certificate of
Incorporation of the Surviving Corporation, until amended in accordance with
Applicable Law, and the name of the Surviving Corporation shall be such name as
Acquiror may elect.
Section 1.7. Bylaws. From and after the Effective Time, the bylaws of
Acquiror Merger Subsidiary as in effect immediately prior to the Effective Time
shall be the bylaws of the Surviving Corporation, until amended in accordance
with Applicable Law.
Section 1.8. Directors and Officers. From and after the Effective Time,
until successors are duly elected or appointed and qualified (or their earlier
resignation or removal) in accordance with Applicable Law the directors of
Acquiror Merger Subsidiary at the Effective Time shall be the directors of the
Surviving Corporation and the officers of Acquiror Merger Subsidiary at the
Effective Time shall be the officers of the Surviving Corporation. Kent P.
Dauten shall be appointed or elected as a Class A Director of Acquiror effective
as of the Effective Time, to hold office in accordance with the Restated
Certificate of Incorporation and By-Laws of Acquiror.
ARTICLE 2.
CONVERSION OF SECURITIES; EXCHANGE OF CERTIFICATES;
PAYMENT OF INDEBTEDNESS
Section 2.1. Conversion of Securities. At the Effective Time, by virtue
of the Merger and without any action on the part of Acquiror Merger Subsidiary,
the Company or the holders of any of the following securities:
(a) Each share of Class A Common Stock, par value $.01 per share, of the
Company (the "Class A Company Stock") issued and outstanding immediately prior
to the Effective Time (other than any shares of Class A Company Stock to be
cancelled pursuant to Section 2.1(b) and any Dissenting Shares of Class A
Company Common Stock), shall be
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<PAGE>
converted into the right to receive, subject to Section 5.3(a) hereof and the
indemnification provisions of Article 8 hereof, (i) that number equal to the
Class A Stock Conversion Number of fully paid and nonassessable shares of
Acquiror Stock (the "Class A Stock Merger Consideration") and (ii) cash in an
amount equal to the Class A Cash Conversion Number (the "Class A Cash Merger
Consideration"), and each share of Class B Common Stock, par value $.01 per
share, of the Company (the "Class B Company Stock") issued and outstanding
immediately prior to the Effective Time (other than any shares of Class B
Company Stock to be cancelled pursuant to Section 2.1(b) and any Dissenting
Shares of Class B Company Stock), shall be converted into the right to receive,
subject to Section 5.3(a) hereof and the indemnification provisions of Article 8
hereof, (i) that number equal to the Class B Stock Conversion Number of fully
paid and nonassessable shares of Acquiror Stock (the "Class B Stock Merger
Consideration") and (ii) cash in an amount equal to the Class B Cash Conversion
Number (the "Class B Cash Merger Consideration"). At the Effective Time, all
shares of Company Stock (the "Shares") shall no longer be outstanding and shall
automatically be cancelled and retired and shall cease to exist, and
certificates previously evidencing any such Shares (each, a "Certificate") shall
thereafter represent the right to receive, upon the surrender of such
Certificate in accordance with the provisions of Section 2.2, but subject to the
indemnification provisions of Article 8 hereof, the Stock Merger Consideration
and Cash Merger Consideration attributable to the number and class of Shares
represented by such Certificate, and a holder of more than one Certificate shall
have the right to receive the Stock Merger Consideration and Cash Merger
Consideration attributable to the number and class of Shares represented by all
such Certificates (the "Exchange Merger Consideration"). The holders of such
Certificates previously evidencing such Shares outstanding immediately prior to
the Effective Time shall cease to have any rights with respect to such Shares
except as otherwise provided herein or by Applicable Law. Notwithstanding
anything to the contrary herein, the Stock Merger Consideration to be received
by any Stockholder prior to the termination of the Escrow Indemnity Period shall
be adjusted to give full effect to the indemnification provisions in Article 8
hereof.
(b) Each Share held in the treasury of the Company and each Share owned by
Acquiror or any direct or indirect Subsidiary of Acquiror immediately prior to
the Effective Time shall automatically be cancelled and extinguished without any
conversion thereof and no payment shall be made with respect thereto.
(c) Each share of common stock of Acquiror Merger Subsidiary outstanding
immediately prior to the Effective Time shall continue to be outstanding and
shall constitute the only outstanding shares of capital stock of the Surviving
Corporation.
(d) In lieu of issuing fractional shares, Acquiror shall convert a holder=s
right to receive shares of Acquiror Stock pursuant to Section 2.1(a) into a
right to receive the highest whole number of shares of Acquiror Stock
constituting the non-cash portion of the Exchange Merger Consideration (after
taking into account the shares of Acquiror Stock to be held in escrow pursuant
to Article 8 hereof) plus cash equal to the fraction of a share of Acquiror
Stock to which the holder would otherwise be entitled multiplied by the
Determination Price,
4
<PAGE>
and the Exchange Merger Consideration to which a holder is entitled shall be
deemed to be such number of shares of Acquiror Stock plus such cash in lieu of
fractional shares plus the cash portion of the Exchange Merger Consideration. In
addition, upon distribution to Stockholders of any portion of the Escrow
Indemnity Funds, Acquiror shall deliver to each such Stockholder the highest
whole number of shares of Acquiror Stock to which such Stockholder is entitled
plus cash equal to the fraction of a share of Acquiror Stock to which the holder
would otherwise be entitled multiplied by the Market Price. For purposes of
carrying out the intent of this Section 2.1(d), Acquiror may aggregate
Certificates so that fractional shares of Acquiror Stock due in exchange for
multiple Certificates may be combined to yield a number of whole shares thereof
plus a single fraction.
Section 2.2. Exchange of Certificates; Exchange Agent and Exchange
Procedures.
(a) As soon as reasonably practicable after the Effective Time (it being
understood that Acquiror shall use reasonable best efforts to deposit the Cash
Merger Consideration with the Exchange Agent on the Closing Date), Acquiror
shall deposit or cause to be deposited with a bank or trust company designated
by Acquiror (the "Exchange Agent"), for the benefit of the holders of Shares
(other than Dissenting Shares), for exchange in accordance with this Article,
through the Exchange Agent, (i) cash (by wire transfer of federal funds pursuant
to instructions reasonably satisfactory to the Exchange Agent) in an amount
equal to the sum of (a) the Class A Cash Merger Consideration multiplied by the
number of all Shares of Class A Company Stock issued and outstanding immediately
prior to the Effective Time (other than Shares of Class A Company Stock to be
cancelled pursuant to Section 2.1(b) and any Dissenting Shares of Class A
Company Stock) (said number of Shares less said Shares to be cancelled and less
said Dissenting Shares hereafter to be referred to as the "Net Class A Shares"),
and (b) the Class B Cash Merger Consideration multiplied by the number of all
Shares of Class B Company Stock issued and outstanding immediately prior to the
Effective Time (other than Shares of Class B Company Stock to be cancelled
pursuant to Section 2.1(b) and any Dissenting Shares of Class B Company Stock)
(said number of Shares less said Shares to be cancelled and less said Dissenting
Shares hereafter to be referred to as the "Net Class B Shares"), and (ii) the
sum of (a) the Class A Stock Merger Consideration multiplied by the Net Class A
Shares, and (b) the Class B Stock Merger Consideration multiplied by the Net
Class B Shares, (x) less the number of shares of Acquiror Stock constituting the
Escrow Indemnity Funds and (y) plus cash in an amount sufficient to make payment
for fractional shares, in exchange for all of the outstanding Shares
(collectively, the "Exchange Fund"). Subject to Article 8 hereof, the Exchange
Agent shall, pursuant to irrevocable instructions from Acquiror, deliver the
Exchange Merger Consideration to be issued pursuant to Section 2.1(a) out of the
Exchange Fund to holders of Shares upon transmittal of Certificates for exchange
as provided therein and in Section 2.2(b). The Exchange Fund shall not be used
for any other purpose. Any interest, dividends or other income earned by the
Exchange Fund shall be for the account of Acquiror.
(b) As soon as reasonably practicable after the Effective Time, Acquiror
will
5
<PAGE>
instruct the Exchange Agent to issue (pursuant to instructions from each holder
of record reasonably satisfactory to Acquiror and the Exchange Agent, and
otherwise by mail to the most recent address of such holder as shown on the
Company's books and records) to such holder of a Certificate or Certificates
which immediately prior to the Effective Time evidenced outstanding Shares
(other than Shares to be cancelled pursuant to Section 2.1(b) and any Dissenting
Shares), a letter of transmittal (which shall specify that delivery shall be
effected, and risk of loss and title to the Certificates shall pass, only upon
proper delivery of the Certificates to the Exchange Agent and shall be in such
form and have such other provisions as Acquiror and the Company may reasonably
specify) and instructions to effect the surrender of the Certificates in
exchange for the Exchange Merger Consideration. Upon surrender of a Certificate
for cancellation to the Exchange Agent or to such other agent or agents as may
be appointed by Acquiror together with such letter of transmittal, duly
executed, and such other customary documents as may be reasonably required
pursuant to such instructions (collectively, the "Transmittal Documents"), the
holder of such Certificate shall be entitled to receive in exchange therefor the
Exchange Merger Consideration which such holder has the right to receive,
subject to Article 8 hereof, pursuant to Sections 2.1(a) and 2.1(d) hereof, and
the Certificate so surrendered shall forthwith be cancelled. In the event of a
transfer of ownership of Shares which is not registered in the transfer records
of the Company, the Exchange Merger Consideration may be issued and paid in
accordance with this Article to a transferee if the Certificate evidencing such
Shares is presented to the Exchange Agent, accompanied by all documents
reasonably required to evidence and effect such transfer and by evidence that
any applicable stock transfer taxes have been paid. The Exchange Merger
Consideration will be delivered by the Exchange Agent promptly following
surrender of a Certificate and the related Transmittal Documents, and cash
payments for fractional shares and the cash portion of the Exchange Merger
Consideration may be made by check (or, pursuant to instructions reasonably
satisfactory to the Exchange Agent, by wire transfer). No interest will be
payable on the Exchange Merger Consideration regardless of any delay in making
payments. Until surrendered as contemplated by this Section, each Certificate
shall be deemed at any time after the Effective Time to evidence only the right
to receive, upon such surrender, the Exchange Merger Consideration, without
interest. Notwithstanding the foregoing, any Stockholder may, prior to the
Effective Time, request a letter of transmittal from Acquiror, and, if proper
delivery of all applicable Transmittal Documents is made to the Exchange Agent
prior to the Effective Time, the Exchange Agent shall deliver to the holder
thereof by wire transfer of immediately available funds in accordance with
instructions contained in such Stockholder's Transmittal Documents as promptly
as is practicable after the Exchange Agent's receipt from Acquiror of the Cash
Merger Consideration the full amount of Cash Merger Consideration to which such
Stockholder is entitled.
(c) In the event any Certificate shall have been lost, stolen or destroyed,
upon the making of an affidavit of that fact by the Person claiming such
Certificate to be lost, stolen or destroyed and subject to such other conditions
as Acquiror reasonably may impose, the Surviving Corporation shall issue in
exchange for such lost, stolen or destroyed Certificate the Exchange Merger
Consideration deliverable in respect thereof as determined in accordance with
Sections 2.1(a) and 2.1(d), subject to Article 8 hereof. Acquiror may, in its
discretion
6
<PAGE>
and as a condition precedent to authorizing the issuance thereof by the
Surviving Corporation, require the owner of such lost, stolen or destroyed
Certificate to provide a bond or other surety to Acquiror and the Surviving
Corporation in such sum as Acquiror may reasonably direct as indemnity against
any claim that may be made against Acquiror or the Surviving Corporation (and
their Affiliates) with respect to the Certificate alleged to have been lost,
stolen or destroyed.
(d) Any portion of the Exchange Fund which remains undistributed to the
holders of the Company Stock for ninety (90) days after the Effective Time shall
be delivered to Acquiror upon demand by Acquiror, and any holders of
Certificates who have not theretofore complied with this Article shall
thereafter look only to Acquiror for the Exchange Merger Consideration to which
they are entitled pursuant to this Article.
(e) None of Acquiror, Acquiror Merger Subsidiary, the Company or the
Surviving Corporation shall be liable to any holder of Shares for any shares of
Acquiror Stock or cash from the Exchange Fund delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
(f) Each of Acquiror, the Surviving Corporation and the Exchange Agent
shall be entitled to deduct and withhold from the consideration otherwise
payable pursuant to this Agreement to any holder of Shares such amounts as
Acquiror, the Surviving Corporation or the Exchange Agent is required to deduct
and withhold with respect to the making of such payment under the Code, or any
provision of federal, state, local or foreign tax law. To the extent that
amounts are so withheld by Acquiror, the Surviving Corporation or the Exchange
Agent, such withheld amounts shall be treated for all purposes of this Agreement
as having been paid to the holder of the Shares in respect of which such
deduction and withholding was made by Acquiror, the Surviving Corporation or
the Exchange Agent.
Section 2.3. Stock Transfer Books. At the Effective Time, the stock
transfer books of the Company shall be closed, and there shall be no further
registration of transfers of Shares thereafter on the records of the Company
other than to Acquiror. On or after the Effective Time, any Certificate
presented to the Exchange Agent or the Surviving Corporation shall be converted
into the Exchange Merger Consideration.
Section 2.4. Dissenting Shares.
(a) Notwithstanding any other provision of this Agreement to the contrary,
Shares that are outstanding immediately prior to the Effective Time and which
are held by Stockholders who shall have not voted in favor of the Merger or
consented thereto in writing and who shall be entitled to and shall have
demanded properly in writing appraisal for such Shares in accordance with the
DGCL, and who shall not have withdrawn such demand or otherwise have forfeited
appraisal rights (collectively, the "Dissenting Shares") shall not be converted
into or represent the right to receive the Merger Consideration. Such
Stockholders shall be entitled to receive payment of the appraised value of such
Shares held by them in
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<PAGE>
accordance with the provisions of the DGCL, except that all Dissenting Shares
held by Stockholders who shall have failed to perfect or who effectively shall
have withdrawn, forfeited or lost their rights to appraisal of such Shares under
the DGCL shall thereupon be deemed to have been converted into and to have
become exchangeable for, as of the Effective Time, the right to receive, without
any interest thereon, the Exchange Merger Consideration attributable to such
Shares, upon surrender, in the manner provided in Section 2.2, of the
Certificate or Certificates that formerly evidenced such Shares.
(b) The Company shall give Acquiror prompt notice of any demands for
appraisal received by it, withdrawals of such demands, and any other instruments
served pursuant to the DGCL and received by the Company and relating thereto.
The Company and Acquiror shall jointly direct all negotiations and proceedings
with respect to demands for appraisal under Applicable Law. The Company shall
not, except with the prior written consent of Acquiror, make any payment with
respect to any demands for appraisal, or offer to settle, or settle, any such
demands.
Section 2.5. Payment of Indebtedness. Contemporaneously with the Effective
Time, Acquiror shall, or shall cause the Surviving Corporation to, pay and
satisfy in full by wire transfer of immediately available funds, the unpaid
balance (principal and interest) of the Company's and its Subsidiaries'
Indebtedness described in the Indebtedness Schedule attached hereto; provided,
however, that neither Acquiror nor the Surviving Corporation shall be required
to pay in full at the Effective Time (i) the Indebtedness under the subordinated
promissory notes due January 2, 2002 issued to former stockholders of JAD
Interests, Inc. in connection with its merger into HIMSCORP of San Diego, Inc.,
(ii) any Indebtedness listed on the Indebtedness Schedule in respect of
capitalized leases or (iii) any other Indebtedness which the Indebtedness
Schedule indicates is not to be so paid in full.
ARTICLE 3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to Acquiror and Acquiror Merger
Subsidiary as follows:
Section 3.1. Organization and Business; Power and Authority; Effect of
Transaction.
(a) The Company:
(i) is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware,
(ii) has all requisite power and corporate authority to own or hold
under
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<PAGE>
lease its properties and to conduct its business, and, to the Company's
knowledge, except as set forth in Section 3.1(a)(ii) to the Disclosure
Schedule, has in full force and effect all Governmental Authorizations and
Private Authorizations and has made all Governmental Filings, to the extent
required for such ownership and lease of its property and conduct of its
business, and
(iii) is, to the Company's knowledge, duly qualified and authorized
to do business and is in good standing as a foreign corporation in each
jurisdiction (a true and correct list of which is set forth in Section
3.1(a) of the Disclosure Schedule) in which the character of its property
or the nature of its business or operations requires such qualification or
authorization, except to the extent the failure to so qualify or to
maintain such authorizations would not have an Adverse Effect.
(b) The Company has all requisite power and corporate authority and has in
full force and effect all Governmental Authorizations and Private Authorizations
in order to enable it to execute and deliver, and to perform its obligations
under, this Agreement and each Collateral Document executed or required to be
executed by it pursuant hereto or thereto and to consummate the Merger and the
Transactions, and the execution, delivery and performance of this Agreement and
each Collateral Document executed or required to be executed pursuant hereto or
thereto have been duly authorized by all requisite corporate or other action
(other than that of the Stockholders). This Agreement has been duly executed and
delivered by the Company and constitutes, and each Collateral Document executed
or required to be executed pursuant hereto or thereto or to consummate the
Merger and the Transactions, when executed and delivered by the Company or an
Affiliate of the Company will constitute, legal, valid and binding obligations
of the Company or such Affiliate, enforceable in accordance with their
respective terms, except as such enforceability may be subject to bankruptcy,
moratorium, insolvency, reorganization, arrangement, voidable preference,
fraudulent conveyance and other similar laws relating to or affecting the rights
of creditors and except as the same may be subject to the effect of general
principles of equity (the "Enforceability Exceptions"). The affirmative vote or
action by written consent of the holders of a majority of the outstanding Shares
(which requisite vote has been obtained by the Principal Stockholder's execution
and delivery of a written consent on the date hereof) is the only vote of the
holders of any class or series of the capital stock of the Company necessary to
approve this Agreement, the Merger and the Transactions under Applicable Law and
the Company's Organic Documents. The provisions of Section 203 of the DGCL will
not apply to this Agreement, the Merger or the Transactions.
(c) Except as set forth in Section 3.1(c) of the Disclosure Schedule,
neither the execution and delivery of this Agreement or any Collateral Document
executed or required to be executed pursuant hereto or thereto, nor the
consummation of the Transactions, nor compliance with the terms, conditions and
provisions hereof or thereof by the Company, any Company Subsidiary or the
Principal Stockholder:
(i) will conflict with, or result in a breach or violation of, or
constitute a
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default under, any Applicable Law on the part of the Company or any Company
Subsidiary or will conflict with, or result in a breach or violation of, or
constitute a default under, or permit the acceleration of any obligation or
liability in, or but for any requirement of giving of notice or passage of
time or both would constitute such a conflict with, breach or violation of,
or default under, or permit any such acceleration in, any Contractual
Obligation of the Company or any Company Subsidiary,
(ii) will result in or permit the creation or imposition of any Lien
upon any property now owned or leased by the Company, any Company
Subsidiary or any such other party, or
(iii) will require any Governmental Authorization or Governmental
Filing or Private Authorization, except for the certificate of merger and
related filings under the DGCL in connection with the Merger and the
Transactions and except pursuant to the HSR Act.
(d) The Company does not have any Subsidiaries other than those set forth
on Section 3.1(d) of the Disclosure Schedule, each of which is directly or
indirectly wholly owned, is a corporation which is duly organized, validly
existing and in good standing under the laws of the respective state of
incorporation set forth opposite its name on Section 3.1(d) of the Disclosure
Schedule, and is duly qualified and in good standing as a foreign corporation in
each other jurisdiction (as shown in Section 3.1(d) of the Disclosure Schedule)
in which the character of its property or the nature of its business or
operations requires such qualification or authorization (except to the extent
the failure to so qualify would not, individually or in the aggregate, have an
Adverse Effect on the Company), with full power and corporate authority to carry
on the business in which it is engaged. To the Company's knowledge, except as
set forth in Section 3.1(d) to the Disclosure Schedule, each Company Subsidiary
has in full force and effect all Governmental Authorizations and Private
Authorizations and has made all Governmental Filings, to the extent required for
such ownership and lease of its property and conduct of its business. The
Company owns, directly or indirectly through other Company Subsidiaries, all of
the outstanding capital stock (as shown on Section 3.1(d) of the Disclosure
Schedule) of each Company Subsidiary, free and clear of all Liens (except to the
extent set forth in Section 3.1(d) of the Disclosure Schedule), and all such
stock has been duly authorized and validly issued and is fully paid and
nonassessable and was issued and sold in compliance with the Securities Act, the
Exchange Act and applicable state securities laws. Except as set forth in
Section 3.1(d) of the Disclosure Schedule, (i) there is neither outstanding nor
has any Company Subsidiary agreed to grant or issue any shares of its capital
stock or any Option Security or Convertible Security, and (ii) no Company
Subsidiary is a party to and is not bound by any agreement, put or commitment
pursuant to which it is obligated to purchase, redeem or otherwise acquire any
shares of capital stock or any Option Security or Convertible Security.
Section 3.2. Financial and Other Information.
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(a) The Company has heretofore furnished to Acquiror copies of the
Company's audited consolidated balance sheets as of December 31, 1996 and
December 31, 1995, and the related statements of income and cash flows for the
fiscal years then ended, and the Company's unaudited consolidated balance sheet
as of June 30, 1997, and the related statements of income and cash flows for the
six-month period then ended, which copies are attached to the Disclosure
Schedule (the "Financial Statements"). The Financial Statements, including in
each case the notes thereto, have been prepared in accordance with GAAP applied
on a consistent basis throughout the periods covered thereby, except as
otherwise noted therein or in Section 3.2(a) of the Disclosure Schedule, and
fairly present the financial condition and results of operations of the Company
and its Subsidiaries, on the bases therein stated, as of the respective dates
thereof, and for the respective periods covered thereby subject, in the case of
unaudited financial statements to the absences of footnotes and other
presentation items and to normal nonmaterial year-end audit adjustments and
accruals.
(b) To the Company's knowledge, neither the Disclosure Schedule, the
Financial Statements, this Agreement nor any Collateral Document furnished or to
be furnished by or on behalf of the Company or any of the Stockholders pursuant
to this Agreement or any Collateral Document executed or required to be executed
by or on behalf of the Company or the Stockholders pursuant hereto or thereto or
to consummate the Merger and the Transactions, contains any untrue statement of
a material fact or omits or will omit to state a material fact required to be
stated in such document by its terms or necessary in order to make the
statements contained herein or therein not misleading and, to the Company's
knowledge, all such Collateral Documents are true, correct and complete in all
material respects.
(c) The Company does not own any capital stock or equity or other interest
in any other Entity or enterprise, however organized and however such interest
may be denominated or evidenced, except as set forth in Section 3.1(d) or 3.2(c)
of the Disclosure Schedule.
Section 3.3. Changes in Condition. Since the date of the most recent
financial statements forming part of the Financial Statements, except to the
extent specifically described in Section 3.3 of the Disclosure Schedule, there
has been no Adverse Change in the Company. To the Company's knowledge, there is
no Event known to the Company which Adversely Affects, or could reasonably be
expected to Adversely Affect, the Company and its Subsidiaries, taken as a
whole, or the ability of the Company to perform any of the obligations set forth
in this Agreement or any Collateral Document executed or required to be executed
pursuant hereto or thereto except for changes in general economic conditions or
the industry in general and to the extent set forth in Section 3.3 of the
Disclosure Schedule.
Section 3.4. Liabilities. At the date of the most recent balance sheet
forming part of the Financial Statements, neither the Company nor any Company
Subsidiary had any obligations or liabilities, past, present or deferred,
accrued or unaccrued, fixed, absolute, contingent or other (including, without
limitation, any contingent payments or "earnouts" owing under any Acquisition
Agreement), except as disclosed in such balance sheet, or the notes thereto, and
since such date neither the Company nor any Company Subsidiary has
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incurred any such obligations or liabilities, other than obligations and
liabilities incurred in the ordinary course of business consistent with past
practice of the Company and the Company Subsidiaries, which do not and, to the
Company's knowledge, will not, in the aggregate Adversely Affect the Company,
except to the extent set forth in Section 3.4 of the Disclosure Schedule.
Neither the Company nor any Company Subsidiary has Guaranteed or is otherwise
primarily or secondarily liable in respect of any obligation or liability of any
other Person (other than the Company or a Company Subsidiary), except for
endorsements of negotiable instruments for deposit in the ordinary course of
business, consistent with prior practice, or as disclosed in the most recent
balance sheet, or the notes thereto, forming part of the Financial Statements or
in Section 3.4 of the Disclosure Schedule.
Section 3.5. Title to Properties; Leases.
(a) The Company and its Subsidiaries do not own any real property. To the
Company's knowledge, each of the Company and its Subsidiaries has good leasehold
title with respect to all real property it leases. Each of the Company and its
Subsidiaries has good indefeasible and merchantable title to all other assets,
tangible and intangible, reflected on the most recent balance sheet forming part
of the Financial Statements, or (excluding leased real estate) held by the
Company or any Company Subsidiary for use in its business if not so reflected,
or purported to have been acquired by the Company or any Company Subsidiary
since such date, except inventory sold or depleted, or property, plant and other
equipment used up or retired, since such date, in each case in the ordinary
course of business consistent with past practice of the Company and its
Subsidiaries, free and clear of all Liens, except (i) Liens reflected in the
Financial Statements, (ii) Liens for current taxes not yet due and payable,
(iii) Liens set forth on Section 3.5(a) of the Disclosure Schedule, (iv) Liens
that will be released prior to the Closing Date (and which are listed on Section
3.5(a) of the Disclosure Schedule), (v) Permitted Liens, and (vi) such
imperfections of title, easements, encumbrances and mortgages or other Liens, if
any, as are not, individually or in the aggregate, substantial in character,
amount or extent and do not materially detract from the value, or materially
interfere with the present use, of the property subject thereto or affected
thereby, or otherwise materially impair business operations. Each Lease or other
occupancy or other agreement under which the Company or any Company Subsidiary
holds real or personal property has been duly authorized, executed and delivered
by the Company or a Company Subsidiary, and, to the Company's knowledge, by each
of the other parties thereto; each such Lease is a legal, valid and binding
obligation of the Company or a Company Subsidiary, and, to the Company's
knowledge, of each other party thereto, enforceable in accordance with its terms
(subject to the Enforceability Exceptions). To the Company's knowledge, each of
the Company and its Subsidiaries has a valid leasehold interest in and enjoys
peaceful and undisturbed possession under all Leases pursuant to which it holds
any real property or tangible personal property, none of which, to the Company's
knowledge, contains any provision which would impair the Company's or a Company
Subsidiary's ability to use such property as it is currently used by the Company
or a Company Subsidiary, except as described in Section 3.5(a) of the Disclosure
Schedule. To the Company's knowledge, (i) all of such Leases are valid and
subsisting and in full force and effect and (ii) except as set forth in Section
3.5(a) of the Disclosure Schedule,
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none of the Company, its Subsidiaries or any other party thereto is in default
in the performance, observance or fulfillment of any obligation, covenant or
condition contained in any such Lease.
(b) Section 3.5(b) of the Disclosure Schedule contains a true, correct and
complete address and general description of all real estate leased by the
Company or any Company Subsidiary.
(c) To the Company's knowledge, except as set forth in Section 3.5(c) of
the Disclosure Schedule, all real property leased by the Company or any Company
Subsidiary conforms to and complies with, except as in the aggregate would not
result in an Adverse Effect on the Company, all applicable title covenants,
conditions, restrictions and reservations and all Environmental Laws and all
applicable zoning, wetlands, land use and other Applicable Laws.
Section 3.6. Compliance with Private Authorizations. Section 3.6 of the
Disclosure Schedule sets forth, to the Company's knowledge, a true, correct and
complete list and description of each Private Authorization which individually
is material to the Company and its Subsidiaries, all of which are in full force
and effect, except as set forth in Section 3.6 of the Disclosure Schedule. To
the Company's knowledge, each of the Company and its Subsidiaries has obtained
all Private Authorizations which are necessary for the ownership by the Company
or such Company Subsidiary of its properties and the conduct of its business as
now conducted or which, if not obtained and maintained, could reasonably be
expected to, singly or in the aggregate, Adversely Affect the Company. To the
Company's knowledge, except as set forth in Section 3.6 of the Disclosure
Schedule, (i) neither the Company nor any Company Subsidiary is in breach or
violation of, or is in default in the performance, observance or fulfillment of,
any Private Authorization, and (ii) no Event exists or has occurred, which
constitutes, or but for any requirement of giving of notice or passage of time
or both would constitute, such a breach, violation or default, under any
Contractual or Private Authorization, except for such defaults, breaches or
violations as do not and, to the Company's knowledge, will not in the aggregate
have any Adverse Effect on the Company or the ability of the Company to perform
any of the obligations set forth in this Agreement or any Collateral Document
executed or required to be executed pursuant hereto or thereto or to consummate
the Merger and the Transactions. No material Private Authorization is the
subject of any pending or, to the Company's knowledge, threatened attack,
revocation or termination.
Section 3.7. Compliance with Governmental Authorizations and Applicable
Law.
(a) Section 3.7(a) of the Disclosure Schedule contains a description of:
(i) all Legal Actions which are pending in which the Company or any
Company Subsidiary is a party, or to which the business, operations or
properties of the Company or any Company Subsidiary are subject or, to the
Company's knowledge,
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which are threatened or contemplated against, the Company or any Company
Subsidiary or any of their respective business, operations or properties,
which in the case of such threatened or contemplated Legal Actions,
individually or in the aggregate, if determined against the Company or any
Company Subsidiary would reasonably be expected to have an Adverse Effect
on the Company; and
(ii) to the Company's knowledge, each material Governmental
Authorization to which the Company or any Company Subsidiary is subject and
which relates to the business, operations, properties, prospects, condition
(financial or other), or results of operations of the Company and its
Subsidiaries, and, except as set forth in Section 3.7(a)(ii) of the
Disclosure Schedule, each Governmental Authorization known to the Company
to which the Company or any Company Subsidiary is subject and which relates
to the business, operations, properties, prospects, condition (financial or
other), or results of operations of the Company and its Subsidiaries is in
full force and effect.
(b) To the Company's knowledge, the Company and its Subsidiaries have
obtained all Governmental Authorizations which are necessary for the ownership
or use of their respective properties and the conduct of their respective
business as now conducted by the Company or any Company Subsidiary or which, if
not obtained and maintained, could singly or in the aggregate, have any Adverse
Effect on the Company. No material Governmental Authorization is the subject of
any pending or, to the Company's knowledge, threatened attack, revocation or
termination. To the Company's knowledge, (i) neither the Company nor any
Company Subsidiary is in material breach or violation of, or in default in the
performance, observance or fulfillment of, any Governmental Authorization or any
Applicable Law, and (ii) no Event exists or has occurred, which constitutes, or
but for any requirement of giving of notice or passage of time or both would
constitute, such a breach, violation or default, under any Governmental
Authorization or any Applicable Law, except for such breaches, violations or
defaults as do not and, to the Company's knowledge, will not have in the
aggregate any Adverse Effect on the Company.
(c) The matters, if any, referred to in Section 3.7(a) of the Disclosure
Schedule, if adversely determined against the Company or any Company Subsidiary,
will not Adversely Affect the Company, except to the extent set forth in the
Disclosure Schedule, or the ability of the Company to perform its obligations
under this Agreement or any Collateral Documents executed or required to be
executed pursuant hereto or thereto or to consummate the Merger and the
Transactions.
Section 3.8. Intangible Assets. Section 3.8 of the Disclosure Schedule
sets forth a true and accurate description of all Intangible Assets held or used
by the Company and its Subsidiaries, including without limitation the nature of
the Company's and its Subsidiaries' interest in each and the extent to which the
same have been duly registered in the offices as indicated therein. To the
Company's knowledge, each of the Company and its Subsidiaries owns or possesses
or otherwise has the right to use all Intangible Assets necessary for the
conduct of its business, except where the failure to so own, possess or have the
right to use
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would not, insofar as can reasonably be foreseen, individually or in the
aggregate, have an Adverse Effect on the Company. To the Company's knowledge,
except as set forth in Section 3.8 of the Disclosure Schedule, no authorizations
or intangible assets (except the Intangible Assets so set forth) are required
for each of the Company and its Subsidiaries to conduct its business. Except as
set forth in Section 3.8 of the Disclosure Schedule, the Company possesses all
proprietary rights in and to the principal software used in operating and
conducting its business and no other Person has any rights therein or with
respect thereto.
Section 3.9. Related Transactions. Section 3.9 of the Disclosure Schedule
sets forth a true, correct and complete (in all material respects) description
of any Contractual Obligation or transaction, whether now existing or existing
during the period covered by the most recent audited Financial Statements,
between the Company or any Company Subsidiary and any Affiliate thereof (other
than (a) any transaction between the Company and any Company Subsidiary or
between Company Subsidiaries and (b) reasonable compensation for services as
officers, directors and employees and reimbursement for out-of-pocket expenses
reasonably incurred in support of the Company's and its Subsidiaries' business),
including without limitation any providing for the furnishing of services to or
by, providing for rental of property, real, personal or mixed, to or from, or
providing for the lending or borrowing of money to or from or otherwise
requiring payments to or from, any such Affiliate.
Section 3.10. Insurance.
(a) Section 3.10(a) of the Disclosure Schedule lists all insurance policies
maintained by the Company or any Company Subsidiary and includes the insurers'
names, policy numbers, expiration dates, risks insured against, amounts of
coverage, the annual premiums, exclusions, deductibles and self-insured
retention and describes in reasonable detail any retrospective rating plan,
fronting arrangement or any other self-insurance or risk assumption agreed to by
the Company or any Company Subsidiary or imposed upon the Company or any Company
Subsidiary by any such insurers, as well as any self-insurance program that is
in effect.
(b) To the Company's knowledge, except as set forth in Section 3.10(b) of
the Disclosure Schedule, neither the Company nor any Company Subsidiary is in
breach or violation of or in default under any such policy, and all premiums due
thereon have been paid, and each such policy or a comparable replacement policy
will continue to be in force and effect up to and including the Closing Date.
Section 3.11. Tax Matters.
(a) Each of the Company and each Company Subsidiary has in accordance with
all Applicable Laws filed all Tax Returns which are required to be filed, and
has paid, or made adequate provision for the payment of, all Taxes which have or
may become due and payable pursuant to said Returns and all other governmental
charges and assessments received to date. The Tax Returns of the Company and
each Company Subsidiary have been prepared in
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accordance with all Applicable Laws and generally accepted principles applicable
to taxation consistently applied. All Taxes which the Company and each Company
Subsidiary are required by law to withhold and collect have been duly withheld
and collected, and have been paid over, in a timely manner, to the proper
Authorities to the extent due and payable. Neither the Company nor any Company
Subsidiary has executed any waiver to extend, or otherwise taken or failed to
take any action that would have the effect of extending, the applicable statute
of limitations in respect of any Tax liabilities of the Company or any Company
Subsidiary for the fiscal years prior to and including the most recent fiscal
year. Adequate provision has been made on the most recent balance sheet forming
part of the Financial Statements for all Taxes of any kind, whether disputed or
not, and whether past or current, fixed, contingent or absolute, and to the
knowledge of the Company there are no transactions or matters or any basis which
might or could result in additional Taxes of any nature to the Company or any
Company Subsidiary for which an adequate reserve has not been provided on such
balance sheet. Neither the Company nor any Company Subsidiary is a "consenting
corporation" within the meaning of Section 341(f) of the Code. Each of the
Company and each Company Subsidiary has at all times been taxable as a
Subchapter C corporation under the Code, except as otherwise set forth in
Section 3.11(a) of the Disclosure Schedule. Neither the Company nor any Company
Subsidiary has ever been a member of any consolidated group (other than
exclusively with the Company and its Subsidiaries) for Tax purposes, except as
set forth in Section 3.11(a) of the Disclosure Schedule.
(b) Each of the Company and each Company Subsidiary has paid all Taxes
which have become due pursuant to its Returns and has paid all installments (to
the extent required to avoid material underpayment penalties) of estimated Taxes
due and payable.
(c) From the end of its most recent fiscal year to the date hereof, neither
the Company nor any Company Subsidiary has made any payment on account of any
Taxes except regular payments required in the ordinary course of business,
consistent with prior practice, with respect to current operations or property
presently owned.
(d) The information shown on the Federal income Tax Returns of the Company
and its Subsidiaries (true, correct and complete copies of which have been
furnished by the Company to Acquiror) is true, correct and complete in all
material respects and fairly and accurately reflects the information purported
to be shown. Federal and state income Tax Returns of the Company and its
Subsidiaries have been examined by the IRS or applicable state Authority through
the taxable periods set forth in Section 3.11(d) of the Disclosure Schedule, and
neither the Company nor any Company Subsidiary has been notified in writing
regarding any pending examination, except as shown in Section 3.11(d) of the
Disclosure Schedule.
(e) Neither the Company nor any Company Subsidiary is a party to any tax
sharing agreement or arrangement.
(f) Neither the Company nor any Company Subsidiary is, and since the date
of its
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incorporation has not been, a "United States real property holding corporation"
as defined in Section 897 of the Code.
Section 3.12. ERISA.
(a) Neither the Company nor any Company Subsidiary (which for purposes of
this Section 3.12 shall include any ERISA Affiliate with respect to any Plan
subject to Title IV of ERISA) contributes to any Plan or sponsor any Plan or
Benefit Arrangement or has contributed to or sponsored any Plan or Benefit
Arrangement, except as set forth in Section 3.12(a) of the Disclosure Schedule.
As to all Plans and Benefit Arrangements listed in Section 3.12(a) of the
Disclosure Schedule, and except as disclosed in such Section 3.12(a) of the
Disclosure Schedule:
(i) all such Plans and Benefit Arrangements comply and have been
administered in all material respects in form and in operation with all
Applicable Laws, all required returns (including without limitation
information returns) have been prepared in accordance with all Applicable
Laws and have been timely filed with any Authority with respect to any such
Plan or Benefit Arrangement, and neither the Company nor any Company
Subsidiary has received any outstanding written notice from any Authority
questioning or challenging such compliance;
(ii) all such Plans maintained or previously maintained by the
Company or any Company Subsidiary that are or were intended to comply with
Section 401 of the Code comply and complied in form and in operation with
all applicable requirements of such Section, a favorable determination
letter has been received from the Internal Revenue Service with respect to
each such Plan or the sponsor of the Plan is entitled to rely on a
favorable opinion letter issued to the prototype sponsor by the Internal
Revenue Service with respect to each such Plan, and no event has occurred
which will or could reasonably be expected to give rise to disqualification
of any such Plan under such Section or to a tax under Section 511 of the
Code;
(iii) none of the assets of any such Plan are invested in employer
securities or employer real property;
(iv) there are no non-exempt "prohibited transactions" (as described
in Section 406 of ERISA or Section 4975 of the Code) with respect to any
such Plan and neither the Company nor any of its Subsidiaries has otherwise
engaged in any prohibited transaction;
(v) there have been no acts or omissions by the Company or any
Company Subsidiary which have given rise to or could reasonably be expected
to give rise to material fines, penalties, taxes or related charges under
Sections 502(c), 502(i) or 4071 of ERISA or Chapter 43 of the Code for
which the Company or any Company Subsidiary may be liable;
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(vi) there are no Claims (other than routine claims for benefits)
pending or, to the Company's knowledge, threatened involving such Plans or
the assets of such Plans, except as set forth on Section 3.12(a)(vi) of the
Disclosure Schedule;
(vii) no such Plan is subject to Title IV of ERISA, or if subject,
there have been no "reportable events" (as described in Section 4043 of
ERISA) as to which there is any material risk of termination of such Plan,
and no steps have been taken to terminate any such Plan;
(viii) to the extent that the most recent balance sheet forming part
of the Financial Statements does not include a pro rata amount of the
contributions which would otherwise have been made in accordance with past
practices for the plan years which include the Closing Date, such amounts
are set forth in Section 3.12(a)(viii) of the Disclosure Schedule;
(ix) neither the Company nor any Company Subsidiary nor any of
their respective directors, officers, employees or any other fiduciary has
committed any breach of fiduciary responsibility imposed by ERISA that
would subject the Company or any Company Subsidiary or any of their
respective directors, officers or employees to liability under ERISA;
(x) no such Plan which is subject to Part 3 of Subtitle B of Title
I of ERISA or Section 412 of the Code had an accumulated funding deficiency
(as defined in Section 302 of ERISA and Section 412 of the Code), whether
or not waived, as of the last day of the most recently completed fiscal
year of such Plan;
(xi) no material liability to the PBGC has been or is expected by
the Company or any Company Subsidiary to be incurred by the Company or any
Company Subsidiary with respect to any such Plan, and there has been no
event or condition which presents a material risk of termination of any
such Plan by the PBGC;
(xii) except as set forth in Section 3.12(a)(xii) of the Disclosure
Schedule (which entry, if applicable, shall indicate the present value of
accumulated plan liabilities calculated in a manner consistent with FAS 106
and actual annual expense for such benefits for each of the last two (2)
years) and pursuant to the provisions of COBRA, which provisions have been
complied with in all material respects, neither the Company nor any Company
Subsidiary maintains any Plan that provides benefits described in Section
3(1) of ERISA to any former employees or retirees of the Company or any of
its Subsidiaries;
(xiii) the Company has made available to Acquiror a copy of the most
recently filed Federal Form 5500 series and accountant's opinion, if
applicable, for each Plan (and the most recent actuarial valuation reports
for each Plan, if any, that is subject to
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Title IV of ERISA), and all information provided by the Company or any
Company Subsidiary to any actuary in connection with the preparation of any
such actuarial valuation report was true, correct and complete in all
material respects; and
(xiv) the Company has delivered to Acquiror correct and complete
copies of all Plans and Benefit Arrangements and, where applicable, each of
the following documents with respect to such plans: (i) any amendments;
(ii) any related trust documents; (iii) the most recent summary plan
descriptions and summaries of material modifications; and (iv) written
communications to employees to the extent the substance of the Plans and
Benefit Arrangements described therein differ materially from the other
documentation furnished under this clause.
(b) Neither the Company nor any Company Subsidiary is or ever has been a
party to any Multiemployer Plan or made contributions to any such plan.
(c) Each Plan providing medical, dental, and prescription benefits, life
insurance, accidental death and dismemberment, and long term disability coverage
is fully-insured and not self-insured.
Section 3.13. Authorized and Outstanding Capital Stock.
(a) The authorized and outstanding capital stock of the Company is as set
forth in Section 3.13(a) of the Disclosure Schedule. All of such outstanding
capital stock has been duly authorized and validly issued, is fully paid and
nonassessable and is not subject to any preemptive or similar rights. The
Company has no authorized or outstanding, and the Company has not agreed to
grant or issue, Option Securities or Convertible Securities. Except as set
forth in Section 3.13(a) of the Disclosure Schedule, (i) there is neither
outstanding nor has the Company agreed to grant or issue any shares of its
capital stock, and (ii) the Company is not a party to and is not bound by any
agreement, put or commitment pursuant to which it is obligated to purchase,
redeem or otherwise acquire any shares of capital stock. All of the issued and
outstanding Shares were issued and sold in compliance with the Securities Act,
the Exchange Act and applicable state securities laws.
(b) All of the outstanding capital stock of the Company is owned by the
Stockholders as set forth in Section 3.13(b) of the Disclosure Schedule, and are
in each case, to the Company's knowledge, free and clear of all Liens, except as
set forth in Section 3.13(b) of the Disclosure Schedule, and, to the Company's
knowledge, except as set forth in Section 3.13(b) of the Disclosure Schedule,
there are no options, warrants or other rights, agreements, arrangements or
commitments of any character to which any Stockholder is a party relating to the
pledge, disposition or voting of any shares of the Company Stock that are owned
by such Stockholder, and there are no voting trusts or voting agreements with
respect to such shares.
Section 3.14. Employment Arrangements.
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(a) Neither the Company nor any Company Subsidiary has any obligation or
liability, contingent or other, under any Employment Arrangement, other than
those listed or described in Section 3.14(a) of the Disclosure Schedule. Neither
the Company nor any Company Subsidiary is now or during the past four (4) years
has been subject to or involved in or, to the Company's knowledge, threatened
with any union elections, petitions therefor or other organizational or
recruiting activities, except as described in Section 3.14(a) of the Disclosure
Schedule. None of the employees of the Company and its Subsidiaries are now, or
during the past four (4) years have been, represented by any labor union or
other employee collective bargaining organization or are parties to any labor or
other collective bargaining agreement, and there are no pending grievances,
disputes or controversies with any union or any other employee collective
bargaining organization of such employees, or, to the Company's knowledge,
threats of strikes, work stoppages or slowdowns or any pending demands for
collective bargaining by any union or other such organization. The Company and
its Subsidiaries have performed all obligations required to be performed under
all Employment Arrangements and are not in material breach or violation of or in
default or arrears under any of the terms, provisions or conditions thereof,
except as set forth in Section 3.14(a) of the Disclosure Schedule.
(b) Except as set forth in Section 3.14(b) of the Disclosure Schedule, no
employee of the Company or any Company Subsidiary will accrue or receive or is
entitled to accrue or receive additional benefits, service or accelerated rights
to payments of benefits, whether under any Employment Arrangement or otherwise,
including the right to receive any parachute payment, as defined in Section 280G
of the Code, or become entitled to severance, termination allowance or similar
payments as a result of this Agreement, the Merger or the Transactions.
Section 3.15. Material Agreements. To the Company's knowledge, listed on
Section 3.15 of the Disclosure Schedule are all Material Agreements relating to
the ownership or operation of the business and property of the Company and its
Subsidiaries presently held or used by the Company or any Company Subsidiary or
to which the Company or any Company Subsidiary is a party or to which it or any
of its property is subject or bound. True, complete and correct copies of each
of the Material Agreements have been made available to or furnished by the
Company to Acquiror (or materially true, complete and correct descriptions
thereof have been set forth in Section 3.15 of the Disclosure Schedule, if any
such Material Agreements are oral). To the Company's knowledge, (i) all of the
Material Agreements are valid, binding and legally enforceable obligations of
the parties thereto (subject to the Enforceability Exceptions), and (ii) the
Company or one of its Subsidiaries is validly and lawfully operating its
business and owning its property under each of the Material Agreements. To the
Company's knowledge, the Company and each Company Subsidiary have duly complied
in all material respects with all of the terms and conditions of each Material
Agreement and have not done or performed, or failed to do or perform (and there
is no pending or, to the knowledge of the Company, threatened Claim that the
Company or any Company Subsidiary has not so complied, done and performed or
fail to do and perform) any act the effect of which would be to invalidate or
provide grounds for the other party thereto to terminate (with or without
notice, passage of time or both) such Material Agreement or impair
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the rights or benefits, or increase the costs, of the Company or any Company
Subsidiary, under any of the Material Agreements.
Section 3.16. Ordinary Course of Business.
(a) The Company and each Company Subsidiary, from the date of the most
recent balance sheet forming part of the Financial Statements to the date
hereof, except (i) as may be described on Section 3.16(a) of the Disclosure
Schedule, or (ii) as may be reflected in the Financial Statements:
(i) has operated its business in the normal, usual and customary
manner in the ordinary course of business, consistent with prior practice;
(ii) has not sold or otherwise disposed of, or contracted to sell or
otherwise dispose of, any of its properties or assets, other than in the
ordinary course of business;
(iii) except in each case in the ordinary course of business,
consistent with prior practice:
(A) has not incurred any obligations or liabilities (fixed,
contingent or other);
(B) has not entered into any commitments in excess of $35,000
in the aggregate; and
(C) has not cancelled any debts or claims in excess of $35,000
in the aggregate;
(iv) has not made or committed to make any additions to its property
or any purchases of machinery or equipment in excess of $35,000 in the
aggregate, except in the ordinary course of business, consistent with past
practice;
(v) has not discharged or satisfied any Lien and has not paid any
obligation or liability (absolute or contingent) other than current
liabilities or obligations under contracts then existing or thereafter
entered into in the ordinary course of business, consistent with prior
practice, and commitments under Leases existing on that date or incurred
since that date in the ordinary course of business or repaying or prepaying
long-term indebtedness or the current portion thereof;
(vi) has not created or permitted to be created any Lien on any of
its tangible property;
(vii) except in the ordinary course of business, has not transferred
or created, or permitted to be created, any Lien on any Intangible Assets;
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(viii) except in the ordinary course of business, consistent with
prior practice, has not increased the compensation payable or to become
payable to any of its directors, officers, employees, advisers,
consultants, salesmen or agents or otherwise altered, modified or changed
the terms of their employment or engagement;
(ix) has not suffered any material damage, destruction or loss
(whether or not covered by insurance) or any acquisition or taking of
material property by any Authority;
(x) has not waived any rights of material value without fair and
adequate consideration;
(xi) has not entered into, amended or terminated any Lease,
Governmental Authorization, Private Authorization, Material Agreement or
Employment Arrangement or any Contractual Obligation or transaction with
any Affiliate, except for terminations in the ordinary course of business,
consistent with prior practice, in accordance with the terms thereof;
(xii) has not amended or terminated and has kept in full force and
effect including without limitation renewing to the extent the same would
otherwise expire or terminate, all insurance policies and coverage;
(xiii) has not amended any provision of its Organic Documents;
(xiv) has not issued any additional shares of capital stock or any
Option Securities or Convertible Securities and has not entered, and will
not enter into any agreement to do the same; and
(xv) has not entered into any other transaction or series of
related transactions which individually or in the aggregate is material to
the Company, except in the ordinary course of business.
(b) From the end of its most recent fiscal year to the date hereof, except
as set forth in Section 3.16(b) of the Disclosure Schedule, neither the Company
nor any Company Subsidiary has declared, made or paid, or agreed to declare,
make or pay, any Distribution (other than a Distribution payable to the Company
or a Company Subsidiary).
Section 3.17. Bank Accounts, Etc. Section 3.17 of the Disclosure Schedule
contains a true and correct and complete list as of the date hereof of all
banks, trust companies, savings and loan associations and brokerage firms in
which the Company or any Company Subsidiary has an account or a safe deposit box
and the names of all Persons authorized to draw thereon, to have access thereto,
or to authorize transactions therein, the names of all Persons, if any, holding
powers of attorney from the Company or any Company
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Subsidiary and a summary statement as to the terms thereof.
Section 3.18. Adverse Restrictions. To the Company's knowledge, neither it
nor any Company Subsidiary is a party to or subject to, nor is any of its
property subject to, any Applicable Law, Governmental Authorization, Contractual
Obligation, Employment Arrangement, Material Agreement or Private Authorization,
or any other obligation or restriction of any kind or character, or any
aggregation thereof, which impairs in any material respect the ability of the
Company and its Subsidiaries, taken as a whole, to conduct their respective
businesses as it is currently being conducted or which could, to the Company's
knowledge, reasonably be expected to have any Adverse Effect on the Company,
except as set forth in Section 3.18 of the Disclosure Schedule.
Section 3.19. Broker or Finder. Except as set forth in Section 3.19 of
the Disclosure Schedule, no Person assisted in or brought about the negotiation
of this Agreement, the Merger or the subject matter of the Transactions in the
capacity of broker, agent or finder or in any similar capacity on behalf of the
Company or the Principal Stockholder.
Section 3.20. Environmental Matters.
(a) Except as set forth in Section 3.20(a) of the Disclosure Schedule:
(i) to the Company's knowledge, it and each Company Subsidiary is,
and at all times since its organization has been, in compliance in all
material respects with all Environmental Laws and has not been notified
that it is potentially liable, has not received any request for information
or other correspondence concerning any site or facility, and, to the
knowledge of the Company, is not a "potentially responsible party" under
the Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, the Resource Conservation Recovery Act, as amended, or
any similar state law;
(ii) neither the Company nor any Company Subsidiary has entered into
or received any consent decree, compliance order, or administrative order
relating to Environmental Law;
(iii) neither the Company nor any Company Subsidiary is a party in
interest or in default under any judgment, order, writ, injunction or
decree of any final order relating to Environmental Law;
(iv) to the Company's knowledge, the Company and each Company
Subsidiary (1) have obtained all material Governmental Authorizations and
Private Authorizations (including without limitation all Environmental
Permits) and made all material Governmental Filings which are required to
be filed by the Company for the ownership of its property, facilities and
assets and the operation of its businesses under all Environmental Laws,
(2) are, and at all times since its organization have been, in
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material compliance with the terms and conditions of all such required
Governmental and Private Authorizations, and (3) are not the subject of or
threatened with any Legal Action involving a demand for damages or other
potential liability with respect to violations or breaches of any
Environmental Requirement; and
(v) neither the Company nor any Company Subsidiary has assumed or
agreed to any obligation under any of their respective Leases to clean up
any Hazardous Materials which exists on such property other than as a
result of the Company's or a Company Subsidiary's operating and occupying
such property.
(b) Except as set forth in Section 3.20(b) of the Disclosure Schedule:
(i) neither the Company nor any Company Subsidiary has disposed,
released, buried or placed Hazardous Materials on, and, to the Company's
knowledge, no other disposal, release, burial or placement of Hazardous
Materials has occurred on, any property or facility leased, operated or
occupied by the Company or any Company Subsidiary during the period that
such facilities and properties were leased, operated or occupied by it or,
to the knowledge of the Company, at any other time;
(ii) to the knowledge of the Company, there has been no disposal,
release, burial or placement of Hazardous Materials on any property which
could reasonably be expected to result or has resulted in contamination of
or beneath any properties or facilities leased, operated or occupied by the
Company or any Company Subsidiary; and
(iii) no written notice has been received by the Company or any
Company Subsidiary and to the Company's knowledge no Lien has arisen on its
properties or facilities under Environmental Law.
(c) Neither the Company nor any Company Subsidiary has installed, used or
otherwise operated any above-ground or underground fuel storage tanks on
property leased, operated or occupied by it and, to the Company's knowledge, no
above-ground or underground fuel storage tanks exist on property leased,
operated or occupied by it.
(d) Section 3.20(d) of the Disclosure Schedule sets forth all site
assessments, audits or other investigations that have been conducted by or on
behalf of the Company or any Company Subsidiary as to environmental matters at
any property leased, operated or occupied by the Company or any Company
Subsidiary.
Section 3.21. Operational Matters. With respect to the Company and its
Subsidiaries, except as set forth in Section 3.21 of the Disclosure Schedule:
(a) customers are invoiced for special projects, such as purges, special
destructions,
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de-boxing and re-filing programs, only with respect to completed work; and
(b) approximately seventy-five percent of their customers are party to a
customer contract which limits the Company's liability in the event of loss,
damage or destruction to (i) replacement value of media or (ii) a nominal dollar
value per storage unit.
Section 3.22. Materiality.
The matters and items excluded from the representations and warranties
set forth in this Article by operation of the materiality exceptions and
materiality qualifications contained in such representations and warranties, in
the aggregate for all such excluded matters and items, are not and could not
reasonably be expected to be Adverse to the Company.
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF ACQUIROR
AND ACQUIROR MERGER SUBSIDIARY
Acquiror and Acquiror Merger Subsidiary, jointly and severally, represent,
warrant and covenant to, and agree with, the Company as follows:
Section 4.1. Organization and Qualification; Power and Authority; Effect
of Transaction.
(a) Each of Acquiror and Acquiror Merger Subsidiary is a corporation duly
incorporated, validly existing and in good standing under the laws of Delaware.
Each of Acquiror and Acquiror Merger Subsidiary is duly qualified and authorized
to do business and is in good standing as a foreign corporation in each
jurisdiction in which the character of its property or the nature of its
business or operations requires such qualification or authorization, except to
the extent the failure to so qualify or to maintain such authorizations would
not have an Adverse Effect.
(b) Each of Acquiror and Acquiror Merger Subsidiary has all requisite
power and authority (corporate and other) and has in full force and effect all
Governmental Authorizations and Private Authorizations in order to enable it to
execute and deliver, and to perform its obligations under, this Agreement and
each Collateral Document executed or required to be executed pursuant hereto or
thereto and to consummate the Merger and the Transactions; and the execution,
delivery and performance of this Agreement and each Collateral Document executed
or required to be executed pursuant hereto or thereto have been duly authorized
by all requisite corporate or other action. This Agreement has been duly
executed and delivered by each of Acquiror and Acquiror Merger Subsidiary and
constitutes, and each Collateral Document executed or required to be executed
pursuant hereto or thereto when executed and delivered by it will constitute,
legal, valid and binding obligations of Acquiror and Acquiror Merger Subsidiary,
respectively, enforceable in accordance with their
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respective terms (subject to the Enforceability Exceptions).
(c) Neither the execution and delivery of this Agreement or any Collateral
Document executed or required to be executed pursuant hereto or thereto, nor the
consummation of the Transactions, nor compliance with the terms, conditions and
provisions hereof or thereof by each of Acquiror and Acquiror Merger Subsidiary:
(i) will conflict with, or result in a breach or violation of, or
constitute a default under, any Applicable Law on the part of Acquiror or
Acquiror Merger Subsidiary or will conflict with, or result in a breach or
violation of, or constitute a default under, or permit the acceleration of
any obligation or liability in, or but for any requirement of giving of
notice or passage of time or both would constitute such a conflict with,
breach or violation of, or default under, or permit any such acceleration
in, any Contractual Obligation of Acquiror or Acquiror Merger Subsidiary,
or
(ii) will require any Governmental Authorization or Governmental
Filing or Private Authorization, except for the certificate of merger and
related filings under the DGCL in connection with the Merger and the
Transactions and as applicable state securities laws may apply to
compliance by Acquiror with the provisions of this Agreement relating to
the Acquiror Stock to be issued and except pursuant to the HSR Act.
Section 4.2. Capitalization of Acquiror and Acquiror Merger Subsidiary. As
of the date hereof, the authorized and outstanding capital stock of each of
Acquiror and Acquiror Merger Subsidiary is as set forth in Section 4.2 of the
Acquiror Disclosure Schedule. All of such outstanding capital stock has been
duly authorized and validly issued, is fully paid and nonassessable and is not
subject to any preemptive or similar rights. Between the date hereof and the
Closing, except as contemplated by this Agreement, Acquiror Merger Subsidiary
will not issue or sell or purchase or agree to issue or sell or purchase any
capital stock, convertible securities, options, warrants, purchase rights,
subscription rights or similar rights. All shares of common stock of Acquiror
Merger Subsidiary held by Acquiror have been duly authorized and validly issued
to Acquiror and are fully paid and non-assessable and are not subject to any
preemptive or similar rights. As of the date hereof, except for this Agreement,
Acquiror Merger Subsidiary does not have any outstanding or authorized
convertible securities, options, warrants, purchase rights, subscription rights
or similar rights. When issued to the Stockholders in connection with the
Merger, the Acquiror Stock will be duly authorized, validly issued, fully paid
and nonassessable and will not be subject to any preemptive or similar rights.
Section 4.3. SEC Filings; Financial Statements.
(a) Acquiror has filed all forms, reports and documents required to be
filed by it with the SEC since January 30, 1996, and has heretofore made
available to the Company, in
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the form filed with the SEC (including any exhibits thereto), (i) its Annual
Report on Form 10-K for the fiscal year ended December 31, 1996; (ii) its
Quarterly Reports on Form 10-Q for the quarters ended March 31, 1997 and June
30, 1997; (iii) its Current Report on Form 8-K dated June 12, 1997 related to
the acquisition of Safesite Records Management Corporation, as amended by its
Current Report on Form 8-K/A dated August 26, 1997; (iv) its proxy statement
relating to its 1997 meeting of stockholders; and (v) all other forms, reports
and registration statements filed by it with the SEC since August 14, 1997 (the
forms, reports and other documents referred to in clauses (i) through (v) above
being referred to herein collectively as the "Acquiror SEC Reports"). The
Acquiror SEC Reports and any forms, reports and other documents filed by the
Acquiror with the SEC after the date of this Agreement through the Closing Date,
(x) complied with or will comply in all material respects with the requirements
of the Securities Act and the Exchange Act, as the case may be, and the rules
and regulations thereunder and (y) did not at the time they were filed, or will
not at the time they are filed, 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 made therein, in the light of the circumstances
under which they were made, not misleading and have been, or will be, filed on a
timely basis. Acquiror has previously furnished to the Company a true, correct
and complete copy of any amendments or modifications (i) that have been made to
any document filed as an exhibit to the Acquiror SEC Reports and (ii) that have
not yet been, but are required to be, filed with the SEC.
(b) Acquiror's financial statements, including in each case the notes
thereto, contained in the Acquiror SEC Reports have been prepared in accordance
with GAAP applied on a consistent basis throughout the periods covered thereby,
except as otherwise noted therein, and fairly present the financial condition
and results of operations of Acquiror and its Subsidiaries, on the bases therein
stated, as of the respective dates thereof, and for the respective periods
covered thereby subject, in the case of unaudited financial statements, to the
absence of footnotes and other presentation items and to normal nonmaterial
year-end audit adjustments and accruals.
(c) Since the date of Acquiror's most recent report to the SEC (Form 10-Q
for the quarter ended June 30, 1997), there has been no Adverse Change in
Acquiror. To Acquiror's knowledge, there is no Event known to Acquiror which
Adversely Affects, or could reasonably be expected to Adversely Affect, Acquiror
or the ability of Acquiror to perform any of the obligations set forth in this
Agreement, or any Collateral Document executed or required to be executed
pursuant hereto or thereto, except for changes in general economic conditions or
the industry in general.
Section 4.4. Brokers. No Person assisted in or brought about the
negotiation of this Agreement, the Merger or the subject matter of the
Transactions in the capacity of broker, agent or finder or in any similar
capacity on behalf of Acquiror or Acquiror Merger Subsidiary.
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Section 4.5. No Intent to Dispose of Assets, etc. Neither Acquiror nor
Acquiror Merger Subsidiary has, and as of the Closing Date, will have, a present
plan or intention to dispose of the Company, whether by sale of stock, sale of
assets, merger, consolidation, liquidation, redemption, or otherwise, except as
permitted under Section 368(a)(2)(C) of the Code and the administrative
authorities under Section 368 of the Code.
ARTICLE 5.
ADDITIONAL COVENANTS
Section 5.1. Access to Information; Confidentiality.
(a) The Company shall afford to Acquiror and its Representatives full
access during normal business hours throughout the period prior to the Effective
Time to all of the Company's (and its Subsidiaries') properties, books,
contracts, commitments and records (including without limitation Tax Returns)
and, during such period, shall furnish promptly upon request (i) to the extent
not provided for pursuant to the preceding clause, all financial records,
ledgers, workpapers and other sources of financial information possessed or
controlled by the Company, any Company Subsidiary or the Company's accountants
reasonably deemed by Acquiror or its Representatives necessary or useful for the
purpose of performing an audit of the Company and its Subsidiaries and
certifying financial statements and financial information, and (ii) such other
information concerning any of the foregoing as Acquiror shall reasonably
request. In addition, each Party shall furnish promptly upon request a copy of
each report, schedule and other document filed or received by any of them
pursuant to the requirements of any Applicable Law (including without limitation
federal or state securities laws) or filed by it or any of its Subsidiaries with
any Authority in connection with the Transactions or which may have a material
effect on their respective businesses, operations, properties, prospects,
personnel, condition, (financial or other), or results of operations. The
Company and Acquiror acknowledge that they have heretofore executed
confidentiality agreements, dated April 14, 1997 and July 16, 1997 (the
"Confidentiality Agreements"), which separately and as incorporated herein shall
remain in full force and effect after and notwithstanding the execution and
delivery of this Agreement, and that information obtained from the Company by
Acquiror or its Representatives or by the Company or its Representatives from
Acquiror, pursuant to this Section 5.1(a), the Confidentiality Agreements or
otherwise, shall be subject to the provisions of the Confidentiality Agreements.
(b) Subject to the terms and conditions the Confidentiality Agreements,
Acquiror and the Company may disclose such information as may be necessary in
connection with seeking all Governmental and Private Authorizations or that is
required by Applicable Law to be disclosed. In the event that this Agreement is
terminated in accordance with its terms, Acquiror and the Company shall each
promptly redeliver all non-public written material provided pursuant to this
Section or any other provision of this Agreement or otherwise in
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connection with the Merger and the Transactions and shall not retain any copies,
extracts or other reproductions in whole or in part of such written material
other than one copy thereof which shall be delivered to independent counsel for
such party.
(c) No investigation pursuant to this Section 5.1 shall affect any
representation or warranty in this Agreement of any Party hereto or any
condition to the obligations of the Parties hereto.
Section 5.2. Agreement to Cooperate.
(a) Each of the Parties shall use its reasonable best efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary under Applicable Law to consummate the Merger and make effective the
Transactions, including using its reasonable best efforts (i) to prepare and
file with the applicable Authorities as promptly as practicable after the
execution of this Agreement all requisite applications and amendments thereto,
together with related information, data and exhibits, necessary to request
issuance of orders approving the Merger and the Transactions by all such
applicable Authorities, each of which must be obtained or become final in order
to satisfy the condition applicable to it set forth in Section 6.1(d), (ii) to
obtain all necessary or appropriate waivers, consents and approvals, (iii) to
effect all necessary registrations, filings and submissions (including without
limitation filings under federal or state securities laws or the HSR Act and any
other submissions requested by the SEC, the Federal Trade Commission or the
Department of Justice) and (iv) to lift any injunction or other legal bar to the
Merger and the Transactions (and, in such case, to proceed with the Merger and
the Transactions as expeditiously as possible), subject, however, to the
requisite vote of the Stockholders. Each of the Parties recognizes that the
consummation of the Merger and the Transactions is subject to the preacquisition
notification requirements of the HSR Act. Each agrees that, to the extent
required by Applicable Law to consummate the Merger, it will file with the
Antitrust Division of the Department of Justice and the Federal Trade Commission
a Notification and Report Form in a manner so as to constitute substantial
compliance with the notification requirements of HSR. Each covenants and agrees
to use its reasonable best efforts to achieve the prompt termination or
expiration of any waiting period or any extension thereof under the HSR Act.
Notwithstanding anything to the contrary contained in this Agreement, in
connection with or as a condition to receiving the consent or approval of any
Authority or otherwise, Acquiror shall not be required to divest, abandon,
license or take similar action with respect to any assets (tangible or
intangible) of it or any of its Subsidiaries (including, without limitation, the
Surviving Corporation after consummation of the Merger).
(b) The Company will use its reasonable best efforts on or prior to the
Closing Date to obtain the satisfaction of the conditions specified in Sections
6.1 and 6.2. Each of Acquiror and Acquiror Merger Subsidiary will use its
reasonable best efforts on or prior to the Closing Date to obtain the
satisfaction of the conditions applicable to it specified in Sections 6.1 and
6.3.
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(c) The Company shall take such steps as are necessary and appropriate to
obtain, and shall promptly obtain, satisfaction and discharge of all Liens set
forth in Section 3.5(a) of the Disclosure Schedule in favor of First Source
Financial LLP, subject to satisfaction of Acquiror's obligations in Section 2.5
hereof.
(d) The Parties shall cooperate with one another in the preparation,
execution and filing of all Returns, questionnaires, applications, or other
documents regarding any real property transfer or gains, sales, use, transfer,
value added, stock transfer and stamp Taxes or any Plan, Benefit Arrangement or
Employment Arrangement, any transfer, recording, registration and other fees,
and any similar Taxes which become payable in connection with the Transactions
that are required or permitted to be filed on or before the Effective Time.
(e) The Company (i) shall supply consolidated financial statements for the
Company (and any and all documents and consents related thereto) which comply
with Regulation S-X under the Securities Act and the applicable published rules
and regulations thereunder for inclusion in any registration statement or other
public filing of Acquiror under the Securities Act and the Exchange Act, and any
other offering circular or document used by Acquiror in any other offering,
whether public or private, and (ii) shall use its best efforts to cause the
Company's independent accountants to cooperate with Acquiror in connection with
the foregoing (including, without limitation, using best efforts to cause such
independent accountants to deliver so-called "comfort letters," written consents
and representation letters relating to the foregoing); provided, however, that
Acquiror shall reimburse the Company for its reasonable out-of-pocket expenses
incurred in connection with its compliance with this Section 5.2(e) (which
reimbursement obligation will survive termination of this Agreement pursuant to
Section 7.1 (other than a termination pursuant to Section 7.1(d)(ii)(B)(I) for
the Company's breach of this Section 5.2(e) and other than a termination
pursuant to Section 7.1(d)(ii)(B)(II))); provided further that such
reimbursement obligation shall not extend to any services that would ordinarily
be provided by such accountants to the Company and its Subsidiaries. Without
limiting the generality of the foregoing, the Company agrees that it will (i)
consent to the use of such audited financial statements in any such registration
statement, document or circular and (ii) execute and deliver, and cause its
officers to execute and deliver, such "representation" letters as are
customarily delivered in connection with audits and as the Company's and
Acquiror's independent accountants may reasonably request under the
circumstances.
(f) Without intending to limit the generality of the covenants set forth
in Section 5.12, the Company agrees that it shall not without the prior written
consent of Acquiror, which consent shall not unreasonably be withheld or
delayed, (i) enter into, agree to or otherwise become bound by any new leases of
real property or amend or exercise any option to extend any existing lease of
real property or (ii) hire any new employee whose annual compensation exceeds
$50,000. In addition, the Company shall confer on a regular and frequent basis
with Acquiror with respect to operational matters of the Company.
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Section 5.3. Investment Agreements; Registration Rights Agreement.
(a) Prior to the Closing Date, the Company shall deliver to Acquiror (i)
investment agreements, substantially in the form attached hereto as Exhibit
5.3(a)(i) (each an "Investment Agreement"), executed by each Stockholder, and
(ii) noncompetition and nonsolicitation agreements, substantially in the form
attached hereto as Exhibit 5.3(a)(ii) (each a "Noncompetition and
Nonsolicitation Agreement"), executed by those individuals listed in Section
5.3(a)(ii) of the Disclosure Schedule, and Acquiror shall countersign each such
Investment Agreement and Noncompetition and Nonsolicitation Agreement on or
prior to the Closing Date. Notwithstanding anything to the contrary herein, it
shall be a condition to a Stockholder's right to receive shares of Acquiror
Stock pursuant to the Merger that such Stockholder shall have executed and
delivered to Acquiror an Investment Agreement. In the event a Stockholder does
not so execute and deliver an Investment Agreement, such Stockholder shall not
be entitled to receive any Stock Merger Consideration and shall receive, in lieu
thereof, cash in an amount equal to the product of (a) the shares of Acquiror
Stock such Stockholder would have been entitled to and (b) the Determination
Price.
(b) Acquiror agrees that it will provide the Principal Stockholder the
opportunity to execute a Joinder to Registration Rights Agreement substantially
in the form of Exhibit 5.3(b) hereto pursuant to which the Principal shall
become party to that certain Amended and Restated Registration Rights Agreement
dated as of June 12, 1997 (the "Registration Rights Agreement") with respect to
shares of Acquiror Stock to be issued to the Principal Stockholder pursuant to
Section 2.1(a) hereof.
Section 5.4. No Solicitation. The Company shall not, nor shall it permit
any Subsidiary, or any of the Company's or any Company Subsidiary's
Representatives (including, without limitation, any investment banker, attorney
or accountant retained by it) 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, it or any Company
Subsidiary 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
Company or its Board of Directors from making any disclosure to Stockholders
that, in the reasonable judgment of its Board of Directors in accordance with,
and based upon the written advice of, outside counsel, is required under
Applicable Law. The Company shall promptly advise Acquiror of, and communicate
the material terms of, any proposal it may receive, or any inquiries it 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 Company 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 Company shall
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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, or affects any other obligation of the Company under this
Agreement.
Section 5.5. Directors' and Officers' Indemnification. From and after the
Effective Time, the Surviving Corporation shall indemnify, defend and hold
harmless the present and former officers and directors of the Company and its
Subsidiaries against all Claims or amounts that, with the approval of the
Surviving Corporation as to settlements only, are paid in settlement of or
otherwise in connection with any Claim based in whole or in part on the fact
that such Person is or was a director or officer of the Company or any Company
Subsidiary and arising out of actions or omissions occurring at or prior to the
Effective Time (including, without limitation, the Merger and the Transactions),
in each case to the fullest extent currently provided under the Company's or
such Subsidiary's Organic Documents (but only to the extent permitted under the
DGCL), and shall pay any expenses in advance of the final disposition of any
such action or proceeding to each such Person to the fullest extent permitted
under the DGCL, upon receipt from the Person to whom expenses are advanced of an
undertaking to repay such advances to the extent required under the DGCL.
Acquiror hereby guarantees the performance by the Surviving Corporation of all
of its obligations in this Section 5.5 and the payment of all sums which would
be due hereunder from the Surviving Corporation.
Section 5.6. Notification of Certain Matters. Each party shall give prompt
notice to the other of the occurrence or non-occurrence of any Event the
occurrence or non-occurrence of which would be likely to cause in any material
respect (i) any representation or warranty made by it contained in this
Agreement to be untrue or inaccurate, or (ii) any change to be made in the
Disclosure Schedule or the Acquiror Disclosure Schedule, as the case may be, or
(iii) any failure of the Company or Acquiror, as the case may be, to comply with
or satisfy, or be able to comply with or satisfy, any material covenant,
condition or agreement to be complied with or satisfied by it hereunder;
provided, however, that the delivery of any notice pursuant to this Section 5.6
shall not limit or otherwise affect the remedies available hereunder to the
Party receiving such notice.
Section 5.7. Public Announcements. Until the Closing, or in the event of
termination of this Agreement, each party shall consult with the other before
issuing any press release or otherwise making any public statements with respect
to this Agreement, the Merger or any Transaction and shall not issue any such
press release or make any such public statement without the prior consent of the
other, which consent shall not be unreasonably withheld or delayed.
Notwithstanding the foregoing, the Company acknowledges and agrees that Acquiror
may, without the prior consent of the Company, issue such press releases or make
such public statements as may be required by Applicable Law, in which case, to
the extent practicable, Acquiror will consult with, and exercise in good faith,
all reasonable business efforts to agree with the Company regarding the nature,
extent and form of such press release or public statement, and, in any event,
with prior notice to the Company.
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Section 5.8. Obligations of Acquiror. Acquiror agrees to take all action
necessary to cause Acquiror Merger Subsidiary and the Surviving Corporation to
perform their respective obligations under this Agreement. Acquiror shall be
liable as provided herein for any breach of any representation, warranty,
covenant or agreement of Acquiror Merger Subsidiary and for any breach of this
covenant.
Section 5.9. Employee Benefits; Severance Policy.
(a) Provided that it complies in all material respects with Applicable Law
and the terms of any Employment Arrangements identified in Section 5.9(a) of the
Disclosure Schedule, the Surviving Corporation may, in its sole discretion,
substitute employee compensation, benefit and severance programs for those of
the Company and any Company Subsidiaries as are comparable with the programs
provided from time to time to Acquiror's employees and the employees of
Acquiror's Subsidiaries. Subject to the preceding sentence, the Surviving
Corporation shall have no obligation to continue the existence of any Plan or
Benefit Arrangement maintained by the Company or any Company Subsidiary.
(b) At least one (1) day prior to the Closing Date, the Company (including
for purposes of this Section 5.9(b) any Company Subsidiary) shall take all
actions necessary to terminate each Plan maintained by the Company that complies
or is intended to comply with Section 401 of the Code (each a "Qualified Plan").
If a Qualified Plan is terminated in accordance with this Section 5.9(b),
benefit accruals, including contributions of salary reduction contributions, if
any, shall cease. The Company agrees to take no action to merge any of its
Qualified Plans, transfer the assets of any of its Qualified Plans, or terminate
any of its Qualified Plans, except as otherwise provided in this Section 5.9(b),
following the execution of this Agreement without the consent of Acquiror.
Section 5.10. Certain Actions Concerning Business Combinations. The
Company will not apply, and will not take any action resulting in the
application of, or otherwise elect to apply, the provisions of applicable state
takeover laws, if any, with respect to or as a result of the Merger or the
Transactions.
Section 5.11. Tax Treatment. Each of Acquiror, Acquiror Merger Subsidiary
and the Company shall use its reasonable best efforts to cause the Merger to
qualify as a tax-free reorganization under the provisions of Section 368(a) of
the Code and to obtain the opinions of counsel referred to in Sections 6.2(i)
and 6.3(d). Without limiting the foregoing, Acquiror covenants that it will not
dispose of the Company, whether by sale of stock, sale of assets, merger,
consolidation, liquidation, redemption, or otherwise, for a period of one year
after the Closing Date, except as permitted under Section 368(a)(2)(C) of the
Code and the administrative authorities under Section 368 of the Code, or unless
it first shall have received an opinion of counsel from Sullivan & Worcester LLP
or another law firm of national standing that is reasonably acceptable to the
Stockholders and Acquiror, addressed to Acquiror and the
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Stockholders, that the proposed disposition will not affect the tax-free nature
of the Merger. Acquiror, Acquiror Merger Subsidiary and the Company shall each
provide to both Sullivan & Worcester LLP and Kirkland & Ellis representations
substantially in the form attached as Exhibit 5.11 hereto to facilitate the
provision of the tax opinions described in Sections 6.2(i) and 6.3(d).
Section 5.12. Pre-Closing Covenants of the Company and its Subsidiaries.
Between the date hereof and the Closing Date, the Company and its Subsidiaries
(except (i) as may be described on Section 5.12 of the Disclosure Schedule, (ii)
as may be required or expressly contemplated by the terms of this Agreement, or
(iii) as may be consented to by Acquiror, which consent shall not be
unreasonably withheld or delayed):
(i) will operate its business in the normal, usual and customary
manner in the ordinary course of business, consistent with prior practice;
(ii) will not sell or otherwise dispose of or contract to sell or
otherwise dispose of any of its properties or assets, other than in the
ordinary course of business;
(iii) except in each case in the ordinary course of business,
consistent with prior practice:
(A) will not voluntarily incur any obligations or liabilities
(fixed, contingent or other);
(B) will not enter into any commitments in excess of $35,000 in
the aggregate; and
(C) will not cancel any debts or claims in excess of $35,000 in
the aggregate; and
(iv) will not make or commit to make, any additions to its property
or any purchases of machinery or equipment in excess of $35,000 in the
aggregate except in the ordinary course of business, consistent with past
practice;
(v) will not discharge or satisfy any Lien and will not pay any
obligation or liability (absolute or contingent) other than current
liabilities or obligations under contracts then existing or thereafter
entered into in the ordinary course of business, consistent with prior
practice, and commitments under Leases existing on the date hereof or
incurred since such date in the ordinary course of business or repaying or
prepaying long-term indebtedness or the current portion thereof; provided,
however, that in no event shall the Company or any of its Subsidiaries
prepay notes issued to any Person or Persons from which any Company
Subsidiary acquired its business except to the extent expressly required by
the terms thereof;
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(vi) will not create or permit to be created any Lien on any of its
tangible property;
(vii) except in the ordinary course of business, will not transfer or
create, or permit to be created, any Lien on any Intangible Assets;
(viii) except in the ordinary course of business, consistent with
prior practice, will not increase the compensation payable or to become
payable to any of its directors, officers, employees, advisers,
consultants, salesmen or agents or otherwise alter, modify or change the
terms of their employment or engagement;
(ix) will not waive any rights of material value without fair and
adequate consideration;
(x) will not enter into, amend or terminate any Lease, Governmental
Authorization, Private Authorization, Material Agreement or Employment
Arrangement or any Contractual Obligation or transaction with any
Affiliate, except for terminations in the ordinary course of business,
consistent with prior practice, in accordance with the terms thereof;
(xi) will not amend or terminate, and has kept and will keep in full
force and effect including without limitation renewing to the extent the
same would otherwise expire or terminate, all insurance policies and
coverage;
(xii) will not amend any provision of its Organic Documents;
(xiii) will not issue, sell or purchase any additional shares of
capital stock or any Option Securities or Convertible Securities and will
not enter into any agreement to do the same;
(xiv) will not amend, consolidate or terminate any of its Plans or
Benefit Arrangements or take any actions in furtherance of the foregoing
and will not make any loans under any 401(k) plans; and
(xv) will not enter into any other transaction or series of related
transactions which individually or in the aggregate is material to the
Company, except in the ordinary course of business.
ARTICLE 6.
CLOSING CONDITIONS
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Section 6.1. Conditions to Obligations of Each Party to Effect the Merger.
The respective obligations of each Party to effect the Merger shall be subject
to the satisfaction at or prior to the Effective Time of the following
conditions, any or all of which may be waived, in whole or in part, to the
extent permitted by Applicable Law:
(a) This Agreement, the Merger and the Transactions shall have been
approved and adopted in accordance with the DGCL by the affirmative vote, or to
the extent permitted by Applicable Law, by written consent, of the Stockholders
holding at least the minimum number of shares of the Company Stock then issued
and outstanding as are required by Applicable Law and the Company's Organic
Documents for such approval and adoption;
(b) As of the Closing Date, no Legal Action shall be pending before or
threatened in writing by any Authority seeking to restrain, prohibit, make
illegal or delay materially, or seeking material damages from the Party seeking
to invoke this Section 6.1(b) and, in case Acquiror is seeking to invoke this
Section 6.1(b), the Company, or to impose any Adverse conditions in connection
with the consummation of the Merger and the Transactions which might, in the
reasonable business judgment of Acquiror, have an Adverse Effect on Acquiror and
its Subsidiaries taken as a whole assuming consummation of the Merger;
(c) Other than the filing of the certificate of merger in accordance with
the DGCL, all authorizations, consents, waivers, orders or approvals required to
be obtained, and all filings, submissions, registrations, notices or
declarations required to be made, by Acquiror or Acquiror Merger Subsidiary and
the Company prior to the consummation of the Merger and the Transactions shall
have been obtained from, and made with, all required Authorities, except for
such authorizations, consents, waivers, orders, approvals, filings,
registrations, notices or declarations the failure to obtain or make would not,
in the reasonable judgment of Acquiror, assuming consummation of the Merger,
have an Adverse Effect on the Company; and
(d) The filing and waiting period requirements under the HSR Act relating
to the consummation of the Merger shall have been complied with.
Section 6.2. Conditions to Obligations of Acquiror and Acquiror Merger
Subsidiary. The obligations of Acquiror and Acquiror Merger Subsidiary to effect
the Merger shall be subject to the satisfaction at or prior to the Effective
Time of the following conditions, any or all of which may be waived, in whole or
in part, to the extent permitted by Applicable Law:
(a) All agreements, certificates, opinions and other documents shall be
reasonably satisfactory in form, scope and substance to Acquiror and its
counsel, and Acquiror and its counsel shall have received all information and
copies of all documents, including records of corporate proceedings, which they
may reasonably request in connection therewith, such
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documents where appropriate to be certified by proper corporate officers;
(b) The representations and warranties of the Company contained in this
Agreement or in any Collateral Document shall be true and correct in all
material respects at and as of the Closing Date with the same force and effect
as though made on and as of such date except those which speak as of a certain
date which shall continue to be true and correct in all material respects as of
such date on the Closing Date; each and all of the covenants, agreements and
conditions to be performed or satisfied by the Company or the Principal
Stockholder hereunder or under the Stockholders' Agreement at or prior to the
Closing Date shall have been duly performed or satisfied in all material
respects; and the Company shall have furnished Acquiror with such certificates
and other documents evidencing the truth of such representations and warranties
and the performance of such covenants, agreements or conditions as Acquiror
shall have reasonably requested;
(c) The Company shall have furnished Acquiror and, at Acquiror's request,
any bank or other financial institution providing credit to Acquiror in order
for Acquiror to consummate the Merger, with favorable opinions dated the Closing
Date of Kirkland & Ellis, counsel for the Company, in the form attached hereto
as Exhibit 6.2(c);
(d) Each Stockholder of the Company receiving shares of Acquiror Stock
shall have executed and delivered an Investment Agreement in the form of Exhibit
5.3 hereto, and each individual listed in Section 5.3(a)(ii) of the Disclosure
Schedule shall have executed and delivered a Noncompetition and Nonsolicitation
Agreement in the form of Exhibit 5.3(a)(ii) hereto;
(e) The Company shall have obtained (i) consents to the assignment and
continuation of (A) all Material Agreements listed on Section 3.1(c) of the
Disclosure Schedule, subject, to the extent applicable, to satisfaction of
Acquiror's obligations in Section 2.5 hereof, and (B) as to any Material
Agreement not identified on Section 3.1(c) of the Disclosure Schedule, any such
Material Agreement which, in the reasonable judgment of Acquiror, requires such
consents, and (ii) satisfaction and discharge of all Liens set forth in Section
3.5(a) of the Disclosure Schedule in favor of First Source Financial LLP,
subject to satisfaction of Acquiror's obligations in Section 2.5 hereof;
(f) As of the Closing Date, there shall not have occurred and be
continuing any Adverse Change affecting the Company from the condition thereof
(financial and other) reflected in the Financial Statements;
(g) Each of the officers and directors of the Company and each of its
Subsidiaries and each trustee under each Plan shall have submitted his or her
unqualified written resignation, dated as of the Closing Date, from all such
positions held with the Company and each of its Subsidiaries and as a trustee
for each such Plan;
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(h) Except for those Contractual Obligations which Section 3.9 of the
Disclosure Schedule specifically indicates will not be satisfied and discharged
prior to the Closing Date, and except for such Contractual Obligations as to
which Acquiror has notified the Company that it wants to retain, which notice
shall be delivered not less than twenty (20) days prior to Closing and which
Contractual Obligations shall be effective as of the Effective Time, all
Contractual Obligations set forth in Section 3.9 of the Disclosure Schedule
shall have been satisfied and discharged as of the Closing Date;
(i) Acquiror shall have received a favorable opinion, dated the Closing
Date, of Sullivan & Worcester LLP, its special tax counsel, to the effect that
this Agreement constitutes a tax-free plan of reorganization in accordance with
the provisions of Section 368(a) of the Code and as to the consequences thereof
to Acquiror; and
(j) Acquiror, the Company, the Agent and the Escrow Agent shall have
executed and delivered the Escrow Agreement and the Escrow Indemnity Funds
described therein shall have been delivered to the Escrow Agent.
Section 6.3. Conditions to Obligations of the Company. The obligations of
the Company to effect the Merger shall be subject to the satisfaction at or
prior to the Effective Time of the following conditions, any or all of which may
be waived, in whole or in part to the extent permitted by Applicable Law:
(a) Acquiror shall have furnished the Company and the Principal
Stockholder with the favorable opinion, dated the Closing Date, of Sullivan &
Worcester LLP, counsel to Acquiror, in the form attached hereto as Exhibit
6.3(a);
(b) All agreements, certificates, opinions and other documents shall be
reasonably satisfactory in form, scope and substance to the Company and its
counsel, and the Company and its counsel shall have received all information and
copies of all documents, including records of corporate proceedings, which they
may reasonably request in connection therewith, such documents where appropriate
to be certified by proper corporate officers;
(c) The representations and warranties of each of Acquiror and Acquiror
Merger Subsidiary contained in this Agreement or in any Collateral Document
shall be true and correct in all material respects at and as of the Closing Date
with the same force and effect as though made on and as of such date except
those which speak as of a certain date which shall continue to be true and
correct in all material respects as of such date on the Closing Date; each and
all of the covenants, agreements and conditions to be performed or satisfied by
each of Acquiror and Acquiror Merger Subsidiary hereunder at or prior to the
Closing Date shall have been duly performed or satisfied in all material
respects; and each of Acquiror and Acquiror Merger Subsidiary shall have
furnished the Company with such certificates and other documents evidencing the
truth of such representations and warranties and the performance of such
covenants, agreements or conditions as the Company shall have requested;
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(d) The Company shall have received a favorable opinion, dated the Closing
Date, of Kirkland & Ellis, its special tax counsel, to the effect that this
Agreement constitutes a tax-free plan of reorganization in accordance with the
provisions of Section 368(a) of the Code and as to the consequences thereof to
the Stockholders; and
(e) The Escrow Agreement shall have been executed and delivered by
Acquiror and the escrow agent and Acquiror shall have executed and delivered the
Joinder to Registration Rights Agreement in the form of Exhibit 5.3(b).
ARTICLE 7.
TERMINATION, AMENDMENT AND WAIVER
Section 7.1. Termination. This Agreement may be terminated at any time
prior to the Effective Time, whether before or after approval of this Agreement,
the Merger and the Transactions by the Stockholders:
(a) by mutual consent of Acquiror and the Company;
(b) by either Acquiror or the Company if any permanent injunction, decree
or judgment by any Authority preventing the consummation of the Merger shall
have become final and nonappealable;
(c) by the Company in the event (i) the Company is not in breach of this
Agreement and none of its representations and warranties shall have become and
continue to be untrue in any material respect, unless such breach or untruth is
capable of being cured by and will not prevent or delay consummation of the
Merger by or beyond the Termination Date, and (ii) either (A) Acquiror or
Acquiror Merger Subsidiary is in breach of this Agreement or any of its
representations or warranties shall have become and continue to be untrue in any
material respect, unless, in either case such breach or untruth is capable of
being cured by and will not prevent or delay consummation of the Merger by or
beyond the Termination Date, or (B) the Merger and the Transaction have not been
consummated by the Termination Date;
(d) by Acquiror:
(i) if the Merger and the Transactions fail to receive the approval
required by Applicable Law, by vote (or to the extent permitted by
Applicable Law, by consent) of the Stockholders;
(ii) in the event (A) neither Acquiror nor Acquiror Merger Subsidiary
is in breach of this Agreement and none of their representations or
warranties shall have
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become and continue to be untrue in any material respect, unless such
breach or untruth is capable of being cured by and will not prevent or
delay consummation of the Merger by or beyond the Termination Date, and (B)
either (I) the Company is in breach of this Agreement or any of its
representations or warranties shall have become and continue to be untrue
in any material respect, unless, in either case, such breach or untruth is
capable of being cured by and will not prevent or delay consummation of the
Merger by or beyond the Termination Date, (II) the Company's independent
accountants shall have failed to deliver written consents (or any "comfort
letters", representation letters or other documents customarily requested
by underwriters in connection with an underwritten offering of securities
or by initial purchasers in connection with a private placement of
securities) relating to the Company's provision, pursuant to and in
accordance with Section 5.2(e), of consolidated financial statements for
the Company in connection with any registration statement or other public
filing of Acquiror under the Securities Act and the Exchange Act, or any
other offering circular or document used by Acquiror in any other offering,
whether public or private, (III) the Merger and the Transactions have not
been consummated prior to the Termination Date, or (IV) the Principal
Stockholder is in breach of the Stockholder Agreement or any of his
representations or warranties shall have become and continue to be untrue
in any material respect, unless, in either case, such breach or untruth is
capable of being cured by and will not prevent or delay consummation of the
Merger by or beyond the Termination Date; or
(iii) if (A) the Board of Directors of the Company shall (I) withdraw,
modify or change its recommendation so that it is not in favor of this
Agreement, the Merger or the Transactions, or shall have resolved to do any
of the foregoing, or (II) have recommended or resolved to recommend to the
Stockholders any Other Transaction, or (B) the Company shall have entered
into or agreed to enter into any Other Transaction.
Section 7.2. Effect of Termination. Except as provided in Sections 5.1,
5.7, 7.2 and 7.5 and in the provisos in the first sentence of Section 5.2(e), in
the event of the termination of this Agreement pursuant to Section 7.1, this
Agreement shall forthwith become void, there shall be no liability on the part
of any Party, or any of their respective officers or directors, to the other and
all rights and obligations of any Party shall cease; provided, however, that
such termination shall not relieve any Party from liability for the knowing and
willful breach of any of its representations, warranties, covenants or
agreements set forth in this Agreement, or impair the right of the Company, on
the one hand, and Acquiror and Acquiror Merger Subsidiary, on the other hand, to
compel specific performance of the other party of its or their obligations under
this Agreement which survive termination.
Section 7.3. Amendment. This Agreement may be amended by the Parties by
action taken by or on behalf of the respective Boards of Directors thereof at
any time prior to the Effective Time; provided, however, that, after approval of
this Agreement and the Merger by the Stockholders, no amendment, which under
Applicable Law may not be made without
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the approval of the Stockholders, may be made without such approval. This
Agreement may not be amended except by an instrument in writing signed by the
Parties hereto.
Section 7.4. Waiver. At any time prior to the Effective Time, except to
the extent Applicable Law does not permit, either Acquiror and Acquiror Merger
Subsidiary or the Company may extend the time for the performance of any of the
obligations or other acts of the other, subject, however, to the terms and
conditions of Section 7.1, waive any inaccuracies in the representations and
warranties of the other contained herein or in any document delivered pursuant
hereto and waive compliance by the other with any of the agreements, covenants
or conditions contained herein. Any such extension or waiver shall be valid only
if set forth in an agreement in writing signed by the Party or Parties to be
bound thereby.
Section 7.5. Fees, Expenses and Other Payments. All costs and expenses
incurred in connection with this Agreement, the Merger and the Transactions, and
compliance with Applicable Law and Contractual Obligations as a consequence
hereof and thereof, including, without limitation, filing fees under the HSR
Act, fees and disbursements of counsel, financial advisors and accountants,
incurred by the Parties shall be borne solely and entirely by the Party which
has incurred such costs and expenses (with respect to such Party, its
"Expenses"); provided, however, that Acquiror shall reimburse the Principal
Stockholder for the filing fee payable in connection with his filing of a
Notification and Report Form under the HSR Act (if such a filing is required) in
connection with his acquisition of shares of Acquiror Stock pursuant to the
Merger. Without limiting the generality of the foregoing, the Company agrees to
pay its and its Subsidiaries' Expenses in full prior to the Effective Time, it
being the understanding of the Parties that none of Acquiror, the Surviving
Corporation or Acquiror Merger Subsidiary shall become liable for any of the
Company's Expenses by virtue of the Merger.
Section 7.6. Effect of Investigation. The right of any Party to terminate
this Agreement pursuant to Section 7.1 shall remain operative and in full force
and effect regardless of any investigation made by or on behalf of any Party, or
any Person controlling any such party or any of their respective Representatives
whether prior to or after the execution of this Agreement.
ARTICLE 8.
INDEMNIFICATION; COMPANY INDEBTEDNESS CALCULATION
Section 8.1. Survival. The representations, warranties, covenants and
agreements of the Company contained in or made pursuant to this Agreement or any
Collateral Document shall survive the Closing and shall remain operative and in
full force and effect for a period of one (1) year after the Closing Date (the
"Escrow Indemnity Period"), regardless of
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any investigation or statement as to the results thereof made by or on behalf of
any Party. No claim for indemnification may be asserted after the expiration of
the Escrow Indemnity Period. Notwithstanding anything herein to the contrary,
any representation, warranty, covenant and agreement which is the subject of a
Claim which is asserted in writing prior to the expiration of the Escrow
Indemnity Period shall survive with respect to such Claim or any dispute with
respect thereto until the final resolution thereof.
Section 8.2. Escrow; Indemnification. The Parties hereto agree, and by
adopting and approving this Agreement and the Merger, the Stockholders shall
agree, that the Escrow Indemnity Funds will be withheld from the Exchange Merger
Consideration and held in escrow in accordance with the terms of this Article 8
and the Escrow Agreement in order to provide a fund to indemnify Acquiror and
hold Acquiror harmless from and against any and all damages, claims, losses,
expenses, costs, obligations and liabilities, including without limitation
liabilities for all reasonable attorneys', accountants', and experts' fees and
expenses including those incurred to enforce the terms of this Agreement or any
Collateral Document (collectively, "Loss and Expense"), suffered, directly or
indirectly, by Acquiror by reason of, or arising out of:
(a) any breach of representation or warranty made by the Company pursuant
to this Agreement or any Closing Certificate or any failure by the Company to
perform or fulfill any of its covenants or agreements set forth in this
Agreement or any Closing Certificate;
(b) any Legal Action or other Claim by any third party relating to the
Company to the extent such Legal Action or other Claim has resulted in a breach
of representation or warranty by the Company pursuant to this Agreement or any
Collateral Document;
(c) the Indebtedness, if any, of the Company and its Subsidiaries as of
the Effective Time exceeding the Company Indebtedness Calculation;
(d) the amount of the Houston Earnout exceeding $300,000; or
(e) any Legal Action or other Claim by any individual relating to or
arising out of (i) the terms, conditions or circumstances of such individual's
employment (including as a part-time employee or consultant) by the Company or
any Company Subsidiary prior to the Closing or (ii) the repurchase of Company
Stock in connection with the termination of such individual's employment by the
Company or any Company Subsidiary prior to the Closing.
The Company hereby appoints, and by adopting and approving this Agreement
and the Merger, the Stockholders shall appoint, Kent P. Dauten (the "Agent",
with full and unqualified power to delegate to one or more persons the authority
granted to him hereunder) to act as his, her or its agent and attorney-in-fact,
with full power of substitution, to take all actions called for by this Article
8 and the Escrow Agreement on his, her or its behalf, in accordance with the
terms of this Article 8 and the Escrow Agreement.
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Section 8.3. Limitation of Liability; Disposition of Escrow Indemnity
Funds.
(a) Notwithstanding the provisions of Section 8.2, after the Closing,
except as set forth in the following sentence, Acquiror's rights to
indemnification shall be subject to the following limitations: (i) Acquiror
shall be entitled to recover its Loss and Expense in respect of any Claim only
if the Loss and Expense for all Claims exceeds, in the aggregate, $150,000 (and
then only to the extent in excess of such $150,000) and (ii) in no event shall
the aggregate amount to be paid to Acquiror exceed the lesser of (x) the Escrow
Indemnity Funds and (y) shares of Acquiror Stock having an aggregate Market
Value (valued for such purpose at the Market Price at which such shares are
valued for purpose of the distribution from the Escrow Indemnity Funds) of Two
Million Five Hundred Thousand Dollars ($2,500,000). The limitations in clause
(i) of the first sentence of this Section 8.3(a) shall not apply to Claims in
respect of a breach by the Company of its representations and warranties in
Section 3.12 of this Agreement or its obligations under Section 5.9(b) or 7.5 of
this Agreement or to Claims pursuant to Section 8.2(c) or (d) or clause (ii) of
Section 8.2(e) of this Agreement.
(b) Anything in this Agreement, including without limitation the
provisions of Sections 8.2 or 8.3(a), to the contrary notwithstanding, the
exclusive recourse of Acquiror with respect to Claims brought after the
Effective Time arising out of the transactions contemplated by this Agreement
shall be the Escrow Indemnity Funds. On or before the Closing Date, Acquiror,
the Company and the Agent shall execute and deliver an escrow agreement
substantially in the form attached hereto as Exhibit 8.3 (the "Escrow
Agreement"). Any Claims of Acquiror for indemnification to be satisfied out of
the Escrow Indemnity Funds shall be made in accordance with the terms of the
Escrow Agreement (it being hereby understood that for purposes of determining
the number of shares of Acquiror Stock necessary to satisfy such Claim, the
Market Price of the Acquiror Stock calculated in accordance with the terms of
the Escrow Agreement shall be used). At the Effective Time, a certificate
registered in the name of Kent P. Dauten, as Agent, representing the Escrow
Indemnity Funds shall be withheld from the Merger Consideration hereunder and
shall be deposited with the Escrow Agent. In accordance with the terms of the
Escrow Agreement, each Stockholder shall be entitled to receive all ordinary
cash dividends paid in respect of his or her Proportionate Share of Acquiror
Stock that would otherwise be registered in his or her name but for such shares
being a part of the Escrow Indemnity Funds and to vote and to give consents,
waivers and ratifications in respect of his or her Proportionate Share of
Acquiror Stock which is part of the Escrow Indemnity Funds. In connection with
any such vote or consent, the Agent and Acquiror, at Acquiror's expense, shall
cause to be delivered to such Stockholder such information (including, without
limitation, any proxy statement and cards). The Agent shall vote the shares of
Acquiror Stock forming part of the Escrow Indemnity Funds in accordance with the
directions of the Stockholders. In order to take such vote, the Agent shall
tabulate the votes it receives from the Stockholders and inform Acquiror in
writing of the aggregate percent of all votes received for, against and in
abstention with respect to each matter voted upon. Acquiror shall then convert
such percent to number based on the
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then-existing Escrow Indemnity Funds, rounded in each case down to the nearest
whole number.
(c) In the event there are no Unresolved Claims (as defined in the Escrow
Agreement), as soon as reasonably practicable and in any event not later than
the fifth day after the expiration of the Escrow Indemnity Period, or the next
business day thereafter if such fifth day is not a business day, the Escrow
Indemnity Funds then remaining shall be distributed to the Stockholders (or
their nominee or transferee, as set forth in the Transmittal Documents in
respect of the Exchange Merger Consideration) entitled thereto in accordance
with their Proportionate Share (provided that cash in lieu of fractional shares
will be distributed in accordance with Section 2.1(d) hereof). In the event one
or more Unresolved Claims with respect to the Escrow Indemnity Funds, if any,
shall exist upon the expiration of the Escrow Indemnity Period, shares of
Acquiror Stock, rounded to the nearest whole share, having a Market Price equal
to the sum of (i) the aggregate amount of such Unresolved Claims and (ii) the
amount reasonably estimated by Acquiror to cover the fees, expense and other
costs (including reasonable counsel fees and expenses) which will be required to
resolve such Unresolved Claims shall be retained as part of the Escrow Indemnity
Funds and the balance thereof, if any, shall be distributed to the Persons
entitled thereto. Upon the resolution of all such Claims and the payment of all
such fees, expenses and costs out of the Escrow Indemnity Funds, the balance of
the shares of Acquiror Stock, if any, shall be distributed to the Persons
entitled thereto. Acquiror agrees to pursue with reasonable diligence the
resolution of any Unresolved Claims existing after the expiration of the Escrow
Indemnity Period (but the failure to so pursue such resolution shall not affect
Acquiror's ability to recover its Losses and Expenses from the Escrow Indemnity
Funds, except to the extent such failure prejudices the Agent's ability to
defend against such Unresolved Claims).
Section 8.4. Notice of Claims. If Acquiror believes that it has suffered
or incurred any Loss and Expense, it shall notify the Agent promptly in writing,
and in any event within the applicable time period specified in Section 8.1,
describing such Loss and Expense, all with reasonable particularity and
containing a reference to the provisions of this Agreement in respect of which
such Loss and Expense shall have occurred. If any Legal Action is instituted by
a third party with respect to which Acquiror intends to claim any liability or
expense as Loss and Expense under this Article, Acquiror shall promptly notify
the Agent of such Legal Action, but the failure to so notify the Agent shall not
affect Acquiror's ability to recover its Losses and Expenses from the Escrow
Indemnity Funds under this Article, except to the extent such failure to notify
prejudices the Agent's ability to defend against such Claim. With respect to
Losses and Expenses for which recovery could be made under any insurance
policies held prior to the Closing by the Company or any Company Subsidiary or
pursuant to indemnification obligations of a third party in favor of the Company
or any Company Subsidiary under any Acquisition Agreements, Acquiror undertakes
to use commercially reasonable efforts to pursue in good faith recovery under
such insurance policies or from such third-party indemnitors prior to Acquiror's
recovery from the Escrow Indemnity Funds in respect of a Claim for
indemnification with respect to such matters under this Agreement;
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provided, however, that Acquiror shall be entitled to indemnification hereunder
for any costs, fees and expenses incurred by Acquiror in pursuing recovery under
such insurance policies or from such third-party indemnitors; and provided,
further, that any representation, warranty, covenant or agreement which is the
subject of a claim for insurance or for third-party indemnification which is
asserted prior to the expiration of the Escrow Indemnity Period shall survive
(together with Acquiror's right to indemnification in the immediately preceding
proviso) for purposes of a Claim hereunder with respect thereto until the final
resolution thereof. Acquiror agrees that, subject to the provisos in the
immediately preceding sentence, amounts actually received by Acquiror under the
insurance policies or from the third-party indemnitors described in the
preceding sentence shall not constitute Losses and Expenses for which Acquiror
is entitled to indemnification hereunder.
Section 8.5. Defense of Third Party Claims. The Agent shall have the right
to conduct and control, through counsel of his own choosing, reasonably
acceptable to Acquiror, any third party Legal Action or other Claim (unless the
amount claimed under such Legal Action or other Claim exceeds the Escrow
Indemnity Funds, in which case Acquiror shall retain the right to control such
Legal Action or other Claim), but Acquiror may, at its election, participate in
the defense thereof at its sole cost and expense; provided, however, that if the
Agent shall fail to defend any such Legal Action or other Claim, then Acquiror
may defend, through counsel of its own choosing, such Legal Action or other
Claim, and (so long as it gives the Stockholders at least fifteen (15) days'
notice of the terms of the proposed settlement thereof and permits the
Stockholders to then undertake the defense thereof, except as set forth above)
settle such Legal Action or other Claim, and to recover out of the Escrow
Indemnity Funds the amount of such settlement or of any judgment and the costs
and expenses of such defense. The Agent shall not compromise or settle any such
Legal Action or other Claim without the prior written consent of Acquiror. All
reasonable costs and expenses defending any such third party Legal Action or
other Claim, including the amount of any settlement or of any judgment, shall be
paid out of the Escrow Indemnity Funds.
Section 8.6. Company Indebtedness Calculation. Five business days prior to
the Closing Date, the Company shall prepare and deliver to Acquiror a schedule
showing the Company's best estimate of its Indebtedness as of the Effective Time
(the "Company Indebtedness Calculation"). If Acquiror disagrees with such
estimate, Representatives of the Company and Acquiror shall meet to discuss such
estimate, and the Company Indebtedness Calculation shall be revised, to the
extent agreed, to reflect such discussions. In addition, at the Closing, the
Company shall deliver to Acquiror a letter from First Source Financial LLP
certifying to Acquiror the entire unpaid balance (principal and interest) of the
Company Subsidiaries' Indebtedness to First Source Financial LLP, together with
all fees, expenses and other amounts (including so-called "breakage" amounts)
due in connection with the prepayment in full of such Indebtedness and the
termination of the commitments with respect thereto at the Closing, such that
the payment thereof at that time would terminate that Indebtedness. To the
extent any amounts in such letter shall not have previously been reflected in
the Company Indebtedness Calculation, the Company Indebtedness Calculation shall
be revised to include
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such amounts.
Section 8.7. Exclusive Remedy. Except as otherwise provided in this
Article, the indemnification provided in this Article shall be the sole and
exclusive post-Closing remedy available to Acquiror against the Stockholders for
any Claim under this Agreement.
Section 8.8. Determination of Loss and Expense. Any amounts paid to
Acquiror under Section 8.2 shall be treated as an adjustment to the Exchange
Merger Consideration. Any Loss and Expense that the Stockholders are required to
indemnify Acquiror against pursuant to Section 8.2 shall be adjusted to take
into account the present value of any Tax and insurance benefits realized or
reasonably expected to be realized by Acquiror as a result of incurring such
Loss and Expense (present value being determined using a discount rate equal to
7% per annum), taking into account the relevant effective Tax rates applicable
to Acquiror and the Tax attributes of Acquiror.
ARTICLE 9.
GENERAL PROVISIONS
Section 9.1. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered or transmitted, and shall be effective upon
receipt, if delivered personally, mailed by registered or certified mail
(postage prepaid, return receipt requested) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
changes of address) or sent by electronic transmission to the telecopier number
specified below:
(a) If to Acquiror or Acquiror Merger Subsidiary:
Iron Mountain Incorporated
745 Atlantic Avenue, 10th Floor
Boston, MA 02110
Attention: Chief Executive Officer
Telecopier No.: (617) 357-9031
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Attention: William J. Curry, Esq.
Telecopier No.: (617) 338-2880
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(b) If to the Company or the Agent:
Kent P. Dauten
Keystone Capital, Inc.
520 Lake Cook Road, Suite 450
Deerfield, IL 60015
Telecopier No.: (847) 236-9529
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Attention: Edward T. Swan
Telecopier No.: (312) 861-2200
Section 9.2. Headings. The headings contained in this Agreement are for
purposes of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 9.3. Severability. If any term or 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. Notwithstanding the foregoing, in the event
of any such determination the effect of which is to Affect Materially and
Adversely either party, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by Applicable Law in an acceptable
manner to the end that the Transactions are fulfilled and consummated to the
maximum extent possible.
Section 9.4. Entire Agreement. This Agreement (together with the
Confidentiality Agreements, the Disclosure Schedule, the Acquiror Disclosure
Schedule and the other Collateral Documents delivered in connection herewith)
constitutes the entire
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agreement of the Parties and supersedes all prior agreements and undertakings,
both written and oral (other than the Confidentiality Agreements), between the
Parties, or any of them, with respect to the subject matter hereof.
Section 9.5. Assignment. This Agreement shall not be assigned by operation
of law or otherwise and any purported assignment shall be null and void,
provided that Acquiror may cause a wholly owned Subsidiary of Acquiror to be
substituted for Acquiror Merger Subsidiary as the party to the Merger and may,
in addition, assign the other rights, but not its obligations, including,
without limitation, its obligation to pay the Merger Consideration, under this
Agreement to such Subsidiary.
Section 9.6. Parties in Interest. This Agreement shall be binding upon and
inure solely to the benefit of each Party, and nothing in this Agreement,
express or implied, is intended to or shall confer upon any Person any right,
benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Section 9.7. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by, and construed in accordance
with, the applicable laws of the United States of America and the laws of The
Commonwealth of Massachusetts applicable to contracts made and performed in such
State and, in any event, 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, except to the extent that the provisions of the DGCL
apply to the Merger. Anything in this Agreement to the contrary notwithstanding,
including without limitation the provisions of Article 8, in the event of any
dispute between the parties which results in a Legal Action, the prevailing
party shall be entitled to receive from the non-prevailing party reimbursement
for reasonable legal fees and expenses incurred by such prevailing party in such
Legal Action (it being understood that the Escrow Indemnity Funds shall be the
sole source of funds used to reimburse the legal fees and expenses of Acquiror
if Acquiror is the prevailing party).
Section 9.8. Enforcement of the Agreement. Each Party recognizes and
agrees that each other Party's remedy at law for any breach of the provisions of
this Agreement would be inadequate and agrees that, subject to the exclusivity
of the indemnification remedy after Closing as provided in Section 8.7, for
breach of such provisions, 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 Applicable 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 a Party from pursuing any other remedies available to such Party
as provided in this Agreement for any breach or threatened breach hereof or
failure to take or refrain from any action as required hereunder to consummate
the Merger and carry out the Transactions.
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Section 9.9. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different Parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
Section 9.10. Mutual Drafting. This Agreement is the result of the joint
efforts of Acquiror and the Company, and each provision hereof has been subject
to the mutual consultation, negotiation and agreement of the parties and there
shall be no construction against any Party based on any presumption of that
Party's involvement in the drafting thereof.
ARTICLE 10.
DEFINITIONS
As used herein, unless the context otherwise requires, the following terms
(or any variant in the form thereof) have the following respective meanings.
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 herein shall have such meanings
when used in the Disclosure Schedule, the Acquiror Disclosure Schedule and each
Collateral Document, 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.
Acquiror shall have the meaning given to it in the Preamble.
Acquiror Disclosure Schedule shall mean the disclosure schedule dated as of
the date of this Agreement delivered by Acquiror to the Company.
Acquiror Merger Subsidiary shall have the meaning given to it in the
Preamble.
Acquiror SEC Reports shall have the meaning given to it in Section 4.3(a).
Acquiror Stock shall have the meaning given to it in the Preamble.
Acquisition Agreement shall mean each stock purchase agreement, merger
agreement, asset purchase agreement or similar acquisition agreement pursuant to
which the stock or assets of the Company Subsidiaries were acquired from third
parties by the Company or the Company Subsidiaries, respectively.
Adverse, Adversely, when used alone or in conjunction with other terms
(including
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without limitation "Affect," "Change" and "Effect") shall mean, with respect to
the Company or Acquiror, as the case may be, any Event which could reasonably be
expected to (a) adversely affect the validity or enforceability of this
Agreement or any Collateral Document or the likelihood of consummation of the
Merger, (b) adversely affect in any material respect the business, operations,
management, properties or the condition, (financial or other), or results of
operation (including without limitation, earnings before interest, taxes,
depreciation and amortization) of the Company and its Subsidiaries, taken as a
whole, or Acquiror and its Subsidiaries, taken as a whole, as the case may be
(it being understood that a reduction in the market value of Acquiror Stock
shall not, in and of itself, constitute or be deemed to reflect an Adverse
Change), (c) impair the Company's or Acquiror's, as the case may be, ability to
fulfill its obligations under the terms of this Agreement or any Collateral
Document, or (d) adversely affect in any material respect the aggregate rights
and remedies of Acquiror under this Agreement or any Collateral Document.
Affiliate, Affiliated shall mean, with respect to any Person, (a) any other
Person at the time directly or indirectly controlling, controlled by or under
direct or indirect common control with such Person, (b) any other Person of
which such Person at the time owns, or has the right to acquire, directly or
indirectly, ten percent (10%) or more of any class of the capital stock or
beneficial interest, (c) any other Person which at the time owns, or has the
right to acquire, directly or indirectly, ten percent (10%) or more of any class
of the capital stock or beneficial interest of such Person, (d) any executive
officer or director of such Person, (e) with respect to any partnership, joint
venture or similar Entity, any general partner thereof, and (f) when used with
respect to an individual, shall include any member of such individual=s
immediate family or a family trust.
Agent shall have the meaning given to it in Section 8.2.
Agreement shall mean this Agreement as originally in effect, including
unless the context otherwise specifically requires, all schedules and exhibits
hereto, as the same may from time to time be supplemented, amended, modified or
restated in the manner herein or therein provided.
Applicable Law shall mean any Law of any Authority, whether domestic or
foreign, including without limitation the DGCL, all federal and state securities
laws, the Code, ERISA and Environmental Laws, to or by which a Person or it or
any of its business or operations is subject or any of its property or assets is
bound.
Authority shall mean any governmental or quasi-governmental authority,
whether administrative, executive, judicial, legislative 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, authority, 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.
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Benefit Arrangement shall mean any material benefit arrangement that is not
a Plan, including (i) any employment or consulting agreement, (ii) any
arrangement providing for insurance coverage or workers= compensation benefits,
(iii) any incentive bonus or deferred bonus arrangement, (iv) any arrangement
providing termination allowance, severance pay, salary continuation for
disability, or other leave of absence, supplemental unemployment benefits, lay-
off, reduction in force or similar benefits, (v) any stock option or equity
compensation plan, (vi) any deferred compensation plan, (vii) any compensation
policy or practice, (viii) any educational assistance arrangements or policies
and (ix) any change of control arrangements or policies.
Cash Amount shall mean the product of (i) the difference between (a) the
Total Consideration less (b) the Company Indebtedness Calculation, and (ii) 40%.
Cash Merger Consideration shall mean the Class A Cash Merger Consideration
and/or the Class B Cash Merger Consideration, as the context requires.
Certificate shall have the meaning given to it in Section 2.1(a).
Claims shall mean any and all debts, liabilities, obligations, losses,
damages, deficiencies, assessments and penalties, 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.
Class A Cash Amount shall mean that portion of the Cash Amount attributable
to the Class A Company Stock as determined in accordance with the attached Class
A/Class B Calculation Schedule.
Class A Cash Conversion Number shall mean the quotient obtained by dividing
(i) the Class A Cash Amount by (ii) the number of shares of Class A Company
Stock issued and outstanding immediately prior to the Merger (except shares
subject to Section 2.1(b)).
Class A Cash Merger Consideration shall have the meaning given to it in
Section 2.1(a).
Class A Common Stock Amount shall mean that portion of the Common Stock
Amount attributable to the Class A Company Stock as determined in accordance
with that attached Class A/Class B Calculation Schedule.
Class A Company Stock shall have the meaning given to it in Section 2.1(a).
Class A Merger Consideration shall mean the Class A Stock Merger
Consideration and
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the Class A Cash Merger Consideration.
Class A Stock Conversion Number shall mean the quotient obtained by
dividing (i) the Class A Common Stock Amount by (ii) the number of shares of
Class A Company Stock issued and outstanding immediately prior to the Merger
(except shares subject to Section 2.1(b)).
Class A Stock Merger Consideration shall have the meaning given to it in
Section 2.1(a).
Class B Cash Amount shall mean that portion of the Cash Amount attributable
to the Class B Company Stock as determined in accordance with that attached
Class A/Class B Calculation Schedule.
Class B Cash Conversion Number shall mean the quotient obtained by dividing
(i) the Class B Cash Amount by (ii) the number of shares of Class B Company
Stock issued and outstanding immediately prior to the Merger (except shares
subject to Section 2.1(b)).
Class B Cash Merger Consideration shall have the meaning given to it in
Section 2.1(a).
Class B Common Stock Amount shall mean that portion of the Common Stock
Amount attributable to the Class B Company Stock as determined in accordance
with that attached Class A/Class B Calculation Schedule.
Class B Company Stock shall have the meaning given to it in Section 2.1(a).
Class B Merger Consideration shall mean the Class B Stock Merger
Consideration and the Class B Cash Merger Consideration.
Class B Stock Conversion Number shall mean the quotient obtained by
dividing (i) the Class B Common Stock Amount by (ii) the number of shares of
Class B Company Stock issued and outstanding immediately prior to the Merger
(except shares subject to Section 2.1(b)).
Class B Stock Merger Consideration shall have the meaning given to it in
Section 2.1(a).
Closing shall have the meaning given to it in Section 1.3.
Closing Certificate shall mean any certificate delivered by the Company to
Acquiror pursuant to Article 6.
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Closing Date shall have the meaning given to it in Section 1.3.
COBRA shall mean the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended, as set forth in Section 4980B of the Code and Part 6 of Title
I of ERISA.
Code shall have the meaning given to it in the Preamble.
Collateral Document shall mean any agreement, instrument, certificate,
opinion or schedule by a Party or a Stockholder pursuant to this Agreement.
Common Stock Amount shall mean the quotient obtained by dividing (a) the
product of (i) the difference of the (A) the Total Consideration less (B) the
Company Indebtedness Calculation and (ii) 60% by (b) the Determination Price.
Company shall have the meaning given to it in the Preamble.
Company Indebtedness Calculation shall have the meaning given to it in
Section 8.6.
the Company's knowledge (including the terms "known to the Company" and "to
the knowledge of the Company") means the knowledge, information or belief of
either of Kent P. Dauten or Scott L. Gwilliam; and that each such Person, after
reasonable investigation (which shall include, without limitation, inquiries of
Gary Severseike and the general manager of each site but, due to the Parties'
desire and need for secrecy, shall not include inquiries of any other employee),
shall have reason to believe and shall believe that the subject representation
or warranty is true and accurate as stated.
Company Stock shall mean the Class A Company Stock and the Class B Company
Stock collectively.
Company Subsidiary shall mean any Subsidiary of the Company.
Confidentiality Agreements shall have the meaning given to it in Section
5.1(a).
Contract, Contractual Obligation shall mean any term, condition, provision,
representation, warranty, agreement, covenant, undertaking, commitment,
indemnity or other obligation which is outstanding or existing under any
instrument, contract, lease or other contractual undertaking to which the
obligee is a party or by which it or any of its business is subject or property
or assets is bound.
control (including the terms "controlled," "controlled by" and "under
common control with") means the possession, directly or indirectly or as trustee
or executor, of the power to direct or cause the direction of the management or
policies of a Person, or the disposition of such Person's assets or properties,
whether through the ownership of stock, equity or other ownership, by contract,
arrangement or understanding, or as trustee or executor, by contract
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or credit arrangement or otherwise.
Convertible Securities shall mean any evidences of indebtedness, shares of
capital stock (other than common stock) or other securities directly or
indirectly convertible into or exchangeable for Shares or other shares of
capital stock of the Company or any Company Subsidiary, whether or not the right
to convert or exchange thereunder is immediately exercisable or is conditioned
upon the passage of time, the occurrence or non-occurrence or existence or non-
existence of some other Event, or both.
Determination Price shall mean $31.11.
DGCL shall have the meaning given to it in the Preamble.
Disclosure Schedule shall mean the disclosure schedule dated as of the date
of this Agreement delivered by the Company to Acquiror.
Dissenting Shares shall have the meaning given to it in Section 2.4(a).
Distribution shall mean, with respect to the Company or any of its
Subsidiaries: (a) the declaration or payment of any dividend (except dividends
payable in Company Stock) on or in respect of any shares of any class of capital
stock of the Company or of any Company Subsidiary owned by a Person other than
the Company or a Company Subsidiary, (b) the purchase, redemption or other
retirement of any shares of any class of capital stock of the Company or of any
Company Subsidiary owned by a Person other than the Company or of any Company
Subsidiary, and (c) any other distribution on or in respect of any shares of any
class of capital stock of the Company owned by a Person other than the Company.
Effective Time shall have the meaning given to it in Section 1.4.
Employment Arrangement shall mean, with respect to any Person, any
employment, consulting, retainer, severance or similar contract, agreement,
plan, arrangement or policy (exclusive of any which is terminable within thirty
(30) days without liability, penalty or payment of any kind by such Person or
any Affiliate (other than any such liability, penalty or payment of general
application to all such Person's employees)), providing for severance,
termination payments, insurance coverage (including any self-insured
arrangements), workers compensation, disability benefits, life, health, medical,
dental or hospitalization benefits, supplemental unemployment benefits, vacation
or sick leave benefits, pension or retirement benefits or for deferred
compensation, profit-sharing, bonuses, stock options, stock purchase or
appreciation rights or other forms of incentive compensation or post-retirement
insurance, compensation or benefits, or any collective bargaining or other labor
agreement, whether or not any of the foregoing is subject to the provisions of
ERISA.
Encumber shall mean to suffer, accept, agree to or permit the imposition of
any Lien.
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Enforceability Exceptions shall have the meaning set forth in Section
3.1(b).
Entity shall mean any corporation, firm, unincorporated organization,
association, partnership, limited liability company, trust (inter vivos or
testamentary), 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.
Environmental Law shall mean any Law relating to or otherwise imposing
liability or standards of conduct concerning pollution or protection of the
environment or occupational health and safety, including without limitation Laws
relating to emissions, discharges, releases or threatened releases of Hazardous
Materials or other pollutants, contaminants, chemicals, noises, odors or
industrial, toxic or hazardous substances, materials or wastes, whether as
matter or energy, into the environment (including, without limitation, ambient
air, surface water, ground water, land surface or subsurface strata) or
otherwise relating to the manufacture, processing, generation, distribution,
use, treatment, storage, disposal, cleanup, transport or handling of pollutants,
contaminants, chemicals or industrial, toxic or hazardous substances, materials
or wastes.
Environmental Permit shall mean any Governmental Authorization required by
or pursuant to any Environmental Law.
ERISA shall mean the Employee Retirement Income Security Act of 1974, and
the rules and regulations 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.
ERISA Affiliate shall mean any Person that is or has ever been treated as a
single employer with the Company or any Company Subsidiary under Sections
414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA.
Escrow Agreement shall have the meaning given to it in Section 8.3(b).
Escrow Indemnity Funds shall mean shares of Acquiror Stock in an amount
equal to the quotient obtained by dividing (a) Three Million Five Hundred
Thousand Dollars ($3,500,000) by (b) the Determination Price.
Escrow Indemnity Period shall have the meaning given to it in Section 8.1.
Event shall mean the occurrence or existence of any act, action, activity,
circumstance, condition, event, fact, failure to act, omission, incident or
practice, or any set or combination of any of the foregoing.
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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.
Exchange Agent shall have the meaning given to it in Section 2.2(a).
Exchange Fund shall have the meaning given to it in Section 2.2(a).
Exchange Merger Consideration shall have the meaning given to it in Section
2.1(a).
Expenses shall have the meaning set forth in Section 7.5(a).
Financial Statements shall have the meaning given to it in Section 3.2(a).
GAAP shall mean generally accepted accounting principles as in effect from
time to time in the United States of America.
Governmental Authorizations shall mean all approvals, concessions,
consents, franchises, licenses, permits, plans, registrations and other
authorizations of all Authorities.
Governmental Filings shall mean all filings, including franchise and
similar Tax filings, and the payment of all fees, assessments, interest and
penalties associated with such filings, with all Authorities.
Guaranty or Guaranteed shall mean any agreement, undertaking or arrangement
by which the Company or any Company Subsidiary guarantees, endorses or otherwise
becomes or is liable, directly or indirectly, contingently or otherwise, upon
any indebtedness of any other Person including without limitation the payment of
amounts drawn down by beneficiaries of letters of credit (other than by
endorsements of negotiable instruments for deposit or collection in the ordinary
course of business). The amount of the obligor's obligation under any Guaranty
shall be deemed to be the outstanding amount (or maximum permitted amount, if
larger) of the indebtedness directly or indirectly guaranteed thereby (subject
to any limitation set forth therein).
Hazardous Materials shall mean any substance (in whatever state of matter):
(a) the presence of which requires investigation or remediation under any
Environmental Law; (b) that is defined as a "hazardous waste", "hazardous
material" or "hazardous substance" under any Environmental Law; (c) that is
toxic, explosive, corrosive, pollutive, contaminating, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous and is regulated by any
Authority; (d) that contains or consists of petroleum or petroleum products,
PCBs, asbestos, or urea formaldehyde foam insulation.
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<PAGE>
Houston Earnout shall mean the so-called "earnout" payment to be paid to
the former sole stockholder of C.N.S. Records Management, Inc. on March 31, 1998
pursuant to the terms of the Acquisition Agreement relating to HIMSCORP of
Houston, Inc.
HSR Act shall mean the Hart-Scott-Rodino Antitrust Improvement Act of 1976,
and the rules and regulations 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.
Indebtedness shall mean, with respect to the Company and its Subsidiaries,
the sum of (a) all obligations, contingent or otherwise, which in accordance
with GAAP should be classified upon the Company's consolidated balance sheet as
liabilities in respect of borrowed money, notes or similar instruments,
obligations under leases which should be capitalized on the consolidated balance
sheet of the Company or the deferred purchase price of property, and all
guarantees, endorsements and other contingent obligations in respect of
Indebtedness of others (it being understood that obligations of the Company and
its Subsidiaries in respect of trade payables, payroll and benefits and other
similar liabilities incurred in the ordinary course of business and not
otherwise included in the definition of Indebtedness shall not be included in
the definition of Indebtedness), (b) the aggregate full amount of all contingent
payments or "earnouts" the Company or a Company Subsidiary may be required to
pay under the Acquisition Agreements and (c) accrued interest to the Closing
Date in respect of Indebtedness and all fees, expenses and other amounts
(including so-called "breakage" amounts) due in connection with the prepayment
in full of such Indebtedness which will be prepaid at Closing.
Indebtedness Schedule shall mean the schedule of Indebtedness to be
prepared by the Company and attached hereto pursuant to Section 2.5 hereof.
Intangible Assets shall mean all assets and property lacking physical
properties the evidence of ownership of which must customarily be maintained by
independent registration, documentation, certification, recordation or other
means.
Investment Agreement shall have the meaning given to it in Section 5.3(a).
Law shall mean any (a) administrative, judicial, legislative or other
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
any Authority, domestic or foreign; (b) the common law, or other legal or quasi-
legal precedent; or (c) arbitrator's, mediator's or referee's award, decision,
finding or recommendation; including, in each such case or instance, any
interpretation, directive, guideline or request, whether or not having the force
of law including, in all cases, without
57
<PAGE>
limitation any particular section, part or provision thereof.
Lease shall mean any lease of property, whether real, personal or mixed,
and all amendments thereto.
Legal Action shall mean any litigation or legal or other actions,
arbitrations, counterclaims, proceedings, requests for material information by
or pursuant to the order of any Authority, or suits, at law or in arbitration,
equity or admiralty commenced by any Person, whether or not purported to be
brought on behalf of a party hereto affecting such party or any of such party's
business, property or assets.
Lien shall mean any of the following: mortgage; lien (statutory or other);
preference, priority or other security agreement, arrangement or interest;
hypothecation, pledge or other deposit arrangement; assignment; charge; levy;
executory seizure; attachment; garnishment; encumbrance (including any easement,
exception, variance, reservation or limitation, right of way, zoning
restriction, building or use restriction, and the like); conditional sale, title
retention or other similar agreement, arrangement, device or restriction;
preemptive or similar right; any financing lease involving substantially the
same economic effect as any of the foregoing; the filing of any financing
statement under the Uniform Commercial Code or comparable law of any
jurisdiction; restriction on sale, transfer, assignment, disposition or other
alienation; or any option, equity, claim or right of or obligation to, any other
Person, of whatever kind and character.
Loss and Expense shall have the meaning given to it in Section 8.2.
Market Price shall have the meaning given to such term in the Escrow
Agreement.
Material or materiality for the purposes of this Agreement, shall, unless
specifically stated to the contrary, be determined without regard to the fact
that various provisions of this Agreement set forth specific dollar amounts.
Material Agreement or Material Commitment shall mean, with respect to the
Company and its Subsidiaries, any Contractual Obligation (a) which (i) involves
the purchase, sale or lease of goods or materials or performance of services
aggregating more than Thirty-five Thousand Dollars ($35,000), (ii) extends for
more than three (3) months, or (iii) is not terminable on thirty (30) days or
less notice without penalty or other payment, (b) which involves indebtedness
for money borrowed in excess of One Hundred Fifty Thousand Dollars ($150,000) or
(c) which is or otherwise constitutes a written agency, dealer, license,
distributorship, sales representative or similar written agreement.
Merger shall have the meaning given to it in the Preamble.
Merger Consideration shall mean the Class A Merger Consideration and the
Class B
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Merger Consideration.
Multiemployer Plan shall mean a "multiemployer plan" within the meaning of
Section 4001(a)(3) of ERISA.
Net Class A Shares and Net Class B Shares shall have the respective
meanings given to such terms in Section 2.2(a).
Noncompetition and Nonsolicitation Agreement shall have the meaning given
to it in Section 5.3(a).
Option Securities shall mean all rights, options and warrants, and calls or
commitments evidencing the right, to subscribe for, purchase or otherwise
acquire shares of capital stock of the Company or any Company Subsidiary or
Convertible Securities, whether or not the right to subscribe for, purchase or
otherwise acquire is immediately exercisable or is conditioned upon the passage
of time, the occurrence or non-occurrence or the existence or non-existence of
some other Event.
Organic Document shall mean the Company's Certificate of Incorporation, its
by-laws and all stockholder agreements, voting trusts and similar arrangements
applicable to any of its capital stock, each as in effect from time to time.
Other Transaction shall mean a transaction or series of related
transactions (other than the Merger) resulting in (a) any change in control of
the Company, (b) any merger or consolidation of the Company or any of its
Subsidiaries, regardless of whether the Company or such Subsidiary is the
surviving Entity, (c) any tender offer or exchange offer for, or any acquisition
of, any securities of the Company or any of its Subsidiaries, (d) any sale or
other disposition of assets of the Company or any of its Subsidiaries not
otherwise permitted under Sections 3.16 or 5.12 hereof, or (e) so long as this
Agreement remains in effect, any issue or sale, or any agreement to issue or
sell, any capital stock, Convertible Securities or Option Securities of the
Company (other than the issuance of shares in accordance with the terms of
Option Securities outstanding on the date hereof).
Party shall mean a signatory to this Agreement.
PBGC shall mean the Pension Benefit Guaranty Corporation and any Entity
succeeding to any or all of its functions under ERISA.
Permitted Liens shall mean any of the following Liens: (i) building and
zoning ordinances and by-laws of any applicable Authority applicable to the
Property; (ii) taxes assessed or to be assessed on the Property for the then
current year to the extent the same are not yet due or payable; and (iii)
rights, easements and restrictions of record, provided the same do not
materially interfere with the current occupancy and use of the Property by the
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<PAGE>
Company.
Person shall mean any natural individual or any Entity.
Plan shall mean, with respect to the Company or any of its Subsidiaries and
at a particular time, any employee benefit plan as defined in Section 3(3) of
ERISA.
Principal Stockholder shall mean Kent P. Dauten.
Private Authorizations shall mean all approvals, concessions, consents,
franchises, licenses, permits, and other authorizations of all Persons (other
than Authorities) including without limitation those with respect to patents,
trademarks, service marks, trade names, copyrights, computer software programs,
technology and know-how, but not including those with respect to Leases.
Proportionate Share shall have the meaning given to such term in the Escrow
Agreement.
Registration Rights Agreement shall have the meaning given to it in Section
5.3(b).
Representatives of a Party shall mean the officers, directors, employees,
accountants, counsel, financial advisors, consultants and other representatives
of such Party.
SEC shall mean the Securities and Exchange Commission of the United States
or any successor Authority.
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.
Shares shall have the meaning given to it in Section 2.1(a).
Special Meeting shall have the meaning given to it in Section 1.2(a).
Stockholder Agreement shall mean that certain Stockholder Agreement of even
date herewith between the Principal Stockholder and Acquiror, as the same may
from time to time be supplemented, amended, modified or restated in the manner
therein provided.
Stockholders shall mean the Principal Stockholder and all other Persons
entitled to Merger Consideration (or who would be entitled thereto but for their
dissent from the Merger) pursuant to Sections 2.1(a).
Stock Merger Consideration shall mean the Class A Stock Merger
Consideration
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and/or the Class B Stock Merger Consideration, as the context requires.
Subsidiary shall mean, with respect to a Person, any Entity a majority of
the capital stock ordinarily entitled to vote for the election of directors of
which, or if no such voting stock is outstanding, a majority of the equity
interests of which, is owned directly or indirectly, legally or beneficially, by
such Person or any other Person controlled by such Person.
Surviving Corporation shall have the meaning given to it in Section 1.1.
Tax (and "Taxable", which shall mean subject to Tax), shall mean, with
respect to the Company or any of its Subsidiaries, (a) all taxes (domestic or
foreign), including without limitation any income (net, gross or other including
recapture of any tax items such as investment tax credits), alternative or add-
on minimum tax, gross income, gross receipts, gains, sales, use, leasing, lease,
user, ad valorem, transfer, recording, franchise, profits, property (real or
personal, tangible or intangible), fuel, license, withholding on amounts paid to
or by the Company or any of its Subsidiaries, payroll, employment, unemployment,
social security, excise, severance, stamp, occupation, premium, environmental or
windfall profit tax, custom, duty or other tax, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest, levies,
assessments, charges, penalties, addition to tax or additional amount imposed by
any Taxing Authority, (b) any joint or several liability of the Company or any
of its Subsidiaries with any other Person for the payment of any amounts of the
type described in (a), and (c) any liability of the Company or any of its
Subsidiaries for the payment of any amounts of the type described in (a) as a
result of any express or implied obligation to indemnify any other Person.
Tax Claim shall mean any Claim which relates to Taxes, including without
limitation the representations and warranties set forth in Section 3.11.
Tax Return or Returns shall mean all returns, consolidated or otherwise
(including without limitation information returns), required to be filed with
any Authority with respect to Taxes.
Taxing Authority shall mean any Authority responsible for the imposition of
any Tax.
Termination Date shall mean December 1, 1997 or such other date as the
Parties may, from time to time, mutually agree; provided, however, that in the
event that any waiting periods or requests under the HSR Act have not expired or
been satisfied by December 1, 1997, the Termination Date shall mean December 31,
1997.
Total Consideration shall mean Ninety Million Dollars ($90,000,000).
Transactions shall mean the other transactions contemplated by this
Agreement or the
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Merger or by any Collateral Document executed or required to be executed in
connection herewith or therewith.
Transmittal Documents shall have the meaning given to it in Section 2.2(b).
[Signatures appear on following page.]
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IN WITNESS WHEREOF, Acquiror, Acquiror Merger Subsidiary and the Company
have caused this Agreement to be executed as of the date first written above by
their respective officers thereunto duly authorized.
IRON MOUNTAIN INCORPORATED
By: /s/ Richard Reese
Name: Richard Reese
Title: Chairman of the Board
and Chief Executive Officer
IM-3 ACQUISITION CORP.
By: /s/ Richard Reese
Name: Richard Reese
Title: President
HIMSCORP, INC.
By: /s/ Kent P. Dauten
Name: Kent P. Dauten
Title: President
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EXHIBIT B
INVESTMENT AGREEMENT
--------------------
This INVESTMENT AGREEMENT (this "Agreement"), dated the ____ day of
____________, 1997, by and between Iron Mountain Incorporated, a Delaware
corporation ("Acquiror"), and ________________ ("Stockholder").
RECITALS
A. Acquiror, Acquiror Merger Subsidiary and HIMSCORP, Inc. (the "Company")
are parties to that certain Agreement and Plan of Merger dated as of September
17, 1997 (the "Merger Agreement"), pursuant to which the Company will merge with
and into Acquiror Merger Subsidiary, and the issued and outstanding capital
stock of the Company will be converted into cash and shares of the common stock,
$.01 par value, of Acquiror.
B. It is a condition to the obligation of Acquiror to consummate the
transactions contemplated by the Merger Agreement that each stockholder of the
Company execute and deliver this Agreement to Acquiror.
C. Stockholder is a holder of shares of common stock of the Company and has
reviewed the terms of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement, the parties hereto, intending to be legally bound, agree as follows:
1. Definitions. Capitalized terms used in this Agreement without definition
shall have the meanings assigned to such terms in the Merger Agreement.
<PAGE>
2. Investment Representations; Tax Agreement. Stockholder hereby represents
and warrants that:
2.1 The shares of Acquiror Common Stock to be acquired by Stockholder
pursuant to the Merger Agreement (the "Shares") are being acquired solely for
the account of such Stockholder for purposes of investment and not with a view
to the sale, transfer or other distribution thereof, as those terms are used in
the Securities Act and the rules and regulations promulgated thereunder.
2.2 Stockholder understands that (i) the Shares have not been and will
not be registered under the Securities Act by reason of their issuance by
Acquiror in a transaction exempt from the registration requirements of the
Securities Act, which exemption depends, among other things, on the bona fide
nature of Stockholder's investment intent as expressed herein, and (ii) the
Shares must be held indefinitely by Stockholder unless a subsequent disposition
thereof is registered under the Securities Act or exempt from registration.
2.3 Stockholder is able to bear the economic risk of an investment in
the Shares for an indefinite period of time, as the Shares will not be
registered under the securities laws and cannot be transferred in the absence of
registration or an exemption under the securities laws, and, either alone or
together with his or her financial adviser, Stockholder is financially
sophisticated and has such knowledge and experience in financial and business
matters as to be capable of evaluating the merits and risks of the proposed
investment and therefore has the capacity to protect his, her or its own
interests in connection with the acquisition of the Shares. Stockholder
acknowledges that (i) Acquiror has provided the Stockholder with the Acquiror
SEC Reports, (ii) Stockholder has been afforded an opportunity to ask such
questions of officers of Acquiror relating to Acquiror and Acquiror Common Stock
as he, she or it determines is necessary to understand the risks of acquiring
the Shares, and (iii) Stockholder has asked any and all questions of interest to
such Stockholder in connection with the transactions contemplated by the Merger
Agreement, all of which have been answered to Stockholder's satisfaction.
2.4 Stockholder agrees not to offer, sell, assign, exchange, transfer,
encumber, pledge, distribute or otherwise dispose of the Shares except in full
compliance with all of the
<PAGE>
applicable provisions of the Securities Act and applicable state securities
laws, and any attempt by Stockholder to do so except in such full compliance
shall be treated as ineffective for all purposes. The certificates representing
the Shares issued to Stockholder shall bear the following legend substantially
as set forth.
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "ACT") OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE TRANSFERRED UNTIL (1) A REGISTRATION STATEMENT UNDER THE ACT AND
REGISTRATION OR QUALIFICATION FOR SALE UNDER APPROPRIATE STATE SECURITIES
LAWS SHALL BECOME EFFECTIVE WITH RESPECT THERETO, OR (2) THE ISSUER SHALL
HAVE RECEIVED AN OPINION OF COUNSEL TO THE ISSUER OR OTHER COUNSEL
SATISFACTORY TO THE ISSUER, SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO
THE ISSUER, TO THE EFFECT THAT REGISTRATION OR QUALIFICATION UNDER THE ACT
AND APPROPRIATE STATE SECURITIES LAWS IS NOT REQUIRED IN CONNECTION WITH
SUCH PROPOSED TRANSFER.
2.5 Stockholder understands that Acquiror may issue appropriate stock
transfer instructions to the transfer agent for shares of Acquiror Common Stock
to the effect that such shares may be sold publicly only in compliance with Rule
144 under the Securities Act or in a transaction otherwise exempt from the
registration requirements of the Securities Act.
2.6 Stockholder acknowledges that neither the Company nor Acquiror
would have entered into the Merger Agreement unless the transactions
contemplated thereby qualified as a tax-free reorganization for federal income
tax purposes. In this regard, Stockholder agrees that for a period of one year
from the Effective Time (or at such earlier time as Acquiror may, in its
reasonable discretion, determine that a Transfer (as defined below) otherwise
prohibited by the terms of this sentence may be effected in a manner that does
not adversely affect the tax-free nature of the Merger under Section 368 of the
Code, provided that, in exercising its reasonable discretion, Acquiror shall
take into account, among other considerations, the issuance of final Treasury
Regulations governing the continuity of interest requirement under Section 368
of the Code and shall cooperate with Stockholder in filing any elections or
providing any information on a tax return as may be
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<PAGE>
required by such regulations in order to permit Stockholder to engage in the
proposed Transfer), except as otherwise allowed by the Board of Directors of
Acquiror in its sole discretion, Stockholder will not Transfer, and Acquiror
shall not be required to register the Transfer of, the number of shares, rounded
upward to the nearest whole share (the "Subject Shares"), of Acquiror Stock
equal to the product of (1) the quotient obtained by dividing (x) the "Lock-up
Value" by (y) the product of (A) the Common Stock Amount and (B) the lesser of
the Closing Price and the Determination Price multiplied by (2) the Stock Merger
Consideration such Person is entitled to receive in connection with the Merger
(including any portion of such Stock Merger Consideration paid to the Escrow
Agent to fund the Escrow Indemnity Funds). The "Lock-up Value" shall mean forty-
five percent (45%) of the sum of (x) the product of the Common Stock Amount and
the lesser of the Closing Price and the Determination Price plus (y) the Cash
Amount. The "Closing Price" shall mean the closing price per share of Acquiror
Stock for the trading day immediately prior to the Effective Time. The closing
price for such trading day shall be the last quoted sale price or, if not so
quoted, the average of the low bid and high asked prices on the Nasdaq National
Market System. The term "Transfer" means any indirect or direct transfer, offer
to sell, sale, assignment, grant of an option to acquire, pledge, or other
disposition. The certificates representing the Subject Shares may bear the
following legend substantially as set forth:
THE SHARES REPRESENTED HEREBY MAY NOT BE SOLD, ASSIGNED, EXCHANGED,
TRANSFERRED, ENCUMBERED, PLEDGED, DISTRIBUTED, APPOINTED OR OTHERWISE
DISPOSED OF, AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE EFFECT TO ANY
ATTEMPTED SALE, ASSIGNMENT, EXCHANGE, TRANSFER, LIEN, PLEDGE, DISTRIBUTION,
APPOINTMENT OR OTHER DISPOSITION BEFORE ____________, 1998. THE ISSUER
AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED WITH
THE TRANSFER AGENT) AFTER THE DATE SPECIFIED ABOVE.
3. Agreement with Respect to Certain Matters. Stockholder hereby:
3.1 Waives and agrees not to assert any claims or rights Stockholder
may have against any officer or director of the Company
-4-
<PAGE>
relating to or arising out of actions or omissions occurring at or prior to the
Effective Time, including, without limitation, in respect of approval or
adoption of the Merger Agreement or the consummation of the Merger or the other
transactions contemplated thereby.
3.2 Authorizes Acquiror and the Exchange Agent to pay to the Escrow
Agent a pro rata portion of the Merger Consideration otherwise payable to
Stockholder for purposes of funding the Escrow Indemnity Funds described in
Section 8.2 of the Merger Agreement. Such payment to the Escrow Agent shall be
made from the stock portion of the Merger Consideration payable to Stockholder.
3.3 Authorizes Acquiror and Acquiror Merger Subsidiary to pay to the
Exchange Agent any amounts payable by Acquiror and Acquiror Merger Subsidiary
under the Merger Agreement after the Closing Date to the former stockholders of
the Company.
3.4 Appoints Kent P. Dauten, with full power of substitution, to act
as Stockholder's agent and attorney-in-fact to take all actions that may be
called for by the Escrow Agreement with respect to providing direction to the
Escrow Agent thereunder as to disposition of payments, claims, requests for
payment and similar matters.
3.5 Represents and warrants that the original certificates
representing Company Shares have been placed in the custody of the Exchange
Agent for purposes of surrender of such certificates and the shares of Company
Stock represented thereby at the Effective Time, in exchange for the Merger
Consideration, and Stockholder hereby authorizes the Exchange Agent to take all
such actions as may be necessary or appropriate to effectuate the surrender of
such shares in exchange for such Merger Consideration.
4. Rights Under Merger Agreement. Acquiror hereby acknowledges and agrees
that it will perform its obligations, and will take all action necessary to
cause the Surviving Corporation to perform its obligations, under Sections 2.2,
2.5, 5.5, 5.11, 8.7 and 9.8 of the Merger Agreement, which Sections and (except
as set forth in the following sentence) only such Sections shall,
notwithstanding the provisions of Section 9.6 of the Merger Agreement, from and
after the Effective Time, inure to the benefit of the Stockholders. In addition,
Acquiror hereby acknowledges and agrees that the representations and warranties
in Article 4 of the Merger Agreement shall, notwithstanding the provisions of
Section
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<PAGE>
9.6 of the Merger Agreement, survive and inure to the benefit of the
Stockholders for a period of one year after the Effective Time. Notwithstanding
anything to the contrary in the two preceding sentences, Stockholder hereby
agrees that Acquiror shall have no liability or obligation under this Section or
the Sections or Article of the Merger Agreement referred to in the two preceding
sentences, unless the action or proceeding to enforce this Section or such
Sections or Article of the Merger Agreement is conducted by or on behalf (and
with the written consent) of those Stockholders who held a majority of the
shares of all classes of Company Stock outstanding immediately prior to the
Effective Time. Acquiror hereby further acknowledges and agrees that,
notwithstanding anything in the Merger Agreement, including without limitation
the provisions of Sections 8.2 and 8.3(a), to the contrary, the exclusive
recourse of Acquiror with respect to Claims brought after the Effective Time
arising out of the transactions contemplated by the Merger Agreement shall be
the Escrow Indemnity Funds.
IN WITNESS WHEREOF, the undersigned has hereunto set his or her hand as of
the date first above written.
Stockholder:
Print Name
Address:
Telephone:
--------------------------------
Soc.Sec./Taxpayer I.D. #:
------------------
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<PAGE>
Accepted:
IRON MOUNTAIN INCORPORATED
By:
----------------------------
Title:
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<PAGE>
EXHIBIT C
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of September 17, 1997, among Iron Mountain
Incorporated, a Delaware corporation ("Acquiror"), and Kent P. Dauten, an
individual having a business address at Keystone Capital, Inc., 520 Lake Cook
Road, Suite 450, Deerfield, IL 60015 (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
I.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.
<PAGE>
<P"GE>
"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
II.1 Representations and Warranties of the Principal Stockholder.
The Principal Stockholder represents and warrants to Acquiror as follows:
(1) 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, warrants or other rights to acquire any
additional
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shares of capital stock of the Company or any security exercisable or
exchangeable for, or convertible into, shares of capital stock of the Company.
(2) 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).
(3) 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.
(4) 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.
(5) 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,
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without limitation, potential 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.
(6) 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 16 2/3% 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.
II.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
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intentionally misleading to the Principal Stockholder.
ARTICLE III
COVENANTS
III.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.
III.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.
III.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.
III.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
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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, 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.
III.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).
III.6 Confidentiality, Non-Competition and Non-Solicitation.
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<PAGE>
(1) 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
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.
(2) 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).
(3) 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
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<PAGE>
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 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.
(4) 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.
(5) 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.
(6) 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
IV.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
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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 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.
IV.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.
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ARTICLE V
MISCELLANEOUS
V.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 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.
V.2 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
V.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
745 Atlantic Avenue, 10th Floor
Boston, Massachusetts 02111
Telephone: (617) 357-4455
Telecopy: (617) 350-7881
Attention: Chairman of the Board
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Telephone: (617) 338-2800
Telecopy: (617) 338-2880
Attention: William J. Curry, Esq.
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If to the Principal Stockholder, to:
Kent P. Dauten
Keystone Capital, Inc.
520 Lake Cook Road, Suite 450
Deerfield, IL 60015
Telephone: (847) 236-5350
Telecopy: (847) 236-9529
with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Telephone: (312) 861-2000
Telecopy: (312) 861-2200
Attention: Edward T. Swan, Esq.
V.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.
V.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.
V.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.
V.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.
V.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
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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.
V.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 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.
V.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.
V.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/ Richard Reese
----------------------------------
Name: Richard Reese
Title: Chairman of the Board
and Chief Executive Officer
/s/ Kent P. Dauten
----------------------------------
Kent P. Dauten
<PAGE>
EXHIBIT D
ESCROW AGREEMENT
----------------
This ESCROW AGREEMENT (this "Agreement") is entered into as of the 31st day
of October, 1997, by and among Iron Mountain Incorporated, a Delaware
corporation ("Acquiror"), HIMSCORP, Inc., a Delaware corporation (the
"Company"), Kent P. Dauten, an individual with a business address at Keystone
Capital, Inc., 520 Lake Cook Road, Suite 450, Deerfield, IL 60015 (in his
capacity as agent for the Stockholders, the "Agent"), as agent for the
stockholders of the Company (the "Stockholders"), and State Street Bank and
Trust Company, as Escrow Agent (the "Escrow Agent").
W I T N E S S E T H:
-------------------
WHEREAS, Acquiror and the Company entered into that certain Agreement and
Plan of Merger dated as of September 17, 1997 (the "Merger Agreement"), an
executed copy of which has been provided to the Escrow Agent, pursuant to which
the Company will merge with and into a wholly owned subsidiary of Acquiror (the
"Merger"), and pursuant to which 112,504 shares of Common Stock, par value $.01
per share of Acquiror ("Acquiror Stock") were withheld from the consideration
payable to the Stockholders and were allocated to indemnify Acquiror for certain
matters relating to the Merger Agreement, all as is more fully set forth in the
Merger Agreement;
WHEREAS, this Agreement is being entered into pursuant to Article 8 of the
Merger Agreement; and
WHEREAS, in accordance with and pursuant to Article 8 of the Merger
Agreement, the Agent has been appointed as agent and attorney-in-fact, with full
power of substitution, to take all actions called for by Article 8 of the Merger
Agreement, including, without limitation, the execution of this Agreement;
NOW, THEREFORE, in consideration of the foregoing premises and the
agreements set forth below, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
ARTICLE 1
ESCROW INDEMNITY FUNDS
----------------------
1.1 Delivery. Upon consummation of the Merger, Acquiror will deliver to
the Escrow Agent a certificate registered in the name of Kent P. Dauten, as
Agent, representing 112,504 shares of Acquiror Stock (the "Escrow Indemnity
Funds").
1.2 Receipt. The Escrow Agent agrees to hold and disburse the Escrow
Indemnity
<PAGE>
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Funds (together with interest earned thereon) solely in accordance with the
terms and conditions of this Agreement and for the uses and purposes stated
herein. The Escrow Agent shall, upon receipt of the Escrow Indemnity Funds,
issue written acknowledgment to Acquiror and the Agent of receipt thereof.
1.3 Rights of Stockholders.
(a) In the case any distribution of capital or stock dividend shall
be made on or in respect of Acquiror Stock or any money or property shall be
distributed with respect to Acquiror Stock pursuant to a recapitalization or
reclassification of the capital of Acquiror, or pursuant to a reorganization or
liquidation or dissolution of Acquiror, any such stock, money or property to be
distributed with respect to the Escrow Indemnity Funds shall be delivered to the
Escrow Agent to be held by it as part of the Escrow Indemnity Funds. Acquiror
shall forthwith deliver to the Escrow Agent an additional certificate registered
in the name of Kent P. Dauten, as Agent, representing any such additional
Acquiror Stock or such money and the Escrow Agent shall hold such additional
Acquiror Stock or money pursuant to the terms of this Agreement.
(b) Each Stockholder shall be entitled to receive all ordinary cash
dividends paid in respect of his or her Proportionate Share (as defined below)
of Acquiror Stock that would otherwise be registered in his or her name but for
such shares being a part of the Escrow Indemnity Funds and to vote and to give
consents, waivers and ratifications in respect of his or her Proportionate Share
of Acquiror Stock which is part of the Escrow Indemnity Funds. The Agent shall
pay over to each Stockholder, forthwith upon receipt, his or her Proportionate
Share of all ordinary cash dividends paid on the Escrow Indemnity Funds, and, at
the cost of Acquiror, shall execute and deliver to each Stockholder such proxies
or other documents in writing as may be necessary to enable each Stockholder to
exercise the foregoing rights. In connection with any vote or consent by the
Stockholders with respect to shares of Acquiror Stock which are part of the
Escrow Indemnity Funds, the Agent shall vote the shares of Acquiror Stock
forming part of the Escrow Indemnity Funds in accordance with the directions of
the Stockholders to the Agent. In order to take such vote, the Agent shall
tabulate the votes it receives from the Stockholders and inform Acquiror in
writing of the aggregate percent of all votes received for, against and in
abstention with respect to each matter voted upon. Acquiror shall then convert
such percent to a number based on the then-existing Escrow Indemnity Funds,
rounded in each case down to the nearest whole number. The term "Proportionate
Share", as to each Stockholder, shall mean such Stockholder's proportionate
share of the total number of shares of Aquiror Stock to be issued in connection
with the Merger.
ARTICLE 2
PROCEDURES FOR DISBURSEMENT OF ESCROW INDEMNITY FUNDS
-----------------------------------------------------
<PAGE>
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2.1 Purpose. The Escrow Indemnity Funds shall be held by the Escrow Agent
to secure the indemnification obligations to Acquiror under the Merger Agreement
and shall be held and released in accordance with the provisions of this
Agreement. The Escrow Agent agrees to hold, disburse and invest the Escrow
Indemnity Funds solely in accordance with the terms and conditions of this
Agreement and for the uses and purposes stated herein.
2.2 Disbursement.
(a) If at any time after the Closing Date and prior to the termination of
this Agreement, the Escrow Agent receives written instructions in accordance
with the terms of Section 2.4 hereof from Acquiror to make a payment to
Acquiror, then the Escrow Agent shall make payments out of the Escrow Indemnity
Funds to Acquiror, in accordance with such instructions and with Section 2.4,
unless the Escrow Indemnity Funds shall be insufficient to comply with such
instructions and with Section 2.4, in which case the Escrow Agent shall pay the
entire Escrow Indemnity Funds to Acquiror and shall advise Acquiror and the
Agent in writing of the amount of such payment. The number of shares of the
Escrow Indemnity Funds to be delivered to Acquiror in connection with each
payment hereunder shall be reasonably calculated by Acquiror and shall be equal
to the quotient obtained by dividing (i) the Claimed Amount (as defined in
Section 2.4) by (ii) the average closing price per share of Acquiror Stock for
the period of 20 trading days ending three trading days prior to the date of
such payment (the "Market Price"). The closing price for each such trading day
shall be the last quoted sale price or, if not so quoted, the average of the low
bid and high asked prices on the Nasdaq National Market System.
(b) The Escrow Agent may make any payments out of the Escrow Indemnity
Funds that may at the time be permitted to be made under the provisions of
Section 2.4 below, and shall make all such payments that at the time are
required to be made under such provisions or are jointly requested in writing by
Acquiror and the Agent. Any payment which would result in the disbursement of a
fractional share of Acquiror Stock shall be rounded to the nearest whole share.
In the event that any payment is made pursuant to this Agreement, Acquiror shall
deliver to the Escrow Agent a new certificate registered in the name of Kent P.
Dauten, as Agent, representing the Escrow Indemnity Funds less such shares
disbursed in the payment and all previous payments.
(c) In the event there are no Unresolved Claims (as hereinafter defined),
as soon as reasonably practicable and in any event not later than the fifth day
after the expiration of the Escrow Indemnity Period, or the next business day
thereafter if such fifth day is not a business day, Acquiror shall deliver or
cause to be delivered to the Escrow Agent cash in lieu of fractional shares
calculated in accordance with the second to last sentence of this paragraph (c)
and separate certificates registered in each Stockholder's name (or, in the
event of a transfer of ownership of Acquiror Stock which is not registered in
the transfer records of the Company, in the name of a transferee who has
presented documents reasonably required to evidence and effect such transfer and
evidence that any applicable stock transfer taxes have been paid), representing
such Stockholder's Proportionate Share of the Escrow Indemnity Funds, less such
Stockholder's Proportionate Share of all portions thereof, if any,
<PAGE>
-4-
(i) paid to Acquiror pursuant to subparagraphs (a) and (b) above, and
(ii) which are the subject of Unresolved Claims (as hereinafter
defined).
The Escrow Agent shall retain the portion of the Escrow Indemnity Funds which
relates to all Unresolved Claims until resolution of such Unresolved Claims in
accordance with the terms hereof. In the event one or more Unresolved Claims
with respect to the Escrow Indemnity Funds, if any, shall exist upon the
expiration of the Escrow Indemnity Period, shares of Acquiror Stock with a
Market Price measured as of the date of such expiration (such number to be
reasonably determined by Acquiror, with the Escrow Agent having no
responsibility for determining the accuracy thereof) equal to the sum of (i) the
aggregate amount of such Unresolved Claims and (ii) the amount reasonably
estimated by Acquiror to cover the fees, expense and other costs (including
reasonable counsel fees and expenses) which will be required to resolve such
Unresolved Claims shall be retained as part of the Escrow Indemnity Funds and
the balance thereof, if any, shall be distributed to the Stockholders entitled
thereto. Upon the resolution of all such Unresolved Claims and the payment of
all such fees, expenses and costs out of the Escrow Indemnity Funds, the balance
of the Acquiror Stock, if any, shall be distributed to the Stockholders entitled
thereto in accordance with the terms hereof. In lieu of issuing fractional
shares pursuant to this paragraph (c), each Stockholder shall receive the
highest whole number of shares of Acquiror Stock to which he or she is entitled
plus cash equal to the fraction of a share of Acquiror Stock to which the
Stockholder would otherwise be entitled multiplied by the Market Price of the
Acquiror Stock determined by Acquiror as of the date three days prior to the
distribution of such shares. Promptly after such receipt, the Escrow Agent will
deliver such certificates together with any cash in lieu of fractional shares to
each respective Stockholder (or transferee) at the addresses to be supplied by
Acquiror in accordance with Acquiror's written instructions. Acquiror shall make
all calculations relating to shares of Acquiror Stock or cash in lieu of
fractional shares contemplated in the second preceding sentence, and the Escrow
Agent shall not be responsible for determining the accuracy of any such
calculation.
2.3 Unresolved Claims. The term "Unresolved Claims" shall mean any claim
or request made pursuant to the Merger Agreement against the Escrow Indemnity
Funds in accordance with the Merger Agreement and Section 2.4 below, until such
time as such claim or request has been paid in full or otherwise fully settled,
compromised or adjusted by Acquiror and the Agent or by a final order of a court
of competent jurisdiction resolving such claim, from which no appeal is or can
be taken.
2.4 Notice of Request; Dispute Notice. If at any time during the Escrow
Indemnity Period, Acquiror believes that it is entitled pursuant to the terms
hereof or Article 8 of the Merger Agreement to any portion of the Escrow
Indemnity Funds, then Acquiror shall furnish to the Escrow Agent (with a
simultaneous copy to the Agent), a notice (the "Indemnity Notice of Request")
setting forth the cash amount (the "Claimed Amount") to which Acquiror believes
it is entitled and the reasons for such belief. If the Escrow Agent does not
receive, within fifteen (15) business days after receipt of the Indemnity Notice
of Request, a notice from the Agent (the "Indemnity Dispute Notice") with a
simultaneous copy to Acquiror that a dispute (the "Indemnity
<PAGE>
-5-
Dispute") exists relating to Acquiror's right to that portion of the Escrow
Indemnity Funds claimed in the Indemnity Notice of Request, the Escrow Agent
shall, immediately after such fifteen business day period, release to Acquiror
the certificate then held by the Escrow Agent pursuant to the terms of this
Agreement in exchange for a new certificate registered in the name of Kent P.
Dauten, as Agent, representing a number of shares of Acquiror Stock equal to the
quotient obtained by dividing (a) the difference between, if positive, the
Market Price of the shares of Acquiror Stock represented by the certificate
being released calculated as of the date three trading days prior to such
exchange and the Claimed Amount by (b) such Market Price, and the Escrow Agent
shall hold such replacement certificate for Acquiror Stock or money pursuant to
the terms of this Agreement. The Escrow Agent shall not be responsible for
determining the accuracy of the calculation of the number of shares of Acquiror
Stock to be represented by any such replacement certificate.
In the event the Escrow Agent receives an Indemnity Dispute Notice that an
Indemnity Dispute exists, the Escrow Agent shall retain custody of that portion
of the Escrow Indemnity Funds which relates to the Unresolved Claim until the
first to occur of the following events:
(a) Receipt by the Escrow Agent of a notice ("Indemnity Settlement
Notice") signed by Acquiror and the Agent that the Indemnity Dispute has
been resolved, said notice to contain instructions to Escrow Agent
regarding delivery of that portion of the Escrow Indemnity Funds which
relates to the Unresolved Claim; or
(b) Receipt by Escrow Agent of a final order of a court of competent
jurisdiction (the "Indemnity Award") resolving the Indemnity Dispute and
directing the disposition of that portion of the Escrow Indemnity Funds
which relates to the Unresolved Claim; provided, however, that if such
court order does not direct disposition of a specific number of shares of
Acquiror Stock, the portion of the Escrow Indemnity Funds to be paid shall
be reasonably determined by Acquiror (with the Escrow Agent having no
responsibility for determining the accuracy thereof) by reference to the
Market Price measured as of the date of such court order;
after which Escrow Agent shall promptly pay that portion of the Escrow Indemnity
Funds which relates to the Unresolved Claim in accordance with the Indemnity
Settlement Notice or the Indemnity Award. Notwithstanding anything herein to the
contrary, if more than one Unresolved Claim exists at the expiration of the
Escrow Indemnity Period, upon the subsequent resolution of any such Unresolved
Claim in favor of the Stockholders, the number of shares of Acquiror Stock that
will continue to be retained as part of the Escrow Indemnity Funds to cover the
aggregate amount of remaining Unresolved Claims (and the fees, expenses and
other costs related thereto) will be reasonably calculated by Acquiror (with the
Escrow Agent having no responsibility for determining the accuracy thereof)
based on the Market Price measured as of the date of resolution of the
Unresolved Claim in favor of the Stockholders.
2.5 Maximum Distributions. Notwithstanding anything in this Agreement to
the contrary, in no event shall Acquiror be entitled to received shares of
Acquiror Stock having an aggregate value of greater than $2,500,000 (calculated,
in each case, based on the shares of
<PAGE>
-6-
Acquiror Stock being disbursed multiplied by the Market Price employed in
connection with such disbursement). At such time as the aggregate amount paid to
Acquiror (calculated in accordance with the foregoing sentence) equals
$2,500,000, any remaining Escrow Indemnity Funds shall be disbursed to the
Stockholders and this Agreement shall terminate, all in accordance with the
other provisions of this Agreement.
ARTICLE 3
ESCROW AGENT
------------
3.1 Appointment. Acquiror, the Company and the Agent hereby appoint the
Escrow Agent to serve hereunder and the Escrow Agent hereby accepts such
appointment and agrees to perform all duties which are expressly set forth in
this Agreement.
3.2 Compensation. The Escrow Agent shall be entitled to compensation for
legal fees incurred in connection with the preparation of this Agreement and for
its services hereunder in accordance with the attached fee schedule, which may
be subject to change hereafter on an annual basis, upon notice to Acquiror and
the Agent. Compensation of the Escrow Agent and all reasonable expenses of the
Escrow Agent (including all reasonable attorneys' fees of those attorneys not
regularly in its employ) in connection with the performance of its services
hereunder shall be borne one half by Acquiror and one half by the Agent. The
Escrow Agent shall be entitled to reimbursement on demand for all reasonable
out-of-pocket expenses incurred in connection with the administration of this
Agreement or the escrow created hereby which are in excess of its compensation
for normal services hereunder, including without limitation, payment of any
reasonable legal fees and expenses reasonably incurred by the Escrow Agent in
connection with the resolution of any claim in any party hereunder.
3.3 Indemnification. Notwithstanding anything to the contrary in the
foregoing, Acquiror and the Agent will at their joint and several expense hold
the Escrow Agent, its directors, officers and employees harmless and indemnify
the Escrow Agent in connection with any and all third party claims, losses,
judgments or costs, regardless of their nature, arising out of or because of
this Agreement, except such as may arise because of the Escrow Agent's gross
negligence or willful misconduct or breach of this Agreement (including, without
limitation, Article 2 hereof). Any such expense in the preceding sentence as
between Acquiror and the Agent shall be borne jointly and severally by Acquiror
and the Agent. Acquiror and the Agent also exonerate said Escrow Agent from any
liability in connection with this Agreement or with the administration of its
duties hereunder, including but not limited to reasonable legal fees and other
reasonable costs and expenses of defending or preparing to defend against any
claim or liability except such as may arise because of the Escrow Agent's gross
negligence or willful misconduct in performing its specified duties hereunder or
breach of this Agreement (including, without limitation, Article 2 hereof).
Nothing in this Section 3.3 shall constitute a waiver of any claim which
Acquiror and the Agent may have against the other for contribution arising from
their joint obligations to hold the Escrow Agent harmless hereunder. Anything in
this Agreement to the contrary notwithstanding, in no event shall the Escrow
Agent be liable for special, indirect or consequential loss or damage of any
kind whatsoever (including but not limited to lost profits),
<PAGE>
-7-
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action. The Escrow Agent shall not be
obligated to take any legal or other action hereunder which might in its
judgment involve any expense or liability unless it shall have been furnished
with acceptable indemnification.
3.4 Resignation; Removal. The Escrow Agent may resign at any time upon
giving the parties hereto 30 days' prior written notice. Acquiror and the Agent
may also, at any time, mutually agree in a writing signed by Acquiror and the
Agent to remove the Escrow Agent upon 30 days' prior written notice. In either
event, the successor Escrow Agent shall be such person, firm or corporation as
shall be mutually selected by Acquiror and the Agent. It is understood and
agreed that such resignation or removal shall not be effective until a successor
agrees to act hereunder by signing a copy hereof; provided, however, if no
successor is appointed and acting hereunder within thirty (30) days after such
notice is given, the Escrow Agent may pay and deliver the Escrow Indemnity Funds
into a court of competent jurisdiction.
ARTICLE 4
LIABILITIES OF ESCROW AGENT
---------------------------
4.1 Limitations.
(a) The Escrow Agent shall be liable only to accept, hold and deliver
the Escrow Indemnity Funds in accordance with the provisions of this Agreement
and any amendments hereto or other written instructions executed by Acquiror and
the Agent; provided, however, that the Escrow Agent shall not incur any
liability with respect to (a) any action taken or omitted in good faith and with
due care upon the reasonable advice of its counsel, including in-house counsel,
given with respect to any questions relating to the duties and responsibilities
of the Escrow Agent under this Agreement, or (b) any action taken or omitted in
reliance upon any instrument which the Escrow Agent shall in good faith and with
due care believe to be genuine (including the execution of such instrument, the
identity or authority of any person executing such instrument, its validity and
effectiveness, and the truth and accuracy of any information contained therein),
to have been signed by a proper person or persons and to conform to the
provisions of this Agreement.
(b) The Escrow Agent does not have any interest in the Escrow
Indemnity Funds deposited hereunder but is serving as escrow holder only and
having only possession thereof. The Agent, on behalf of the Stockholders,
covenants and agrees that he will pay or reimburse the Escrow Agent upon request
for any transfer taxes, to the extent that any exist, relating to the Escrow
Indemnity Funds incurred in connection herewith. Any payments or income from the
Escrow Indemnity Funds shall be subject to withholding regulations then in force
with respect to United States taxes. The Agent, on behalf of the Stockholders,
agrees to assume any and all obligations imposed now or hereafter by any
applicable tax law with respect to the payment of Escrow Indemnity Funds under
this Agreement to the Stockholders, and to indemnify and hold the Escrow Agent
harmless from and against any taxes, additions for late payment, interest,
penalties and other expenses, that may be assessed against the Escrow Agent in
any such
<PAGE>
-8-
payment or other activities under this Agreement. Acquiror and the Agent
undertake to instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for withholding and other taxes, assessments or other
governmental charges, certifications and governmental reporting in connection
with its acting as Escrow Agent under this Agreement. The Agent agrees to hold
the Escrow Agent harmless and the Agent agrees to indemnify the Escrow Agent for
any liability on account of taxes, assessments or other governmental charges,
including without limitation the withholding or deduction or the failure to
withhold or deduct the same, and any liability for failure to obtain proper
certifications or to properly report to governmental authorities, to which the
Escrow Agent may be or become subject in connection with any payment to the
Stockholders under this Agreement, including costs and expenses (including
reasonable legal fees and expenses), interest and penalties. The parties hereto
agree that, for tax reporting purposes, all interest or other income earned in
the Escrow Indemnity Funds shall be allocable to the Stockholders.
Acquiror agrees to assume any and all obligations imposed now or hereafter
by any applicable tax law with respect to the payment of Escrow Indemnity Funds
under this Agreement to Acquiror, and to indemnify and hold the Escrow Agent
harmless from and against any taxes, additions for late payment, interest,
penalties and other expenses, that may be assessed against the Escrow Agent in
any such payment or other activities under this Agreement. Acquiror agrees to
hold the Escrow Agent harmless and Acquiror agrees to indemnify the Escrow Agent
for any liability on account of taxes, assessments or other governmental
charges, including without limitation the withholding or deduction or the
failure to withhold or deduct the same, and any liability for failure to obtain
proper certifications or to properly report to governmental authorities, to
which the Escrow Agent may be or become subject in connection with any payment
to Acquiror under this Agreement or which otherwise arises out of this
Agreement, except as provided in the preceding paragraph, including costs and
expenses (including reasonable legal fees and expenses), interest and penalties.
The Escrow Agent shall have no more or less responsibility or liability on
account of any action or omission of any book-entry depository or subescrow
agent employed by the Escrow Agent than any such book-entry depository or
subescrow agent has to the Escrow Agent, except to the extent that such action
or omission of any book-entry depository or subescrow agent was caused by the
Escrow Agent's own gross negligence, bad faith or willful misconduct.
No distributions will be made unless Acquiror and the Agent (on behalf of
the Stockholders) provide the Escrow Agent with an appropriate W-9 form for tax
identification number certification or non-resident alien certification prior to
distribution. This Section 4.1(b) and Section 3.3 hereof shall survive any
termination of this Agreement or the resignation or removal of the Escrow Agent.
4.2 Collateral Agreements. Other than this Agreement, which shall be
controlling in regards to the Escrow Indemnity Funds, the Escrow Agent shall not
be bound in any way by any contract or agreement between other parties hereto,
including the Merger Agreement and the Stockholders' Agreement, whether or not
it has knowledge of any such contract or agreement or of its terms or
conditions.
<PAGE>
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ARTICLE 5
TERMINATION
-----------
This Agreement shall be terminated upon the earliest to occur of (a)
disbursement or release of all of the Escrow Indemnity Funds by the Escrow Agent
as provided in this Agreement, or (b) the written mutual consent signed by each
of the parties hereto. This Agreement shall not be otherwise terminated.
ARTICLE 6
OTHER PROVISIONS
----------------
6.1 Notices. Any notice, demand or request required or permitted to be
given under the provisions of this Agreement shall be in writing and dispatched
by the same means to all of the foregoing on the same day and shall be deemed to
have been duly given and received (i) when delivered if delivered by hand or by
confirmed facsimile transmission or telex and (ii) three business days after
mailing if mailed by reputable courier service or registered or certified mail,
postage prepaid and return receipt requested, to the parties at the following
addresses (or to such other address as any party may request in a notice
delivered in accordance with this Section 6.1 to the other parties hereto,
provided that notices of a change of address shall be effective only upon
receipt thereof):
(a) If to Acquiror:
Iron Mountain Incorporated
745 Atlantic Avenue, 10th Floor
Boston, MA 02111
Telephone: (617) 357-4455
Telecopy: (617) 350-7881
Attention: Chief Executive Officer
With copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
Telephone: (617) 338-2800
Telecopy: (617) 338-2880
Attention: William J. Curry, Esq.
and
If to the Agent:
Kent P. Dauten
<PAGE>
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Keystone Capital, Inc.
520 Lake Cook Road, Suite 450
Deerfield, IL 60015
Telephone: (847) 236-5350
Telecopy: (847) 236-9529
With copies to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Telephone: (312) 861-2000
Telecopy: (312) 861-2200
Attention: Edward T. Swan, Esq.
If to the Escrow Agent:
State Street Bank and Trust Company
Two International Place
Boston, MA 02110
Telephone: (617) 664-5776
Telecopy: (617) 664-5365
Attention: Corporate Trust Department
Iron Mountain Incorporated-Escrow Indemnity Funds
Unless otherwise refused by Acquiror or the Agent in writing, the Escrow Agent
shall assume that the receipt of any notice was received by Acquiror and the
Agent on the same day as received by Escrow Agent.
6.2 Benefit and Assignment. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
6.3 Entire Agreement; Amendment. This Agreement contains all the terms
agreed upon by the parties with respect to the subject matter hereof, except
certain terms and provisions set forth in the Merger Agreement and the
Stockholders' Agreement and except that capitalized terms not otherwise used
herein shall have the meanings set forth in the Merger Agreement. This Agreement
may be amended only by a written instrument signed by the parties against which
enforcement of any waiver, change, modification, extension or discharge is
sought. A waiver of any of the terms and conditions of this Escrow Agreement on
one occasion shall not constitute a waiver of the other terms of this Agreement,
or of such terms and conditions on any other occasion.
6.4 Tax Identification Numbers. Each party hereto, except the Escrow
Agent, shall provide the Escrow Agent with their (and, in the case of the Agent,
each Stockholder's) Tax Identification Number (TIN) as assigned by the Internal
Revenue Service. All interest or other
<PAGE>
-11-
income earned under this Agreement shall be allocated and paid as provided
herein and reported by the recipient to the Internal Revenue Service as having
been so allocated and paid.
6.5 Headings. The headings of the sections and subsections of this
Agreement are for ease of reference only and do not evidence the intentions of
the parties.
6.6 Governing Law. This agreement shall be governed by and construed and
enforced in accordance with the law (other than the law governing conflict of
law questions) of the Commonwealth of Massachusetts.
6.7 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
6.8 Dispute Resolution. It is understood and agreed that should any
dispute arise, including a dispute described in Section 2.4 hereof, with respect
to the delivery, ownership, right of possession, and/or disposition of the
Escrow Indemnity Funds, or should any claim be made upon such Escrow Indemnity
Funds by a third party, the Escrow Agent upon receipt of written notice of such
dispute or claim by the parties hereto or by a third party, is authorized and
directed to retain in its possession without liability to anyone, all or any of
said Escrow Indemnity Funds until such dispute shall have been settled either by
the mutual written agreement of the parties involved or by a final order, decree
or judgment of a Court in the United States of America, the time for perfection
of an appeal of such order, decree or judgment having expired. The Escrow Agent
may, but shall be under no duty whatsoever to, institute or defend any legal
proceedings which relate to the Escrow Indemnity Funds.
6.9 Consent to Jurisdiction and Service. Acquiror and the Agent hereby
absolutely and irrevocably consent and submit to the jurisdiction of the courts
in the Commonwealth of Massachusetts and of any Federal court located in said
Commonwealth in connection with any actions or proceedings brought against
Acquiror and the Agent by the Escrow Agent arising out of or relating to this
Escrow Agreement. In any such action or proceeding, Acquiror and the Agent
hereby absolutely and irrevocably waive personal service of any summons,
complaint, declaration or other process and hereby absolutely and irrevocably
agree that the service thereof may be made by certified or registered first-
class mail directed to Acquiror and the Agent, as the case may be, at their
respective addresses in accordance with Section 6.1 hereof.
6.10 Force Majeure. Neither Acquiror nor the Agent nor the Escrow Agent
shall be responsible for delays or failures in performance resulting from acts
beyond its control. Such acts shall include but not be limited to acts of God,
strikes, lockouts, riots, acts of war, epidemics, governmental regulations
superimposed after the fact, fire, communication line failures, computer
viruses, power failures, earthquakes or other disasters.
6.11 Reproduction of Documents. This Agreement and all documents relating
hereto, including, without limitation, (a) consents, waivers and modifications
which may hereafter be executed, and (b) certificates and other information
previously or hereafter furnished, may be
<PAGE>
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reproduced by any photographic, photostatic, microfilm, optical disk, micro-
card, miniature photographic or other similar process. The parties agree that
any such reproduction shall be admissible in evidence as the original itself in
any judicial or administrative proceeding, whether or not the original is in
existence and whether or not such reproduction was made by a party in the
regular course of business, and that any enlargement, facsimile or further
reproduction of such reproduction shall likewise be admissible in evidence.
[Signatures appear on following page.]
<PAGE>
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their duly authorized partners or officers as of the day and
year first written above.
THE COMPANY:
HIMSCORP, INC.
By: /s/ Scott Gwilliam
-------------------------------
Name: Scott Gwilliam
Title: Vice President
THE AGENT:
/s/ Kent P. Dauten
-------------------------------
Kent P. Dauten, as Agent
ACQUIROR:
IRON MOUNTAIN INCORPORATED
By: /s/ Eugene Doggett
-------------------------------
Name: Eugene Doggett
Title: Executive Vice President
ESCROW AGENT:
STATE STREET BANK AND TRUST COMPANY, as Escrow Agent
By: /s/ Patrick Thebado
-------------------------------
Name: Patrick Thebado
Title: Assistant Vice President
