EXHIBIT 1
IRON MOUNTAIN INCORPORATED
5,000,000 SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
MAY 11, 1999
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY L.L.C.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
as Representatives of the several Underwriters
named in Schedule I attached hereto
c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Iron Mountain Incorporated (the "COMPANY"), a corporation
organized and existing under the laws of Delaware, proposes, subject to the
terms and conditions stated herein, to issue and sell to the several
Underwriters named in Schedule I hereto (the "UNDERWRITERS") an aggregate of
5,000,000 shares (the "FIRM SHARES") of its common stock, par value $.01 per
share (the "COMMON STOCK"), and, for the sole purpose of covering
over-allotments, if any, in connection with the sale of the Firm Shares, at the
option of the Underwriters, up to an additional 750,000 shares (the "ADDITIONAL
SHARES") of Common Stock. The Firm Shares and the Additional Shares are
collectively referred to herein as the "SHARES." The Shares are more fully
described in the Registration Statement referred to below.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement, including a
prospectus, on Form S-3 (No. 333-44185), for the registration of the
Shares and certain other securities described therein that may be
offered from time to time by the Company under the Securities Act of
1933, as amended (the "SECURITIES ACT"). Such registration statement,
including the prospectus, financial statements and schedules, exhibits
and all other documents filed as a part thereof, as amended at the time
of effectiveness of the registration statement, including any
information deemed to be a part thereof as of the time of effectiveness
pursuant to
paragraph (b) of Rule 430A of the rules and regulations of
the Commission under the Securities Act (the "REGULATIONS") or
incorporated by reference therein, is herein called the "Registration
Statement" and the prospectus, in the form first filed with the
Commission pursuant to Rule 424(b) of the Regulations, is herein called
the "Basic Prospectus." The term "Prospectus" means the Basic
Prospectus as supplemented by the prospectus supplement dated the date
hereof (the "PROSPECTUS SUPPLEMENT") specifically relating to the
Shares, in the form first used to confirm sales of the Shares, filed
pursuant to Rule 424 or Rule 430A under the Securities Act. The term
"preliminary prospectus" as used herein means a preliminary prospectus
supplement specifically relating to the Shares, together with the Basic
Prospectus. Any reference herein to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Securities Exchange Act
of 1934, as amended (the "EXCHANGE ACT"), on or before the effective
date of the Registration Statement, the date of such preliminary
prospectus or the date of the Prospectus, as the case may be, and any
reference herein to the terms "amend," "amendment" or "supplement" with
respect to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include (i) the filing
of any document under the Exchange Act after the effective date of the
Registration Statement, the date of such preliminary prospectus or the
date of the Prospectus, as the case may be, which is incorporated
therein by reference and (ii) any such document so filed.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the
Commission, when any document that was or will be incorporated by
reference in the Registration Statement is or was filed under the
Exchange Act, and at the First Closing Date and the Additional Closing
Date, if any (as hereinafter respectively defined), the Registration
Statement and the Prospectus and any amendments thereof and supplements
thereto complied or will comply in all material respects with the
applicable provisions of the Securities Act and the Regulations and the
Exchange Act and the rules and regulations thereunder and did not or
will not contain an untrue statement of a material fact and did not or
will not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein (i) in the case of
the Registration Statement, not misleading and (ii) in the case of the
Prospectus, in light of the circumstances under which they were made,
not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration
Statement for the registration of the Shares or any amendment thereto
or pursuant to Rule 424(b) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, such
preliminary prospectus and any amendments thereof and supplements
thereto complied in all material respects with the applicable
provisions of the Securities Act and the Regulations and the Exchange
Act and the rules and regulations thereunder and did not contain an
untrue statement of a material fact and did not omit to state any
material fact required to be stated therein or necessary in order to
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make the statements therein in light of the circumstances under which
they were made not misleading. The Prospectus and any preliminary
prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the
extent permitted by Regulation S-T. No representation and warranty is
made in this subsection (b), however, with respect to any information
contained in or omitted from the Registration Statement or the
Prospectus or any related preliminary prospectus or any amendment
thereof or supplement thereto in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives as herein stated expressly for
use in connection with the preparation thereof.
(c) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as
set forth in the Registration Statement and the Prospectus, there has
been no material adverse change or any development involving a
prospective material adverse change in the business, prospects,
properties, operations, condition (financial or other) or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business, and since the date of the latest balance sheet presented in
the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company
and its subsidiaries taken as a whole, except for liabilities or
obligations which are reflected in the Registration Statement and the
Prospectus.
(d) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied by the Company. The
Registration Statement has become effective; no stop order suspending
the effectiveness of the Registration Statement is in effect, and no
proceedings for such purpose are pending before or, to the knowledge of
the Company, threatened by the Commission; and no order preventing or
suspending the use of any preliminary prospectus has been issued by the
Commission. Copies of such Registration Statement and amendments
thereto (including documents incorporated by reference therein), the
Basic Prospectus and all preliminary prospectuses contained therein
have been delivered or made available to the Representatives.
(e) The documents incorporated or deemed to be incorporated by
reference in the Prospectus, at the time they were or hereafter are
filed with the Commission, complied and will comply in all material
respects with the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder, and, when read together with
the other information in the Prospectus, at the time the Registration
Statement and any amendments thereto become effective and at the
Closing Date (as hereinafter defined), will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
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(f) The Company and each of its subsidiaries has been duly
incorporated or formed, is validly existing as a corporation or limited
liability company in good standing under the laws of its jurisdiction
of incorporation or formation and has the corporate power and authority
to carry on its business as it is currently being conducted and to own,
lease and operate its properties, and each is duly qualified and is in
good standing as a foreign corporation or limited liability company
authorized to do business in each jurisdiction in which the nature of
its business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified would not
have a material adverse effect (financial or otherwise) on the Company
and its subsidiaries, taken as a whole.
(g) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and are owned directly or indirectly by the Company
(except for 12,789,246 shares representing 49.9% of the outstanding
shares of capital stock of Britannia Data Management Limited ("BDM")),
free and clear of any security interest, claim, lien, encumbrance or
adverse interest of any nature, except for the security interests
granted under the Second Amended and Restated Credit Agreement dated
September 26, 1997 between the Company and The Chase Manhattan Bank, as
Agent, as amended, or with respect to BDM, the security interests
granted to The Governor and Company of the Bank of Scotland.
(h) This Agreement and the transactions contemplated herein
have been duly and validly authorized by the Company, and this
Agreement has been duly and validly executed and delivered by the
Company and is a valid and binding agreement of the Company enforceable
in accordance with its terms except as (i) rights to indemnity and
contribution hereunder may be limited by applicable law, (ii) the
enforceability thereof may be limited by bankruptcy, insolvency,
fraudulent conveyance or similar laws affecting creditors' rights
generally and (iii) rights of acceleration and the availability of
equitable remedies may be limited by equitable principles of general
applicability.
(i) The Shares have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance
with the terms of this Agreement (and to the extent delivered in
physical form, duly countersigned by the Company's Transfer Agent and
Registrar), will be duly and validly issued and outstanding, fully paid
and nonassessable and will not have been issued in violation of or be
subject to any preemptive rights or similar rights to subscribe for or
to purchase securities of the Company. No holder of securities of the
Company has any right which has not been fully waived in writing to
request or require the Company to register the offer or sale of any
securities owned by such holder under the Securities Act in connection
with the public offering contemplated by this Agreement.
(j) The authorized capital stock of the Company, including the
Shares, conforms as to legal matters to the description thereof
contained in the Registration Statement and the Prospectus.
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(k) The Company has caused BDM to enter into that certain
Share Purchase Agreement For Shares In MAP S.A. among BDM, Carrick
Invest and ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, dated as of May 10, 1999 as may be
amended from time to time (the "MEMOGARDE AGREEMENT"), which has been
duly authorized, executed and delivered by BDM and, assuming the due
authorization, execution and delivery by Carrick Invest and ▇▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, is a valid and binding agreement of BDM enforceable in
accordance with its terms. The execution, delivery and performance of
the Memogarde Agreement and compliance by BDM with all the provisions
thereof and the consummation of the transactions contemplated thereby
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws or comparable
organizational documents of BDM or any of its subsidiaries or any
agreement, indenture or other instrument to which it or any of its
subsidiaries is a party or by which it or any of its subsidiaries or
their respective property is bound, or violate or conflict with any
laws, administrative regulations or rulings or court decrees applicable
to BDM, any of its subsidiaries or their respective property.
(l) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or comparable
organizational documents or in default (and no condition exists which,
with notice or lapse of time or both, would constitute a default) in
the performance of any obligation, agreement or condition contained in
any bond, debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the conduct of
the business of the Company and its subsidiaries, taken as a whole, to
which the Company or any of its subsidiaries is a party or by which it
or any of its subsidiaries or their respective property is bound.
(m) The execution, delivery and performance of this Agreement
and compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require
any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under the Securities Act or under the
securities or Blue Sky laws of the various states or jurisdictions of
or outside the United States in connection with the offer and sale of
the Shares), and will not conflict with or constitute a breach of any
of the terms or provisions of, or a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant
to the terms of, the charter or by-laws or comparable organizational
documents of the Company or any of its subsidiaries or any agreement,
indenture or other instrument to which it or any of its subsidiaries is
a party or by which it or any of its subsidiaries or their respective
property is bound, or violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to the Company, any
of its subsidiaries or their respective property.
(n) Except as otherwise set forth in the Prospectus, there are
no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or to which any of their
respective property is subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated.
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(o) Neither the Company nor any of its subsidiaries is
currently in violation of any foreign, federal, state or local law or
regulation relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("ENVIRONMENTAL LAWS"), nor any federal or state law
relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act of 1974, as
amended, or the rules and regulations promulgated thereunder, which in
each case might result in any material adverse change in the business,
prospects, financial condition or results of operations of the Company
and its subsidiaries, taken as a whole.
(p) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("PERMITS"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and
operate its respective properties and to conduct its respective
business, except for such permits which would not result in any
material adverse change in the prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole; the Company and each of its subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits
and no event has occurred which allows, or after notice or lapse of
time would allow, revocation or termination thereof which might result
in any material adverse change in the business, prospects, financial
condition or results of operations of the Company and its subsidiaries,
taken as a whole; and, except as described in the Prospectus, such
permits contain no restrictions that materially interfere with the
business or operations of the Company or any of its subsidiaries as
currently conducted.
(q) In the ordinary course of its business, when the Company
or any of its subsidiaries acquires a fee interest in a parcel of real
property, the Company conducts a review (which is a Phase I Study or a
review of a recent Phase I Study prepared on behalf of the seller or
any predecessor owner of such property), as it relates to such real
property, of the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it attempts to identify and evaluate associated costs
and liabilities, if any (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, any related
constraints on operating activities and any potential liabilities to
third parties). In the ordinary course of its business, when the
Company or any of its subsidiaries enters into a long-term real
property lease, the Company conducts a review (which may or may not
include a Phase I Study), as it relates to such real property, of the
effect of Environmental Laws on the business, operations and properties
of the Company and its subsidiaries, in the course of which it attempts
to identify and evaluate associated costs and liabilities, if any
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, any related constraints on operating
activities and any potential liabilities to third parties). On the
basis of such review, the Company has reasonably concluded that such
associated costs and liabilities would not,
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singly or in the aggregate, have a material adverse effect (financial
or otherwise) on the Company and its subsidiaries, taken as a whole.
(r) Except as otherwise set forth in the Prospectus or such as
are not material to the business, prospects, financial condition or
results of operations of the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries has good and marketable
title, free and clear of all liens, claims, encumbrances and
restrictions except liens for taxes not yet due and payable, to all
property and assets described in the Prospectus as being owned by it.
All leases to which the Company or any of its subsidiaries is a party
are valid and binding and no default by the Company or any of its
subsidiaries, or to the knowledge of the Company or any of its
subsidiaries, by any other party, has occurred or is continuing
thereunder, which might result in any material adverse change in the
business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, and the Company and
its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made or proposed
to be made by the Company or such subsidiary.
(s) The Company and each of its subsidiaries maintains, with
insurers of recognized standing, reasonably adequate insurance against
property and casualty loss, general liability, business interruption
and such other losses and risks, in each case, in such amounts as are
prudent and customary in the business in which they are engaged.
(t) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP are independent public accountants
with respect to the Company within the meaning of the Securities Act.
(u) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and its subsidiaries on the basis
stated in the Registration Statement and the Prospectus at the
respective dates or for the respective periods to which they apply;
such statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, to the Company's knowledge, in all material
respects, accurately presented and prepared on a basis reasonably
consistent with the books and records of the Company.
(v) Neither the Company nor any of its affiliates does
business with the government of Cuba or with any person or affiliate
located in Cuba within the meaning of Section 517.075, Florida Statutes
(Chapter 92-198, Laws of Florida).
(w) The Company has an authorized, issued and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus and all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and
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are fully paid and nonassessable and were not issued in violation
of or subject to any preemptive rights.
(x) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire
any shares of the capital stock of, or other ownership interest in, the
Company or any subsidiary thereof except as otherwise disclosed in the
Prospectus.
(y) The Company has disclosed in the Prospectus, or otherwise
disclosed to the Representatives in writing, any business relationships
or related party transactions of the type that is required to be
disclosed by Item 404 of Regulation S-K of the Commission.
(z) There is (i) no significant unfair labor practice
complaint pending against the Company or any of its subsidiaries or, to
the best knowledge of the Company, threatened against any of them,
before the National Labor Relations Board or any state or local labor
relations board, and no significant grievance or arbitration proceeding
arising out of or under any collective bargaining agreement is pending
against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, and (ii) no
significant strike, labor dispute, slowdown or stoppage pending against
the Company or any of its subsidiaries or, to the best knowledge of the
Company, threatened against it or any of its subsidiaries except for
such actions specified in clause (i) or (ii) above, which, singly or in
the aggregate, could not reasonably be expected to have a material
adverse effect (financial or otherwise) on the Company and its
subsidiaries, taken as a whole.
(aa) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability, (iii) access to assets is permitted only
in accordance with management's general or specific authorization and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(bb) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided.
(cc) The Company and its subsidiaries own or possess, or can
acquire on reasonable terms, all material patents, patent applications,
trademarks, service marks,
8
trade names, licenses, copyrights and proprietary or other confidential
information currently employed by them in connection with their
respective businesses, and neither the Company nor any such subsidiary
has received any notice of infringement of or conflict with asserted
rights of any third party with respect to any of the foregoing which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in any material adverse change in the
business, prospects, financial condition or results of operations of
the Company and its subsidiaries, taken as a whole, except as described
in or contemplated by the Prospectus.
(dd) The Company is not, and upon consummation of the
transactions contemplated by this Agreement will not be, an "investment
company" or a company "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended (the
"INVESTMENT COMPANY ACT"), or be subject to registration under the
Investment Company Act.
(ee) The Company and each of its affiliates has not taken and
will not take, directly or indirectly, any action which is designed to
or which constitutes or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares
and neither the Company nor any of its affiliated purchasers (as
defined in Rule 100 of Regulation M under the Exchange Act) will take
any action prohibited by Regulation M under the Exchange Act.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES. (a) Subject to
the terms and conditions herein set forth and on the basis of the
representations, warranties, covenants and agreements herein contained, the
Company agrees to sell 5,000,000 Firm Shares to the Underwriters, and each
Underwriter agrees, severally, but not jointly, to purchase from the Company the
number of Firm Shares, set forth opposite the name of such Underwriter on
Schedule I hereto, plus any additional number of Firm Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 9 hereof.
Payment of the purchase price for, and delivery of, the Firm
Shares, shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:30 a.m. (New York time) on the third business day
(unless postponed in accordance with this Agreement or, if the Firm Shares are
priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30
p.m., New York time, the fourth business day) following the date of this
Agreement or at such other time or on such other date but not later than ten
business days after such date as shall be mutually agreed in writing between the
Company and Bear, ▇▇▇▇▇▇▇ & Co. Inc. on behalf of the Representatives (the time
and date of such payment and delivery being herein called the "FIRST CLOSING
DATE"). The Company shall deliver or cause to be delivered the Firm Shares in
such denominations and registered in such names as Bear, ▇▇▇▇▇▇▇ & Co. Inc. on
behalf of the Representatives may request in writing at least two full business
days prior to the First Closing Date. Payment shall be made to the Company on
the First Closing Date by certified or official bank check or checks drawn in
federal funds or same day funds payable to the order of the Company or by wire
transfer in same day funds to the Company, against delivery to Bear, ▇▇▇▇▇▇▇ &
Co. Inc. on behalf of Representatives, on behalf of the Underwriters, of the
Firm
9
Shares. The Company will permit the Representatives to examine and package
such certificates for delivery at least one full business day prior to the First
Closing Date. For purposes of this Section 2, the term "business day" shall mean
any day except Saturday, Sunday and any day which shall be a legal holiday or a
day on which banking institutions are authorized or required by law or
government action to close in the State of New York.
(b) In addition, the Company has granted to the Underwriters,
solely for the purpose of covering over-allotments, if any, in the sale of Firm
Shares, an option (the "OPTION") to purchase all or any portion of the
Additional Shares, in pro rata proportion with respect to the Firm Shares sold
by the Company hereunder, exercisable on or before the thirtieth day following
the date of this Agreement, by written notice by Bear, ▇▇▇▇▇▇▇ & Co. Inc. on
behalf of the Representatives to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the Option is being exercised
and the date and time, as reasonably determined by Bear, ▇▇▇▇▇▇▇ & Co. Inc. on
behalf of the Representatives, when the Additional Shares are to be delivered
(such date and time being herein sometimes referred to as the "ADDITIONAL
CLOSING DATE;" the First Closing Date and the Additional Closing Date may be
referred to herein as the "CLOSING DATE"); provided, however, that the
Additional Closing Date shall not be earlier than the First Closing Date or, if
the Additional Closing Date is to occur on a date other than the First Closing
Date, earlier than the third business day after the date on which the Option
shall have been exercised nor later than the eighth business day after the date
on which the Option shall have been exercised (unless such time and date are
postponed in accordance with the provisions of this Agreement). Certificates for
the Additional Shares shall be registered in such name or names and in such
authorized denominations as Bear, ▇▇▇▇▇▇▇ & Co. Inc. on behalf of the
Representatives may request in writing at least two full business days prior to
the Additional Closing Date. The Company will permit the Representatives to
examine and package such certificates for delivery at least one full business
day prior to the Additional Closing Date.
Payment of the purchase price for, and delivery of, the
Additional Shares shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ at 9:30 a.m. (New York time) on the Additional
Closing Date (unless postponed in accordance with this Agreement). Payment for
the Additional Shares shall be made to the Company by certified or official bank
check or checks in federal funds or similar same day funds payable to the order
of the Company or by wire transfer in same day funds to the Company, against
delivery to Bear, ▇▇▇▇▇▇▇ & Co. Inc. on behalf of the Representatives, on behalf
of the Underwriters, of the Additional Shares.
(c) The price to be paid by the Underwriters for both the Firm
Shares and the Additional Shares shall be $26.67 per Share.
3. OFFERING. Upon your authorization of the release of the
Shares, the several Underwriters propose to offer the Shares for sale to the
public initially upon the terms set forth in the Prospectus.
4. AGREEMENTS OF THE COMPANY. The Company agrees with the
Underwriters that:
10
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement setting forth the number
of Shares covered thereby and their terms not otherwise specified in
the Basic Prospectus, the price at which the Shares are to be purchased
by the Underwriters from the Company, and such other information as the
Representatives and the Company deem appropriate in connection with the
offering of the Shares; and the Company will promptly transmit copies
of the Prospectus Supplement to the Commission for filing pursuant to
Rule 424(b) of the Regulations and will furnish to the Representatives
as many copies of the Prospectus (including such Prospectus Supplement)
as they shall reasonably request.
(b) The Company will make no further amendment or supplement
to the Registration Statement or Prospectus, except as permitted
herein; and, if at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act, any event shall have
occurred as a result of which the Prospectus as then amended and
supplemented would, in the judgment of Bear, ▇▇▇▇▇▇▇ & Co. Inc. on
behalf of the Representatives, include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such same
period to amend or supplement the Registration Statement or Prospectus
in order to comply with the Securities Act or the Regulations or to
file under the Exchange Act so as to comply therewith any document
incorporated by reference in the Registration Statement or the
Prospectus or in any amendment thereof or supplement thereto, the
Company will notify the Representatives, afford the Representatives a
reasonable opportunity to comment on any such proposed amendment or
supplement, upon the Representatives' request, prepare and furnish
without charge to each Underwriter and to any dealer in securities as
many copies as the Representatives may from time to time reasonably
request of an amended Prospectus or a supplement to the Prospectus,
which will correct such statement or omission or effect such
compliance, and use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
(c) During the period in which a prospectus is required to be
delivered under the Securities Act or Exchange Act in connection with
sales of the Shares by an underwriter or dealer, the Company will
advise the Representatives promptly (i) of receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or threat of
any proceeding for that purpose; (ii) of any downgrading in the rating
accorded any of the securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) under the Securities Act), or any public announcement that
any such organization has under surveillance or review its rating of
any such securities (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading of such rating) as soon as the Company learns of any such
downgrading or public announcement; (iii) after it receives notice of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any preliminary prospectus or the
Prospectus; or (iv) of any request by the Commission for the amending
or supplementing of the Registration Statement and
11
any preliminary prospectus or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of
any order preventing or suspending the use of any preliminary
prospectus or the Prospectus or suspending any such qualification, the
Company will use its reasonable efforts to obtain its withdrawal.
(d) The Company will furnish the Representatives with such
number of manually signed copies of the Registration Statement,
including all exhibits, amendments and documents incorporated by
reference therein, as reasonably requested by the Representatives and,
during the period in which a prospectus is required to be delivered
under the Securities Act or Exchange Act in connection with sales of
the Shares by an underwriter or dealer, to furnish the Underwriters
copies of any preliminary prospectus and Prospectus, and all amendments
and supplements, in such quantities as the Representatives may from
time to time reasonably request.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Securities Act) to its security holders
and to the Underwriters as soon as practicable, but in any event not
later than 45 days after the end of its fiscal quarter in which the
first anniversary date of the date of the Prospectus occurs, an
earnings statement of the Company and its subsidiaries (which need not
be audited) complying with the provisions of Rule 158 of the Regulation
covering a period of at least twelve consecutive months beginning after
the effective date of the Registration Statement.
(f) Prior to the date hereof, the Company has applied for
listing of these Shares on the New York Stock Exchange and will use its
best efforts to complete that listing, subject only to official notice
of issuance, prior to the First Closing Date.
(g) The Company will not (and will cause its affiliates not
to) take, directly or indirectly, any action which is designed to or
which constitutes or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares
and neither the Company nor any of its affiliated purchasers (as
defined in Rule 100 of Regulation M under the Exchange Act) will take
any action prohibited by Regulation M under the Exchange Act.
(h) The Company will apply the net proceeds of the issue and
sale of the Shares to be sold by the Company as set forth under the
caption "Use of Proceeds" in the Prospectus.
(i) During a period of three years from the date of the
Prospectus, the Company will furnish to Bear, ▇▇▇▇▇▇▇ & Co. Inc. on
behalf of the Underwriters as soon as available a copy of each report
or other publicly available information of the Company mailed to the
security holders of the Company or filed with the Commission and such
other publicly available information concerning the Company and its
subsidiaries as the Underwriters may reasonably request.
12
(j) The Company will use its best efforts to do and perform,
or cause to be done or performed, all things required or necessary to
be done and performed under this Agreement by the Company prior to the
Closing Date, and to satisfy all conditions precedent to the delivery
of the Shares.
(k) The Company will endeavor in good faith, in cooperation
with the Underwriters, at or prior to the time of the date of the
Prospectus, to qualify, to the extent necessary, the Shares for
offering and sale under the securities laws relating to the offering or
sale of the Shares of such jurisdictions within the United States of
America as the Underwriters may designate and to maintain such
qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute
a general consent to service of process.
(l) During the period of 90 days from the date of the
Prospectus, the Company will not, directly or indirectly, without the
prior written consent of Bear, ▇▇▇▇▇▇▇ & Co. Inc., offer, sell,
contract to sell, swap, make any short sale, pledge, establish an open
"put equivalent position" within the meaning of Rule 16a-1(h) under the
Exchange Act, grant any option to purchase or otherwise dispose (or
publicly announce the intention to do any of the foregoing) of, or file
or announce the filing of any registration statement in connection with
the offer or sale of, any shares of Common Stock of the Company (or any
securities convertible into, exercisable for or exchangeable for shares
of Common Stock of the Company), and the Company will obtain the
undertaking of each of the directors, executive officers and certain
other officers listed in the "Management" section of the Prospectus
Supplement and the former stockholders of Data Base, Inc. that are a
party to the Stock Purchase Agreement with the Company, dated as of
February 28, 1999, as may be amended from time to time (the "DATA BASE
AGREEMENT"), not to engage in any of the aforementioned transactions on
their own behalf. Notwithstanding the foregoing, during such period the
Company may (i) issue Common Stock upon the exercise of presently
outstanding stock options and issue options to purchase shares of
Common Stock pursuant to any of its stock option plans existing on the
date of this Agreement, and (ii) enter into and perform acquisition
agreements that may obligate the Company to issue up to an aggregate
1,000,000 shares of Common Stock pursuant thereto and issue shares of
Common Stock pursuant to such agreements, so long as the persons
receiving or to receive such shares in accordance with this clause (ii)
agree in writing to be bound to the same degree that Company is bound
pursuant to this Section 4(l) for any period remaining under the
Company's agreement hereunder.
(m) During the period when the Prospectus is required to be
delivered under the Securities Act or the Exchange Act, the Company
will file all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act within the time
periods required by the Exchange Act and the rules and regulations
thereunder.
5. EXPENSES. The Company will pay all costs and expenses
incident to the performance of its obligations under this Agreement, whether or
not the transactions
13
contemplated herein are consummated or this Agreement is terminated pursuant to
Sections 9 or 11 hereof, including all costs and expenses incident to (a) the
printing or other production of documents with respect to the transactions,
including any costs of printing and filing with the Commission of any
preliminary prospectus and the Prospectus and the printing and distribution of
any underwriting documents, including this Agreement, (b) all arrangements
relating to the delivery to the Underwriters of copies of the foregoing and
related documents, (c) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (d) the
costs incident to the issuance, transfer and delivery of the Shares to the
Underwriters, including any stamp, value-added or transfer or other taxes
payable thereon, (e) the preparation, issuance and delivery to the Underwriters
of any stock certificates evidencing the Shares, (f) the qualification of the
Shares under state or foreign securities or "blue sky" laws, including the costs
of printing and mailing a preliminary and final "Blue Sky Survey" and the filing
fees and reasonable fees and disbursements of counsel for the Underwriters
relating thereto (if any), (g) all expenses and listing fees in connection with
the listing of the Shares on the New York Stock Exchange, (h) the costs and
charges (including fees and disbursements of counsel) of the transfer agent and
registrar, and (i) any meetings with prospective investors in the Shares (other
than as shall have been specifically approved by the Representatives to be paid
for by the Underwriters); PROVIDED, HOWEVER, that the Underwriters will
reimburse the Company for certain mutually agreed upon costs and expenses
incident to the Company's offering of the Shares.
6. CONDITIONS TO UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Firm Shares under this Agreement
are subject to the satisfaction of each of the following conditions:
(a) The Registration Statement shall continue to be effective
as of the First Closing Date; the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing by the Regulations; no stop order
suspending the Registration Statement or the Prospectus or any part
thereof shall have been issued and no proceeding for that purpose shall
have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have
been complied with to the reasonable satisfaction of Bear, ▇▇▇▇▇▇▇ &
Co. Inc. on behalf of the Representatives.
(b) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the First
Closing Date with the same force and effect as if made on and as of the
First Closing Date.
(c) (i) Since the date of the latest balance sheet included in
the Prospectus, there shall not have been any material adverse change,
or any development involving a prospective material adverse change, in
the business, prospects, financial condition or results of operations
of the Company and its subsidiaries taken as a whole, whether or not
arising in the ordinary course of business, except as otherwise
described in the Prospectus, (ii) since the date of the latest balance
sheet included in the Prospectus, there shall not have been any
material change, or any development involving a prospective material
adverse change, in the capital stock or in the long-term debt of the
Company from that set forth in the Prospectus, (iii) the Company and
its subsidiaries shall have no
14
liability or obligation, direct or contingent, which is material to the
Company and its subsidiaries, taken as a whole, other than those
described in the Prospectus and (iv) on the First Closing Date you
shall have received a certificate dated the First Closing Date, signed
by C. ▇▇▇▇▇▇▇ ▇▇▇▇▇, in his capacity as Chairman of the Board and Chief
Executive Officer, and by ▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., in his capacity as
Executive Vice President and Chief Financial Officer of the Company,
confirming the matters set forth in paragraphs (b), (c) and (i) of this
Section 6.
(d) The Underwriters shall have received on the First Closing
Date an opinion (satisfactory to the Underwriters and counsel for the
Underwriters), dated the First Closing Date, of ▇▇▇▇▇▇▇▇ & Worcester
LLP, counsel for the Company, to the effect that:
(i) each of the Company and its subsidiaries set
forth on Schedule II hereto (the "SIGNIFICANT SUBSIDIARIES")
has been duly incorporated or formed, is validly existing as a
corporation or limited liability company in good standing
under the laws of its jurisdiction of incorporation or
formation and has the corporate or limited liability company
power and authority required to carry on its business as it is
currently being conducted and to own, lease and operate its
properties;
(ii) each of the Company and the Significant
Subsidiaries is duly qualified and is in good standing as a
foreign corporation or limited liability company authorized to
do business in each jurisdiction in which the nature of its
business or its ownership or leasing of property requires such
qualification, except where the failure to be so qualified
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock
of, or other ownership interests in, each of the Company's
Significant Subsidiaries have been duly and validly authorized
and issued and are fully paid and non-assessable, and except
as set forth in the Prospectus are owned beneficially by the
Company, free and clear of any perfected security interest,
or, to the knowledge of such counsel, any other security
interest, claim, lien, encumbrance or adverse interest of any
nature;
(iv) the Company has an authorized, issued and
outstanding capitalization as set forth in the Registration
Statement and the Prospectus and all of the outstanding shares
of capital stock have been duly authorized and validly issued
and are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive or similar rights to
subscribe for or to purchase securities of the Company
contained in the Amended and Restated Certificate of
Incorporation or the Amended and Restated By-Laws of the
Company or in any agreements of the Company of which such
counsel has knowledge. The Firm Shares have been duly and
validly authorized and, when issued and delivered to and paid
for by the Underwriters in accordance with this Agreement,
will be duly and validly issued, fully paid and nonassessable
and will not have been issued in violation of or subject to
any preemptive rights or similar rights to subscribe for or
15
to purchase securities of the Company contained in the Amended
and Restated Certificate of Incorporation or the Amended and
Restated By-Laws of the Company or in any agreements of the
Company of which such counsel has knowledge. To such counsel's
knowledge, no holder of securities of the Company has any
right which has not been fully waived in writing to request or
require the Company to register the offer or sale of any
securities owned by such holder under the Securities Act in
connection with the public offering contemplated by this
Agreement. The Common Stock and the Firm Shares conform to the
descriptions thereof contained in the Registration Statement
and the Prospectus;
(v) this Agreement has been duly authorized, executed
and delivered by the Company and is a valid and binding
agreement of the Company enforceable in accordance with its
terms except as (A) rights to indemnity and contribution
hereunder may be limited by applicable law, (B) enforceability
thereof may be limited by bankruptcy, insolvency, fraudulent
conveyance or similar laws affecting creditors' rights
generally and (C) the availability of equitable remedies may
be limited by equitable principles of general applicability;
(vi) the statements under the captions "Description
of Capital Stock" and "Underwriting" in the Prospectus, as
amended or supplemented, insofar as such statements constitute
a summary of legal matters, documents or proceedings referred
to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
(vii) to such counsel's knowledge, neither the
Company nor any of its subsidiaries is in violation of its
respective charter or by-laws or comparable organizational
documents and, to such counsel's knowledge, neither the
Company nor any of its subsidiaries is in default in the
performance of any obligation, agreement or condition
contained in the Memogarde Agreement, except as such defaults
would not, singly or in the aggregate, result in a material
adverse change in the business, prospects, financial condition
or results of operations of the Company or any of its
subsidiaries, taken as a whole;
(viii) The execution, delivery and performance of
this Agreement and compliance by the Company with all the
provisions hereof, and the consummation of the transactions
contemplated hereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as
such may be required under the Securities Act and under the
securities or Blue Sky laws of the various states or
jurisdictions of or outside the United States in connection
with the offer and sale of the Shares), and will not conflict
with or constitute a breach of any of the terms or provisions
of, or a default under, the charter or by-laws or comparable
organizational documents of the Company or any of its
Significant Subsidiaries or any agreement, indenture or other
instrument known to such counsel to which it or any of its
Significant Subsidiaries is a party or by which it or any of
its Significant
16
Subsidiaries or their respective property is bound, or violate
or conflict with any laws, administrative regulations or
rulings or court decrees applicable to the Company, any of its
subsidiaries or their respective property;
(ix) such counsel does not know (A) of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any
of their respective property is subject which is required to
be described in the Prospectus and is not so described, or (B)
of any contract or other document which is required to be
described in the Prospectus and is not so described;
(x) to such counsel's knowledge, (A) neither the
Company nor any of its subsidiaries is in violation of any
federal or state law or regulation relating to the storage,
handling or transportation of hazardous or toxic materials,
(B) the Company and its subsidiaries have received all
permits, licenses or other approvals required of them under
applicable federal and state environmental laws and
regulations to conduct their respective businesses as
described in the Prospectus and (C) the Company and each of
its subsidiaries is in compliance with all terms and
conditions of any such permit, license or approval, except any
such violation of law or regulation, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals as would not, singly or in the aggregate, result
in a material adverse change in the business, prospects,
financial condition or results of operations of the Company
and its subsidiaries, taken as a whole;
(xi) the Company is not, and upon consummation of the
transactions contemplated by this Agreement will not be, an
"investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment
Company Act or subject to registration under the Investment
Company Act;
(xii) such counsel believes that (except for
financial statements, schedules and other financial and
statistical information contained therein) (1) the
Registration Statement (or any documents incorporated by
reference therein), does not contain and, at the time the
Registration Statement became effective, did not contain any
untrue statement of a material fact or omit or omitted to
state a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and
(2) the Prospectus, as amended or supplemented, if applicable,
(or any documents incorporated by reference therein), as of
its date and at the date of such opinion, did not and does not
contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(xiii) The Registration Statement has become
effective under the Act, and, to the best knowledge of such
counsel, no stop order suspending the
17
effectiveness of the Registration Statement has been issued
and no proceedings therefor have been initiated or threatened
by the Commission and all filings required by Rule 424(b) of
the Regulations have been made;
(xiv) The Registration Statement, the Prospectus and
each amendment thereof or supplement thereto (except the
financial statements, schedules and other financial and
statistical information contained or incorporated by reference
therein), as of their respective effective or issue dates,
complied as to form in all material respects with the
requirements of the Securities Act and the Regulations;
(xv) Each document filed pursuant to the Exchange Act
and incorporated by reference in the Registration Statement
and the Prospectus or any amendment thereof or supplement
thereto (except the financial statements, schedules and other
financial and statistical information contained or
incorporated by reference therein) when they were filed with
the Commission complied as to form in all material respects
with the requirements of the Securities Act or the Exchange
Act, as applicable, and the respective rules and regulations
of the Commission thereunder; and
(xvi) The Common Stock currently outstanding is
approved for listing on, and the Shares to be sold under this
Agreement to the Underwriters are duly authorized for listing,
on the New York Stock Exchange.
In giving such opinion with respect to the matters
covered by clause (xii) such counsel may state that their
opinion and belief are based upon their participation in the
preparation of the Prospectus and any amendments or
supplements thereto and review and discussion of the contents
thereof, but are without independent check or verification
except as specified. Notwithstanding the foregoing, the
opinion with respect to the matters covered by clause (i),
(ii) and (iii), relating to BDM and its subsidiaries, may be
delivered by Eversheds or other U.K. counsel reasonably
satisfactory to the Underwriters.
(e) The Underwriters shall have received on the First Closing
Date an opinion (satisfactory to Bear, ▇▇▇▇▇▇▇ & Co. Inc. on behalf of
the Underwriters and counsel for the Underwriters), dated the First
Closing Date, of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., general counsel for the
Company, as to the matters referred to in clauses (vi), (viii), (ix)
and (xii) of the foregoing paragraph (d) and as to the following
additional matters:
(i) to such counsel's knowledge, neither the Company
nor any of its subsidiaries is in violation of its respective
charter or by-laws or comparable organizational documents and,
to such counsel's knowledge, neither the Company nor any of
its subsidiaries is in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or other evidence of indebtedness or in any
other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries,
taken as a whole, to
18
which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective
properties are bound;
(ii) all leases to which the Company or any of its
subsidiaries is a party relating to real property in
Massachusetts or California are valid and binding and no
default has occurred or is continuing thereunder, which might
result in any material adverse change in the business,
prospects, financial condition or results of operations of the
Company and its subsidiaries taken as a whole, and the Company
and its subsidiaries enjoy peaceful and undisturbed possession
under all such leases to which any of them is a party as
lessee with such exceptions as do not materially interfere
with the use made by the Company or such subsidiary; and
(iii) to such counsel's knowledge, the Company and
each of its subsidiaries has such permits, licenses,
franchises and authorizations of governmental or regulatory
authorities ("PERMITS"), including, without limitation, under
any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
respective business in the manner described in the Prospectus;
to such counsel's knowledge without having conducted any
independent investigation, the Company and each of its
subsidiaries has fulfilled and performed all of its material
obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or would result in
any other material impairment of the rights of the holder of
any such permit, except in each case as would not, singly or
in the aggregate, have a material adverse effect (financial or
otherwise) on the Company and its subsidiaries, taken as a
whole and, except as described in the Prospectus, such permits
contain no restrictions that materially interfere with the
business or operations of the Company or any of its
subsidiaries as currently conducted.
In giving such opinion with respect to the matters covered by
clause (xii) of the foregoing paragraph (d) such counsel may state that his
opinion and belief are based upon his participation in the preparation of the
Prospectus and any amendments or supplements thereto and review and discussion
of the contents thereof, but are without independent check or verification
except as specified.
(f) The opinions of ▇▇▇▇▇▇▇▇ & Worcester LLP and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ described in paragraphs (d) and (e) above, respectively, shall
be rendered to the Underwriters at the request of the Company and shall
so state therein.
(g) The Underwriters shall have received on the First Closing
Date an opinion, dated the First Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Underwriters, as to such matters as the Underwriters
shall reasonably request.
(h) The Underwriters shall have received a letter or letters
on and as of the date of this Agreement (each, an "INITIAL LETTER"), in
form and substance satisfactory to the Representatives, from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP (with respect to Iron Mountain Incorporated,
19
Midwest Records Management, ▇▇▇▇▇ Vaults, Inc. and Affiliates and
InterMation, Inc.), ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ (with respect to Records
Retention/FileSafe, L.P.), ▇▇▇▇▇▇ ▇▇▇▇▇▇ (with respect to BDM), Ernst &
Young LLP (with respect to Arcus Technology Services, Inc., Arcus
Group, Inc. and HIMSCORP, Inc. and Subsidiaries), ▇▇▇▇ ▇▇▇▇▇ LLP (with
respect to Data Base, Inc. and Affiliate), Brach, Neal, ▇▇▇▇▇ & ▇▇▇▇▇▇,
LLP (with respect to First American Records Management, Inc.) and
Carbis ▇▇▇▇▇▇ & Associates, LLP (with respect to National Underground
Storage, Inc.), each independent public accountants, with respect to
the financial statements and certain financial information contained in
the Registration Statement and the Prospectus and a letter or letters
on and as of the First Closing Date, in form and substance satisfactory
to the Representatives, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ LLP, Brach, Neal,
▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, and Carbis ▇▇▇▇▇▇ & Associates, LLP confirming the
information contained in the initial letter or letters provided by such
accountants.
(i) The Company shall not have failed at or prior to the First
Closing Date to perform or comply with any of the agreements herein
contained and required to be performed or complied with by the Company
at or prior to the First Closing Date.
(j) Prior to the First Closing Date, the Company shall have
furnished to the Representatives such further information, certificates
and documents as the Representatives may reasonably request.
(k) The Company shall have delivered to you prior to the date
of this Agreement the agreements executed in accordance with Section
4(l) hereof.
(l) At the First Closing Date, the Shares shall have been
approved for listing on the New York Stock Exchange, subject only to
official notice of issuance and evidence of satisfactory distribution.
If any of the conditions specified in this Section 6 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to the
Representatives or to Underwriters' Counsel pursuant to this Section 6 shall not
be in all material respects reasonably satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, all obligations of the
Underwriters hereunder may be canceled by the Underwriters at, or at any time
prior to, the First Closing Date and the obligations of the Underwriters to
purchase the Additional Shares may be canceled by the Underwriters at, or at any
time prior to, the Additional Closing Date. Notice of such cancellation shall be
given to the Company in writing, or by telephone, telex or telegraph, confirmed
in writing.
The respective obligations of the several Underwriters to
purchase and pay for any Additional Shares shall be subject, in their
discretion, to each of the foregoing conditions to purchase the Firm Shares,
except that all references to the Firm Shares and the First Closing Date shall
be deemed to refer to such Additional Shares and the Additional Closing Date,
respectively.
20
7. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any and all losses, liabilities, claims,
damages and expenses whatsoever as incurred (including, but not limited to,
reasonable attorneys' fees and any and all reasonable expenses whatsoever
incurred in investigating, preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever, and any and all amounts paid
in settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Securities Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading; provided, however, that the Company shall not be liable in any such
case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or omission, or alleged untrue statement or omission, made therein in
reliance upon and in conformity with written information furnished to the
Company by, or on behalf of, any Underwriter through the Representatives
expressly for use therein. This indemnity obligation will be in addition to any
liability which the Company may otherwise have, including under this Agreement.
(b) Each Underwriter, severally, but not jointly, agrees to
indemnify and hold harmless the Company, each of the directors of the Company,
each of the officers of the Company, and each other person, if any, who controls
the Company within the meaning of Section 15 of the Securities Act or Section
20(a) of the Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever as incurred (including but not limited to attorneys' fees
and any and all reasonable expenses whatsoever incurred in investigating,
preparing or defending against any litigation, commenced or threatened, or any
claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), jointly or severally, to which they or any of them may become
subject under the Securities Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact necessary to make the statements
therein, in the light of the circumstances in which they were made, not
misleading, in each case to the extent, but only to the extent, that any such
loss, liability, claim, damage or expense arises out of or is based upon any
such untrue statement or omission, or alleged untrue statement or omission, made
therein in reliance upon and in conformity with written information furnished to
the Company by, or on behalf of, any Underwriter through the Representatives
expressly for use therein; PROVIDED, HOWEVER, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. The Company acknowledges that (i) the statements set forth in the
last paragraph of the inside front cover of the
21
Prospectus and (ii) the names of the Underwriters listed in the table within,
and the second to last paragraph of, the Underwriting Section of the Prospectus
constitute the only information furnished to the Company in writing by, or on
behalf of, any Underwriter expressly for use in the Prospectus or in any
amendment thereof or supplement thereto.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement thereof (but the
failure so to notify an indemnifying party shall not relieve it from any
liability which it may have under this Section 7, or otherwise). In case any
such action is brought against any indemnified party, and such indemnified party
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in the defense of such action, and to the
extent such indemnifying party may elect by written notice delivered to the
indemnified party promptly after receiving the aforesaid notice from such
indemnified party to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense of such
indemnified party or parties unless (i) the employment of such counsel shall
have been authorized in writing by one of the indemnifying parties in connection
with the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from or additional to those
available to one or all of the indemnifying parties (in which case the
indemnifying parties shall not have the right to direct the defense of such
action on behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the indemnifying parties (it being
understood, however, that the indemnifying party shall not be liable in any one
action or separate but substantially similar or related actions in the same
jurisdiction for the expenses of more than one separate counsel and one
additional local counsel). Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent (which consent may not
be unreasonably withheld). No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability or claims that are the subject matter
of such proceeding.
8. CONTRIBUTION. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company and
the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provision (including any investigation, legal and other expenses incurred in
connection with, and any amount paid in settlement of, any action, suit or
proceeding or any claims asserted, but after deducting any contribution received
from persons who may also be liable for contribution,
22
including officers and directors of the Company and persons who control the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act) to which the Company, on the one hand, and one or more of
the Underwriters, on the other hand, may be subject as incurred in such
proportions as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Shares or, if such allocation is not permitted by applicable law
or indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company, on the one hand, and the Underwriters, on the
other hand, in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company, on the one hand, and the Underwriters, on the other hand, shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
of the Shares (net of discounts to the Underwriters but before deducting
expenses) received by the Company and (y) the total discounts and commissions
received by the Underwriters bear to the total price to the public of the
Shares, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand, and of the
Underwriters, on the other hand, shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company on the one hand, or the Underwriters, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 8 were determined by PRO RATA allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this Section 8, no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Notwithstanding the provisions of this Section 8, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares purchased by it were offered to
investors exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. For purposes of this Section 8, each person, if
any, who controls any Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act shall have the same rights
to contribution as the Underwriters, and each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section 20(a)
of the Exchange Act and each officer and each director of the Company shall have
the same rights to contribution as the Company. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution may be made against another party or parties, notify each party or
parties from whom contribution may be sought, but the omission to so notify such
party or parties shall not relieve the party or parties from whom contribution
may be sought from any obligation it or they may have under this Section 8 or
otherwise, except to the extent that it has been prejudiced in any material
respect by the omission to so notify. No party shall be liable for contribution
with respect to any action or claim settled without its consent (which consent
may not be unreasonably withheld).
23
9. DEFAULT BY AN UNDERWRITER.
(a) If one or more of the Underwriters shall fail at each
applicable Closing Date to purchase the Shares which it or they are obligated to
purchase under this Agreement (the "DEFAULTED SHARES") and such Defaulted Shares
do not exceed in the aggregate 10% of the aggregate principal amount of the
Shares, then each non-defaulting Underwriter shall purchase an aggregate amount
of the Defaulted Shares equal to the proportion that the aggregate principal
amounts of Shares to be purchased by such Underwriter as set forth opposite such
Underwriter's name on Schedule I hereto bears to the aggregate principal amount
of Shares to be purchased by all non-defaulting Underwriters.
(b) Notwithstanding the foregoing, if the Defaulted Shares
equal or exceed in the aggregate 10% of the aggregate principal amount of the
Shares, then the non-defaulting Underwriters shall have the right, within 48
hours after the Closing Date, to make arrangements for one or more of such
non-defaulting Underwriters to purchase all, but not less than all, of the
Defaulted Shares in such amounts as may be agreed upon among such non-defaulting
Underwriters and upon the terms herein set forth; PROVIDED that if the
non-defaulting Underwriters shall not have completed such arrangements within
such 48-hour period, then this Agreement shall terminate without liability on
the part of the non-defaulting Underwriters or the Company.
No action taken pursuant to this Section 9 shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, any of the non-defaulting Underwriters or the
Company shall have the right to postpone the Closing Date for a period not
exceeding seven days in order to effect any required changes in the Prospectus
or in any other documents or arrangements.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All
representations and warranties, covenants and agreements of the Underwriters or
the Company contained in this Agreement, including, without limitation, the
agreements contained in Sections 4 and 5, the indemnity agreements contained in
Section 7 and the contribution agreements contained in Section 8, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Underwriters or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, and shall survive delivery of and payment for the Shares to and
by the Underwriters. The representations contained in Section 1 and the
agreements contained in Sections 2 (to the extent provided in Section 9), 5, 7
and 8 and this Section 10 shall survive the termination of this Agreement,
including termination pursuant to Section 9 or 11.
11. TERMINATION. (a) The Representatives shall have the right
to terminate this Agreement at any time prior to the Closing Date:
(i) if any domestic or international event or act or
occurrence has materially disrupted, or in the Representatives' sole
opinion will in the immediate future materially
24
disrupt, the market for the Company's securities or the United States
or international securities markets in general;
(ii) if trading on the New York Stock Exchange, the American
Stock Exchange or the National Association of Securities Dealers
Automated Quotation System shall have been suspended or materially
limited;
(iii) if a banking moratorium has been declared by any United
States federal or New York State authority or if any new restriction
materially adversely affecting the distribution of the Shares shall
have become effective;
(iv) if the United States becomes engaged in hostilities or
there is an escalation of hostilities involving the United States or
there is a declaration of a national emergency or war by the United
States; or
(v) if there shall have been any other change in political,
financial or economic conditions, if the effect of such event in the
sole judgment of the Representatives is to make it impracticable or
inadvisable to proceed with the offering, sale and delivery of the
Shares on the terms contemplated by the Prospectus.
(b) Any notice of termination pursuant to this Section 11
shall be made to the Company by telephone, telex or telegraph, confirmed in
writing by letter.
(c) If this Agreement shall be terminated pursuant to any of
the provisions hereof (otherwise than pursuant to Section 9(b) or 11(a)), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with the provision hereof, the
Company will, subject to demand by the Representatives, reimburse the
Underwriters for all out-of-pocket expenses (including the fees and expenses of
their counsel), incurred by the Underwriters in connection herewith.
12. NOTICE. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, telecopied, telexed or telegraphed and
confirmed in writing, to such Underwriter, c/o Bear, ▇▇▇▇▇▇▇ & Co. Inc., ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇; with a
copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇; if sent to the Company, shall be mailed, delivered,
telecopied, telexed or telegraphed and confirmed in writing to Iron Mountain
Incorporated, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer; with a copy to ▇▇▇▇▇▇▇▇ & Worcester LLP, ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
13. CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES. (a) The
Company:
(i) irrevocably submits to the jurisdiction of any
New York State or federal court sitting in New York City and
any appellate court from any thereof in
25
any action or proceeding arising out of or relating to this
Agreement or any other document delivered hereunder;
(ii) irrevocably agrees that all claims in respect of
any such action or proceeding may be heard and determined in
such New York State court or in such federal court; and
(iii) irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding and irrevocably
consents, to the fullest extent permitted by law, to service
of process of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the Company
at its address as provided in Section 12 of this Agreement,
such service to become effective five days after such mailing;
(b) Nothing in this Section 13 shall affect the right of any
person to serve legal process in any other manner permitted by law or
affect the right of any person to bring any action or proceeding
against the Company or its properties in the courts of other
jurisdictions.
14. PARTIES. This Agreement shall inure solely to the benefit
of, and shall be binding upon, the Underwriters, the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from the Underwriters.
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York for contracts
made and to be fully performed in such state without regard to the conflict of
law principles thereof.
16. COUNTERPARTS. This Agreement may be executed and delivered
(including by facsimile transmission) in one or more counterparts, and by the
different parties hereto in separate counterparts, each of which when executed
and delivered shall be deemed to be an original but all of which taken together
shall constitute one and the same agreement.
26
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement between the Underwriters and the Company in accordance with its terms.
Very truly yours,
IRON MOUNTAIN INCORPORATED
By: / S / C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------
Name: C. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
Accepted as of the date first above written:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
▇▇▇▇▇▇▇ ▇▇▇▇▇ & COMPANY L.L.C.
PRUDENTIAL SECURITIES INCORPORATED
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ SECURITIES, INC.
By: / S / ▇▇▇▇▇▇▇ PARISH
----------------------
Name: ▇▇▇▇▇▇▇ Parish
Title: Senior Managing Director
On behalf of themselves and the other
Underwriters named on Schedule I hereto
SCHEDULE I
Number of Additional Shares to
Total Number of Firm Shares To be Purchased if Maximum Option
Name of Underwriter Be Purchased is Exercised
------------------- ----------------------------- ------------------------------
Bear, ▇▇▇▇▇▇▇ & Co., Inc. 2,760,000 414,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Company L.L.C. 1,150,000 172,500
Prudential Securities Incorporated 460,000 69,000
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Securities, Inc. 230,000 34,500
▇▇▇▇▇ & Company Incorporated 100,000 15,000
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. 100,000 15,000
CJS Securities, Inc. 100,000 15,000
▇▇▇▇▇▇▇▇▇ & Company, Inc. 100,000 15,000
--------- -------
--------- -------
Total 5,000,000 750,000
SCHEDULE II
LIST OF SIGNIFICANT SUBSIDIARIES
Name State or Jurisdiction of
------------------------------------------------- Incorporation
-------------------------
Iron Mountain Records Management, Inc. Delaware
Iron Mountain of Maryland LLC Delaware
Iron Mountain/Safesite, Inc. Delaware
Arcus Data Security, Inc. Delaware
Arcus Staffing Resources, Inc. Delaware
Iron Mountain/National Underground Storage, Inc. Delaware
Criterion Atlantic Property, Inc. Delaware
Britannia Data Management Limited United Kingdom