EXHIBIT D
ESCROW AGREEMENT
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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"), Xxxx X. Xxxxxx, an individual with a business address at Keystone
Capital, Inc., 000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, XX 00000 (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:
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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
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1.1 Delivery. Upon consummation of the Merger, Acquiror will deliver to
the Escrow Agent a certificate registered in the name of Xxxx X. Xxxxxx, 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
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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 Xxxx X. Xxxxxx, 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
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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 Xxxx X.
Xxxxxx, 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,
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(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
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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 Xxxx X.
Xxxxxx, 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
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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
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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),
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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
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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
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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.
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ARTICLE 5
TERMINATION
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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
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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
000 Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Chief Executive Officer
With copy to:
Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx, Esq.
and
If to the Agent:
Xxxx X. Xxxxxx
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Keystone Capital, Inc.
000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With copies to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to the Escrow Agent:
State Street Bank and Trust Company
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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
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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
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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.]
-13-
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/ Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
THE AGENT:
/s/ Xxxx X. Xxxxxx
-------------------------------
Xxxx X. Xxxxxx, as Agent
ACQUIROR:
IRON MOUNTAIN INCORPORATED
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Executive Vice President
ESCROW AGENT:
STATE STREET BANK AND TRUST COMPANY, as Escrow Agent
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Assistant Vice President
