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HomeMy WebLinkAboutNon-Competition & Confidentiality AgreementExhibit C NON -COMPETITION AND CONFIDENTIALITY AGREEMENT THIS NON -COMPETITION AND CONFIDENTIALITY AGREEMENT (this "Agreement"), dated as of the _ day of , 2007, is entered into by and between Adam J. Wasserstein, an individual residing at ("Executive"), and Iron Mountain Information Management, Inc., a Delaware corporation ("Buyer") having a principal place of business at 745 Atlantic Avenue, Boston, Massachusetts 02111. WITNESSETH: WHEREAS, Buyer, ArchivesOne, Inc., a Connecticut corporation ("Company") in the records and information management business and the other parties thereto, including the Executive (each a "Seller" and collectively, "Sellers") have entered into a Securities Purchase and Sale Agreement dated as of March 30, 2007 (the "Securities Purchase Agreement") pursuant to which Buyer on the date hereof has purchased all of the outstanding securities of the Company from the Sellers; WHEREAS, Executive held a significant ownership interest in and was the president and chief executive officer of the Company and will receive a direct benefit from the sale of the Company, including the Business, to Buyer; WHEREAS, Executive has become an employee of Buyer in connection with the sale of the Company; and WHEREAS, it is a condition to Buyer's obligation to carry out the transactions contemplated by the Securities Purchase Agreement that Executive execute this Agreement, and Buyer is relying upon Executive's agreement to observe the agreements herein contained. NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained, and for other good and valuable consideration, including the transactions contemplated by the Securities Purchase Agreement, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: 1. CAPITALIZED TERMS. Capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Securities Purchase Agreement, and such definitions are hereby incorporated by reference herein. Page 1 of 7 6964/12001.002 Current/9458315v2 {B0624203; 3) 2. CONFIDENTIAL INFORMATION. Except as requested by Buyer, Executive shall not, and he shall cause his Affiliates not to, disclose to others or make available, directly or indirectly, to others or use for Executive's or others' benefit confidential information, whether or not reduced to written or other recorded form, related to the Company, Buyer or any of their subsidiaries or the records and information management business (the "Business"). The term "confidential information" means the names of customers, the contact persons at customers, pricing offered to customers by the Company or Buyer, the software programs utilized by .the Company or Buyer or any of their subsidiaries in the operation of the Business, information related to prospective customers, information regarding potential acquisition targets and all other information material to the operation, management, marketing or financing of the Company and Buyer, any of their subsidiaries or the Business which is not known or generally available to the public or competitors in the trade. The term "confidential information" shall not include information which: (a) is required to be disclosed by judicial, legal or administrative process or order, or by other requirements of law (and which is not otherwise subject to confidential treatment in respect of such process or order); (b) is or becomes generally available to the public other than as a result of a breach of this Section; or (c) is received from a third party who obtained such information other than under an obligation of confidentiality. 3. NON -COMPETITION. Executive agrees that he shall not, and he shall cause his Affiliates not to, without the prior written consent of the Buyer, for a period of ten (10) years from the date hereof, directly or indirectly, own, manage, engage in, participate in, provide advice to, be employed by, have a financial interest in or provide financial support or any advice to a Competing Business (as defined below); provided, however, that Executive may during such period (i) be employed by Buyer and its Affiliates, (ii) in the ordinary course of the performance of his duties as an employee of Buyer on behalf and for the benefit of Buyer, do such things and take such actions that would otherwise be prohibited pursuant to this Section 3, (iii)• own up to 3% of any class of any company's publicly traded securities, and (iv) own as a passive investor up to 3% of the outstanding equity in a venture capital and/or private equity fund (each a "Private Equity Fund") and, for the avoidance of doubt, in connection with such investment in a Private Equity Fund, Executive (x) shall not make any disclosures that would constitute a violation of Section 2 hereof or provide any assistance with or advice to the Private Equity Fund in connection with a Competing Business and (y) shall not become a member of the board of directors or similar governing body (or a board observer) of any Competing Business in which the Private Equity Fund has invested. For purposes of this Agreement, the term "Competing Business" means any enterprise which provides records and information management services to business locations in North America and includes, without limitation, each business listed on Exhibit A attached hereto (each, a "Restricted Company"), or any Person (as defined in the Page 2 of 7 6964112001-002 CurrenV9458315v2 (B0624203; 3) Securities Purchase. Agreement) that directly or indirectly, through one of more intermediaries, controls, is controlled by, or is under common control with, such Restricted Company, and any successor -in -interest to such Restricted Company (or of any subsidiary, division, or depa.rtiuent thereof that, if considered independently, would constitute a Competing Business), 4. AGREEMENT NOT TO SOLICIT CUSTOMERS OR EMPLOYEES. Executive shall not, and he shall cause his Affiliates not to, on his own behalf or on behalf of any other person or entity under his control or on behalf of others, for a period of ten (10) years after the date hereof, directly or indirectly: (a) other than at the request, on behalf and for the benefit of Buyer or its Affiliates during his employment by Buyer or one of its Affiliates, solicit or attempt to solicit or divert or attempt to divert any person who was a customer of the Company or any of its subsidiaries on or prior to the date hereof or who is a customer of Buyer during the term of this Agreement to utilize any person other than Buyer for such customer's records and information management requirements; (b) interfere or attempt to interfere in any way with Buyer's relationships with any of its customers, sales representatives, suppliers, key advisors or consultants, including, without limitation, inducing or attempting to induce any customer, sales representative, supplier, key advisor or consultant to terminate or change the terms of its dealings with Buyer during the term of this Agreement; (c) offer employment in a Competing Business to any person (i) employed by the Company or any of its subsidiaries (or any agency contracted by the Company or any of its subsidiaries to employ such employees on behalf of the Company or any of its subsidiaries) on or prior to the date hereof (other than at the request, on behalf and for the benefit of Buyer during his employment by Buyer), or (ii) employed by Buyer or any of its subsidiaries during the term of this Agreement; (d) induce any person employed by Buyer during the term of this Agreement to terminate his or her employment with Buyer; or (e) knowingly hire any person employed by Buyer during the term of this Agreement; unless such employment is the result of a general solicitation not targeted to employees of Buyer. 5. REASONABLENESS OF CONDITIONS. Executive acknowledges that he has carefully read all the terms herein stated and agrees that the same are necessary for the reasonable and proper protection of the value of Buyer, the Company, any of its subsidiaries and the Business; and that each and every covenant is reasonable with respect to such matter, length of time, and the geographical area described; and that irrespective of all other conditions, the covenants and restrictions hereinabove provided shall be operative during the full period and throughout the geographical area described. Page3 of7 6964/12001-002 CurrenU9458315v2 (80624203; 3) 6. ENFORCEMENT. Executive acknowledges that confidential information in his possession related to the Company, any of its subsidiaries and the Business purchased by Buyer has particular value, the loss of confidentiality of which by communication to unauthorized persons cannot be reasonably or adequately compensated for by damages alone. Moreover, Executive agrees that any breach of paragraphs 2, 3 or 4 of this Agreement would give rise to damages which would be difficult to calculate. Therefore, Executive hereby agrees that in the event of a breach of any of the terms and conditions of this Agreement, Buyer shall be entitled to equitable relief by way of an injunction. Nothing contained herein shall be construed as a limitation upon Buyer's remedies for any such breach. 7. INTERPRETATION. The restrictions contained in this Agreement shall be broadly construed by any court having jurisdiction of the matter in order to protect Buyer to the maximum degree possible. The parties acknowledge that the provisions of this Agreement have been negotiated by the parties with the assistance of legal counsel or in the alternative, that each party had the opportunity to have this Agreement negotiated with the assistance of counsel. The term "Buyer" as used herein includes any of Buyer's Affiliates. An "Affiliate" of the Buyer, for purposes of this Agreement, means (i) another Person (as defined in the Securities Purchase Agreement) that directly or indirectly, through one of more intermediaries, controls, is controlled by, or is under common control with, the Buyer and (ii) any assignee of Buyer who acquires all or substantially all of the Business sold to Buyer pursuant to the Securities Purchase Agreement. An "Affiliate" of the Executive means another Person that directly or indirectly, through one of more intermediaries, controls, is controlled by, or is under common control with, the Executive. 8. GOVERNING LAW. All questions regarding the validity hereof or the interpretation or enforcement hereof shall be governed by the laws of the Commonwealth of Massachusetts without regard to principles of conflict of laws. 9. EXECUTION. This Agreement may be executed in one or more counterparts each of which shall be deemed an original, and all of which shall constitute one and the same original. 10. NOTICES. Notices, requests, permissions, waivers and other communications hereunder shall be in writing and shall be delivered in accordance with the terms of the Securities Purchase Agreement, except that Executive's address for receipt of notices shall be the address at the heading of this Agreement.. 11. SEVERABILITY. The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any proceeding brought to enforce such restriction. In furtherance of the foregoing, if any court construes any of the provisions of Section 3, or any part thereof, to be unreasonable because of the duration of such provision or the geographic scope thereof, such Page 4 of 7 6964/12001-002 Current/9458315v2 {60624203; 3} court shall have the power to reduce the duration or restrict the geographic scope of such provision and to enforce such provision as so reduced or restricted. Without limitation, paragraphs 2, 3, 4(a), 4(b), 4(c), 4(d) and 4(e) are each severable from one another. If any one or more of such paragraphs, or any of their subparts, are deemed to be invalid or unenforceable in. one jurisdiction, such invalidity or unenforceability shall not affect the validity of such paragraphs, or any of their subparts, in any other jurisdiction. 12. FURTHER ASSURANCES. Each party hereto shall execute and deliver such additional documents as may be necessary or desirable to consummate the transactions contemplated by this Agreement. • 13. SPECIFIC PERFORMANCE. The parties hereto agree that the remedy at law for any breach of this Agreement will be inadequate and that any party by whom this Agreement is enforceable shall be entitled to specific performance in addition to any other appropriate relief or remedy. Such party may, in its sole discretion, apply to a court of competent jurisdiction for specific performance or injunctive or such other relief as such court may deem just and proper in order to enforce this Agreement or prevent any violation hereof and, to the extent permitted by applicable law, each party waives any objection to the imposition of such relief. 14. HEADINGS; REFERENCES; CONSTRUCTION. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. The language in this Agreement will be deemed the language chosen by the parties to express their mutual intent and no rule of strict construction will be applied against any party. 15. ENTIRE AGREEMENT. This Agreement sets forth the entire agreement of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, undertakings, and representations of the parties in connection herewith. No termination, modification, or waiver of any of the provisions hereto shall be binding unless expressed in a writing signed by the parties hereto. In the event that Executive is also party to an employee confidentiality and noncompetition agreement with Buyer, entered in connection with his employment by Buyer or its subsidiaries, and the tems of such agreement conflict with the terms of this Agreement, the terms of this Agreement shall prevail to the extent of such conflict. 16. AMENDMENT. This Agreement may be amended only by a written instrument executed by the parties or their respective successors or assigns. [Remainder of Page Intentionally Left Blank] 6964112001.002 CurrenU9458315v2 {B0624203; 3) Page 5 of 7 IN WITNESS WHEREOF, the parties have hereunto set their hands as of the date first above written. Adam J. Wasserstein Accepted: IRON MOUNTAIN INFORMATION MANAGEMENT, INC. By: Name: Title: Date: , 2007 Page 6 of 7 6964/12001-002 Current19458315v2 {B0624203;3) EXHIBIT A Cintas Corporation Brambles Limited (including Recall Corporation) Pitney Bowes Inc. Xerox Corporation Crown Worldwide Holdings Ltd. The Brink's Company Page 7 of 7 6964112001-002 Current19456315v2 (B0624203; 3}