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Home My WebLink AboutSecurities Purchase & Sale AgreementEXECUTION COPY SECURITIES PURCHASE AND SALE AGREEMENT by and among IRON MOUNTAIN INFORMATION MANAGEMENT, INC., as Buyer, . ARCHIVES ONE, INC., as the Company, and The Sellers identified herein March 30, 2007 {E30624O51; 4J 8019/12001-002 CurrenU9387690v9 TABLE OF CONTENTS Pate Article I - PURCHASE AND SALE OF SECURITIES; CLOSING 1 Section 1.1. Purchase and Sale of Securities 1 Section 1.2. Purchase Price and Payment 1 Section 1.3. Payments at Closing for Indebtedness; Termination of Options; Payment of Transaction Expenses 3 Section 1.4. Adjustment to Purchase Price 4 Section 1.5. Time and Place of Closing 5 Section 1.6. Deliveries at Closing. 6 Section 1.7. Sellers' Representative 6 Article II - REPRESENTATIONS AND WARRANTIES OF THE COMPANY 8 Section 2.1. Existence; Good Standing; Authority. 8 Section 2.2. Capitali7ation 9 Section 2.3. Subsidiaries. 9 Section 2.4. No Conflict 10 Section 2.5. Financial Statements; Liabilities 10 Section 2.6. Absence of Certain Changes 11 Section 2.7. Consents and Approvals. 11 Section 2.8. Litigation 12 Section 2.9. Taxes. 12 Section 2.10. Employee Benefit Plans 13 Section 2.11. Real and Personal Property 14 Section 2.12. Labor and Employment Matters 15 Section 2.13. Contracts and Commitments 15 Section 2.14. Intellectual Property • 16 Section 2.15. Environmental Matters 16 Section 2.16. Insurance 17 Section 2.17. Brokers 17 Section 2.18. Compliance with Laws. 17 Section2.19. Disclaimer of Other Representations and Warranties; Knowledge; Disclosure 17 Article III - SEVERAL REPRESENTATIONS AND WARRANTIES OF SELLERS 18 Section 3.1. Securities 18 Section 3.2. Authority 18 Article IV - REPRESENTATIONS AND WARRANTIES OF BUYER 19 Section 4.1. Existence; Good Standing; Authority 19 Section 4.2. No Conflict. 19 Section 4.3. Consents and Approvals 20 Section 4.4. Litigation 20 i {B0624051; 4} 8019/12001-002 Current19387690v9 Section 4.5. Financing 20 Section 4.6. Brokers 21 Section 4.7. Investment Intent 21 Section 4.8. Inspection; No Other Representations 21 Article V CERTAIN COVENANTS OF BUYER, THE COMPANY AND THE SELLERS 22 Section 5.1. Conduct of Business Prior to Closing 22 Section 5.2. Access to Information 23 Section 5.3. Confidentiality 24 Section 5.4. Regulatory and Other Authorizations; Consents. 24 Section 5.5. Further Action 25 Section 5.6. Press Releases 25 Section 5.7. No Solicitation 25 Section 5.8. Notice of Certain Facts . 25 Article VI - ADDITIONAL COVENANTS 26 Section 6.1. Conveyance Taxes 26 Section 6.2. Books and Records 26 Section 6.3. Officers' and Directors' Indemnification 26 Article VH - CONDITIONS TO CLOSING 27 Section 7.1. Conditions to Obligations of the Sellers 27 Section 7.2. Conditions to Obligations of Buyer 28 Article VIII - SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION 29 Section 8.1. Survival _ .29 Section 8.2. Several Indemnification by the Sellers 29 Section 8.3. Indemnification by Buyer. 32 Section 8.4. Treatment of Indemnity Payments 34 Section 8.5. Remedies Exclusive 34 Article IX - TERMINATION 35 Section 9.1. Termination 35 Section 9.2. Effect of Termination 36 Section 9.3. Waiver 37 Article X - GENERAL, PROVISIONS 38 Section 10.1. Notices 38 Section 10.2. Fees and Expenses 39 Section 10.3. Certain Definitions 39 Section 10.4. Interpretation 39 Section 10.5. Counterparts 39 Section 10.6. Amendments 40 Section 10.7. Entire Agreement; Severability 40 {80624051;4} 8019/12001-002 CurrenU9387690v9 Section 10.8. Third Party Beneficiaries 40 Section 10.9. Governing Law 40 Section 10.10. Assignment 40 Section 10.11. Consent to Jurisdiction 40 Section 10.12. Mutual Drafting 40 Section 10.13. Remedies.... 41 Section 10.14. Termination of Agreements 41 EXHIBITS Exhibit A Sellers; Securities; Pro Rata Share Exhibit B Form of Escrow Agreement Exhibit C Form of Noncompetition Agreement Exhibit D Certain Definitions SCHEDULES Schedule 2.1(a) Organization and Good Standing Schedule 2.2 Capitalization Schedule 2.3(a) Subsidiaries Schedule 2.4 Conflicts Schedule 2.5 Financial Statements Schedule 2.6 Absence of Certain Changes Schedule 2.7(a) Government Consents Schedule 2.7(b) Third -Party Consents Schedule 2.8 Litigation Schedule 2.9 Taxes Schedule 2.10 Employee Benefit Plans Schedule 2.11(a) Real Property, Leases Schedule 2.11(b) Personal Property Schedule 2.12(a) Employment Matters Schedule 2.12(b) Labor Matters Schedule 2.13 Certain Contracts and Commitments Schedule 2.14 Intellectual Property Schedule 2.16 Insurance Schedule 4.2 Conflicts of Buyer Schedule 4.3(a) Buyer Government Consents Schedule 4.3(b) Buyer Third -Party Consents Schedule 4.5 Buyer's Financing Commitment Schedule 5.1 Conduct of Business {60624051; 4} 8019/12001-002 Current/9387690v9 EXECUTION COPY SECURITIES PURCHASE AND SALE AGREEMENT This SECURI I IES PURCHASE AND SALE AGREEMENT (this "Agreement") is dated as of March 30, 2007 by and among ARCHIVESONE, INC., a Connecticut corporation (the "Company"), IRON MOUNTAIN INFORMATION MANAGEMENT, INC., a Delaware corporation ("Buyer"), the Persons listed on the signature pages hereto (each, a "Seller" and collectively, the "Sellers") and Housatonic Management Company, Inc. (the "Sellers' Representative"). WHEREAS, the Sellers own beneficially and of record all the issued and outstanding capital stock of the Company, and all Warrants to acquire capital stock of the Company (collectively, the "Securities"); and WHEREAS, each Seller desires to sell to Buyer, and Buyer desires to purchase from each Seller, all of the issued and outstanding Securities owned by such Seller on the terms and conditions set forth herein. NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: Article I - PURCHASE AND SALE OF SECURI LIES; CLOSING Section 1.1. Purchase and Sale of Securities. Subject to the terms and conditions set forth in this Agreement and in reliance on the representations and warranties contained herein, at the Closing (as defined below), each Seller severally agrees to sell to Buyer, and Buyer agrees to purchase from each such Seller, all of the Securities owned by such Seller as set forth opposite such Seller's name on Exhibit A hereto for the purchase price set forth in Section 1.2 below. Section 1.2. Purchase Price and Payment a) The aggregate purchase price for the Securities shall be an amount equal to dollars (90011m, minus the amount of any Indebtedness, minus the amount of Transaction Expenses, plus or minus the Net Working Capital Adjustment Amount (as defined and determined in accordance with Section 1.4) (the "Purchase Price"). The Purchase Price shall be payable as follows: (i) Buyer shall deliver 111.0110idollars ($) (the "Escrow Deposit") to JPMorgan Chase, N.A. (the "Escrow Agent") to be deposited in escrow pursuant to the terms of the Escrow Agreement in substantially the form attached hereto as Exhibit B (the "Escrow Agreement") in order to secure the indemnification obligations set forth in Article VIII hereof and, if required, the Sellers' obligations under Section 1.4. The Escrow Deposit, together with all interest accrued and income eamed thereon, shall be referred to herein as the "Escrow Fund". Each Seller shall receive an interest in the Escrow 8019/12001-002 CurrenU9387690v9 Fund based on such Seller's respective share of the Purchase Price in respect of such Seller's Common Stock and/or Warrants, as set forth on Exhibit A hereto (with respect to each Seller, a "Pro Rata Share"). (ii) At the Closing, Buyer shall deliver to each Seller a portion of the Purchase Price (using, for purposes of the Net Working Capital Adjustment Amount, the estimate thereof calculated in accordance with Section 1.4(a)) which is equal to the consideration to which such Seller is entitled in respect of the Securities held by such Seller as of the Closing, as determined in accordance with the Company's Certificate of Restatement of the Certificate of Incorporation as in effect on the date hereof and the Closing Date (the "Charter"), as follows: (A) The Sellers holding Series A Preferred shall be paid an amount per share of Series A Preferred held by such Seller equal to the Series A Liquidation Value as of the Closing Date; (B) The Sellers holding Series B Preferred shall be paid an amount per share of Series B Preferred held by such Seller equal to the Series B Liquidation Value as of the Closing Date; (C) The Sellers holding Common Stock shall be paid an amount per Share held by such Seller equal to the Per Share Purchase Price, less such Seller's Pro Rata Share of the Escrow Deposit in respect of such Common Stock; and (D) The Sellers holding Warrants shall be paid an amount per Warrant Share held by such Seller equal to the difference between the Per Share Purchase Price and the exercise price per Warrant Share, less such Seller's Pro Rata Share of the Escrow Deposit in respect of such Warrants. (iii) At the Closing, the Sellers' Representative (as defined below) shall update Exhibit A to reflect the exercise of any Warrants or Options prior to or in connection with the Closing, the amounts to be paid to each Seller at the 'Closing and eaoh Seller's Pro Rata Share, and shall deliver such updated Exhibit A to Buyer with wire transfer instructions for each Seller. Any such update shall not increase the aggregate amount of consideration payable by Buyer at the Closing. (b) Each Seller acknowledges and agrees that the nuiiibei of Securities set forth opposite such Seller's name on Exhibit A is true and correct. Each Seller further agrees to be bound by the Sellers' Representative's calculation of the portion of the Purchase Price to be received by such Seller hereunder (as determined in accordance with Section 1.2(a) above and as set forth on Exhibit A), and that such amount represents the full amount to which such Seller is entitled under the Charter in respect of such Seller's Securities. Buyer shall be entitled to rely on such Exhibit A and shall not be liable to any Sellers for any mistakes or inaccuracies therein. 2 8019/12001-002 Current/9387690v9 (c) The holders of any Options (each, an "Optionee") to purchase Common Stock who elect to exercise such Options prior to the CIosing shall be entitled to the consideration to which such Optionee would be entitled if such Optionee held such shares of Common Stock on the date hereof, but not any payments in respect of Section 1.3(c) below, and each such Optionee shall execute a joinder to this Agreement pursuant to which such Optionee agrees to be bound by the terms hereof as a "Seller". Section 1.3. Payments at Closing for Indebtedness; Termination of Options; Payment of Transaction Expenses. • (a) As of the Closing Date, Buyer shall provide sufficient funds to the Company to enable the Company to repay all indebtedness, including without limitation, accrued interest and all fees, expenses and other amounts (including so-called "breakage" amounts).due in connection with such repayment (the "Senior Indebtedness") then outstanding under the Senior Credit Agreement. Buyer and the Company will cooperate in arranging for such repayment and shall take such reasonable actions as may be necessary to facilitate such repayment and to facilitate the release, in connection with such repayment, of any Encumbrances (as defined below) or other charges securing such Senior Indebtedness. (b) As of the Closing Date, Buyer shall provide sufficient funds to the Company to enable the Company and the Borrower to repay all indebtedness, including without limitation, accrued interest and all fees, expenses and other amounts (including so-called "breakage" amounts) due in connection with such repayment (the "Subordinated Indebtedness") then outstanding under the Subordinated Note Purchase Agreement. Buyer and the Company will cooperate in arranging for such repayment and shall take such reasonable actions as may be necessary to facilitate such repayment and to facilitate the release, in connection with such repayment, of any Encumbrances or other charges securing such Subordinated Indebtedness. (c) At or immediately, prior to the Closing, the Company shall terminate each Option outstanding immediately prior to the Closing pursuant to an Option Termination Agreement by and between the Company and each Optionee in form reasonably satisfactory to Buyer and the Sellers' Representative (the "Option Termination Agreement") and pursuant thereto, the Company shall, subject to receipt of such executed Option Termination Agreement from such Optionee, (i) at the Closing pay to each such Optionee an amount equal to the difference between (A) the product of (I) the Per Share Purchase Price and (11) the number of Vested Options held by such Optionee as of the Closing Date and (B) an amount equal to the aggregate exercise price for such Vested Options, less, only to the extent that the Optionee's Option Termination Agreement provides that Optionee's proceeds are subject to the escrow, such Optionees' Pro Rata Share of the Escrow Deposit in respect of such Vested Options, as applicable, and (ii) provide for the Optionee to receive such Optionee's Pro Rata Share of any• distributions to the Sellers from the Escrow Fund or pursuant to Section 1.4(c). Notwithstanding anything to the contrary contained herein, with respect to any payments made to the Optionees hereunder (including from the Escrow Fund), the Company shall 3 8019/12001-002 Curren1/9387890v9 withhold any and all amounts with respect to employment, payroll and similar Taxes (as defined below) required to be withheld in accordance with applicable law. (d) At the Closing, Buyer shall pay on behalf of the Company and the Sellers (and the Optionees), the Transaction Expenses to the Persons entitled thereto. Section 1.4. Adjustment to Purchase Price. (a) Prior to the CIosing Date, the Company shall in good faith prepare an estimated consolidated balance sheet of the Company and its Subsidiaries as of the Closing Date (the "Estimated Closing Date Balance Sheet"). The Estimated Closing Date Balance Sheet shall be prepared in accordance with GAAP consistently applied, and otherwise consistent with the methodology used to prepare the Company's Base Balance Sheet (as defined in Section 2.5). Not later than five (5) business days prior to the Closing Date, the Sellers' Representative shall deliver to Buyer the Estimated Closing Date Balance Sheet, together with worksheets and data that support the Estimated Closing Date Balance Sheet and any other information that Buyer may reasonably request in order to verify the amounts reflected on the Estimated Closing Date Balance Sheet. As provided in Section 1.2 hereof, the Purchase Price to be paid at the Closing shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Working Capital set forth on the Estimated Closing Date Balance Sheet (the "Estimated Closing Working Capital") exceeds or is less than $4,250,000 (the "Base Working Capital"), as applicable. (b) As soon as practical after the Closing Date, Buyer shall review the Estimated Closing Date Balance Sheet in accordance with GAAP consistently applied and otherwise consistent with the methodology used to prepare the Base Balance Sheet and the Company's books and records and make any adjustments necessary thereto (the "Post -Closing Balance Sheet") consistent with the provisions of this Section 1.4. Buyer shall, within sixty (60) days of the Closing Date, deliver the Post -Closing Balance Sheet to the Sellers' Representative, together with worksheets which detail any adjustments and the basis thereof. The Post -Closing Balance Sheet, and the Working Capital at the Closing reflected thereon, shall be binding upon the parties upon approval of such Post - Closing Balance Sheet by the Sellers' Representative. If the Sellers' Representative does not agree with the Post -Closing Balance Sheet and the calculation of Working Capital at the Closing stated thereon, then the Sellers' Representative shall notify Buyer in writing of any objection thereto, within thirty (30) days following receipt by the Sellers' Representative of the Post -Closing Balance Sheet (which shall contain reasonable detail concerning any such dispute and the basis therefor), and Buyer and the Sellers' Representative shall negotiate in good faith to resolve any such disputes with respect thereto. Failure to deliver any such notice within such thirty (30)-day period shall be deemed to be an acceptance by Sellers' Representative of Buyer's calculation of Working Capital at the Closing as reflected on the Post -Closing Balance Sheet. If after twenty (20) days Buyer and the Sellers' Representative cannot mutually agree on the same, then Buyer and the Sellers' Representative shall select a nationally recognized independent accounting firm mutually satisfactory to Buyer and the Sellers' Representative to resolve such dispute (the "Neutral Auditor"). The Neutral Auditor shall review the Post- 4 8019/12001-002 CurrenU9387690v9 Closing Balance Sheet and, within thirty (30) days of its appointment, shall make any adjustments necessary thereto, and, upon completion of such review, such Post -Closing Balance Sheet and the Working Capital at the Closing (the "Closing Working Capital") as determined by the Neutral Auditor shall be binding upon the parties. The fees and expenses associated with such a review and determination by the Neutral Auditor shall be borne equally by Buyer and the Sellers and, in the case of the Sellers, paid from the Escrow Fund. (c) Within three (3) business days following determination of the Closing Working Capital in accordance with Section 1.4(b.), (i) in the event the Closing Working Capital is less than the Estimated Closing Working Capital, Buyer shall be entitled to be paid an amount equal to such difference from the Escrow Fund, and, (ii) in the event the Working Capital at the Closing is greater than the Estimated Closing Working Capital, Buyer shall pay to the Sellers' Representative, on behalf of the Sellers and the Optionees, the difference by wire transfer of immediately available funds or check. The difference between the Base Working Capital and the Closing Working Capital is referred to as the "Net Working Capital Adjustment Amount". (d) As used in this Section 1.4: (i) "Working Capital" means Current Assets minus Current Liabilities; (ii) "Current Assets" means and includes all cash, cash equivalents, accounts receivable, prepaid expenses and all other current assets of the Company and its Subsidiaries, in each case as determined in accordance with GAAP, consistently applied and consistent with the methodologies and practices used in preparing the Base Balance Sheet; and (iii) "Current Liabilities" means and includes all accounts payable, accrued expenses, accrued but unpaid taxes, deferred revenues and all other current liabilities of the Company and its Subsidiaries, in each case as determined in accordance with GAAP, consistently applied and consistent with the methodologies and practices used in preparing the Base Balance Sheet; provided, however, the foregoing shall not include any Transaction Expenses or Indebtedness. (iv) For purposes of clarity, both the Estimated Closing Date Balance Sheet and the Post -Closing Balance Sheet shall assume completion of and give effect to the transactions contemplated hereby, including the matters described in Sections 1.3(a)-(d) hereof. Section 1.5. Time and Place of Closing. The closing (the "Closing") of the purchase and sale of the Securities and the other transactions contemplated by this Agreement shall be held at the offices of Proskauer Rose LLP, One International Place, Boston, Massachusetts, on the date that is five (5) business days following the date on which the conditions to Closing set forth in Sections 7.1(c) and 7.2(c) of this Agreement have been satisfied, or at such other time or 5 8019/12001-002 Current/9387690v9 such other place as Buyer and the Sellers' Representative may mutually determine. The date on which the Closing actually occurs is sometimes referred to herein as the "Closing Date." Section 1.6. Deliveries at Closing. (a) At the Closing, the Sellers or the Company, as applicable, will deliver or cause to be delivered to Buyer the following: (i) stock certificates evidencing all of the Securities that are shares of stock, free and clear of all Encumbrances, other than Encumbrances resulting from Buyer's ownership of such Securities, in each case duly endorsed in blank or accompanied by stock powers duly executed in blank, and with respect to the Warrants, the original warrant agreement together with an assignment instrument in respect thereof, or if such stock certificates or original warrant agreements are not then available, affidavits of loss in lieu thereof; (ii) such minute books and stock transfer books of the Company and its Subsidiaries (as defined below) as are in the Company's possession; (iii) a certification of non -foreign status meeting the requirements of Treasury Regulation Section 1.1445-2(b)(2), duly executed and acknowledged, substantially in the form of the sample certificates set forth in Treasury Regulation Section 1.1445-2(b)(2)(iv) for each Seller; and (iv) each of the certificates, instruments and other documents required to be delivered at the Closing pursuant to Section 7.2 hereof. (b) At the Closing, Buyer will deliver or cause to be delivered the following: (i) the Purchase Price (less the Escrow Deposit and the payments contemplated in Section 1.3 hereof) by wire transfer of immediately available funds to an account specified in writing by the Sellers' Representative at least two (2) days prior to the Closing Date; (ii) the Escrow Deposit to the Escrow Agent by wire transfer of immediately available funds; (iii) the payments contemplated in Section 1.3 hereof; and (iv) each of the certificates and other documents required to be delivered at the Closing pursuant to Section 7.1 hereof. Section 1.7. Sellers' Representative. (a) By the execution and delivery of this Agreement, each Seller hereby irrevocably constitutes and appoints Housatonic Management Company, Inc. as 6 8019/12001-002 Current/9387690v9 his, her or its true and lawful agent and attorney -in -fact (the "Sellers' Representative"), with full power of substitution to act in such Seller's name, place and stead with respect to all transactions contemplated by and all terms and provisions of this Agreement, and to act on such Seller's behalf in any dispute, Iitigation or arbitration involving this Agreement, and to do or refrain from doing all such further acts and things, and execute all such documents as the Sellers' Representative shall deem necessary or appropriate in connection with the transactions contemplated by this Agreement, including, without limitation, the power: (i) to waive any condition to the obligations of such Seller to consummate the transactions contemplated by this Agreement; (ii) to execute and deliver all ancillary agreements, certificates and documents, and to make representations and warranties therein, on behalf of such Seller which the Sellers' Representative deems necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement; (iii) to receive on behalf of, and to distribute (after payment of (A) any unpaid expenses and liabilities chargeable to the Sellers or the Company prior to the Closing in connection with the transactions contemplated by this Agreement, including Section 1.3 hereof, and (B) amounts payable by the Sellers pursuant to Section 1.4), all amounts payable to such Seller under the terms of this Agreement; (iv) to do or refrain from doing any further act or deed on behalf of such Seller which the Sellers' Representative deems necessary or appropriate in its sole discretion relating to the subject matter of this Agreement, as fully and completely as such Seller could do if personally present; (v) to amend this Agreement on behalf of the Sellers; and (vi) to replace the Seller's Representative if such Person resigns. (b) The appointment of the Sellers' Representative shall be deemed coupled with an interest and shall be irrevocable, and Buyer, its affiliates and any other Person may conclusively and absolutely rely, without inquiry, upon any action of the Sellers' Representative on behalf of the Sellers in all matters referred to herein. All notices delivered by Buyer or the Company (following the Closing) to the Sellers' Representative (whether pursuant hereto or otherwise) for the benefit of the Sellers shall constitute notice to the Sellers. The Sellers' Representative shall act for the Sellers on all of the matters set forth in this Agreement in the manner the Sellers' Representative believes to be in the best interest of the Sellers and consistent with its obligations under this Agreement, but the Sellers' Representative shall not be responsible to the Sellers for any loss or damages it or they may suffer by reason of the performance by the Sellers' 7 8019/12001-002 Current9387690v9 Representative of its duties under this Agreement, other than loss or damage arising from the Sellers' Representative's gross negligence or willful violation of the law. (c) Each Seller agrees to indemnify and hold harmless the Sellers' Representative from any loss, damage or expense arising from the performance of its duties as the Sellers' Representative hereunder, including, without limitation, the cost of legal counsel retained by the Sellers' Representative on behalf of the Sellers, but excluding any loss or damage arising from the Sellers' Representative's gross negligence or willful violation of the law. (d) All actions, decisions and instructions of the Sellers' Representative taken, made or given pursuant to the authority granted to the Sellers' Representative pursuant to this Section 1.7 shall be conclusive and binding upon each Seller, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. (e) The provisions of this Section 1.7 are independent and severable, shall constitute an irrevocable power of attorney, coupled with an interest and surviving death or dissolution, granted by the Sellers to the Sellers' Representative and shall be binding upon the executors, heirs, legal representatives, successors and assigns of each such Seller. Article II - REPRESENTATIONS AND WARRANTIES OF'LIM COMPANY The Company hereby makes to Buyer the representations and warranties contained in this Article II. Section 2.1. Existence; Good Standing; Authority. (a) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of Connecticut. The Company has all requisite corporate power and authority to own, operate, lease and encumber its properties and carry on its business as currently conducted. Except as set forth on Schedule 2.1(a), the Company is duly licensed or qualified to do business as a foreign corporation under the laws of each other jurisdiction in which the character of its properties or in which the transaction of its business makes such qualification necessary, except where the failure to be so licensed or qualified would not, individually or in the aggregate, have a Material Adverse Effect. The copies of the Company's Charter and by-laws, each as amended to date and made available to Buyer's counsel, are complete and correct, and no amendments thereto are pending. (b) The Company has the corporate power and authority to execute and deliver this Agreement and to perform its obligations hereunder. The execution and delivery of this Agreement, the performance by the Company of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite corporate action on the part of the Company. This Agreement 8 8019/12001-002 Current19387690v9 has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery of this Agreement by Buyer, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general equitable principles. Section 2.2. Capitalization. As of the date of this Agreement, the authorized, issued and outstanding capital stock of the Company is set forth on Schedule 2.2. All of the issued and outstanding shares of capital stock of the Company are duly authorized, validly issued, fully paid and nonassessable. As of the date of this Agreement, except as set forth on Schedule 2.2, there are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of the Company or securities convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire, any such additional shares, nor is the Company committed to issue any such option, warrant, right or security. Except as set forth on Schedule 2.2, there are no agreements or understandings to which the Company is a party with respect to the voting of any shares of capital stock of the Company or which restrict the transfer of any such shares. Except as set forth on Schedule 2.2, there are no outstanding contractual obligations of the Company to repurchase, redeem or otherwise acquire any shares of capital stock, other equity interests or any other securities of the Company. Except as set forth on • Schedule 2.2, the Company is not under any obligation by reason of any agreement to register the offer and sale or resale of any of its securities under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the "Securities Act"). Section 2.3. Subsidiaries. (a) The Company's subsidiaries and investments in other Persons are listed on Schedule 2.3(a) (collectively, the "Subsidiaries" and each a "Subsidiary"). Except as set forth on Schedule 2.3(a), the Company owns directly or indirectly each of the outstanding shares of capital stock or other equity interest of each of the Subsidiaries and there are no outstanding options, warrants or other rights of any kind to acquire any additional shares of capital stock of any Subsidiary or securities convertible into or exchangeable for, or which otherwise confer on the holder thereof any right to acquire, any such additional shares, nor is any Subsidiary committed to issue any such option, warrant, right or security. Except as set forth on Schedule 2.3(a), neither the Company nor any Subsidiary owns directly or indirectly any interest or investment (whether equity or debt) in any Person (other than investments in short-term investment securities). (b) Each of the Subsidiaries is a corporation, partnership or limited liability company duly incorporated or organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and has all requisite corporate power and authority to own, operate, lease and encumber its,properties and carry on its business as currently conducted, except as would not, individually or in the aggregate, have a Material Adverse Effect. Each such Subsidiary is duly licensed or qualified to do business as a foreign corporation, partnership or limited liability company, as applicable, in each other jurisdiction in which the character of its properties or in which the transaction of its business makes such qualification necessary, except where 9 8019/12001-002 Current/9387690v9 the failure to be so licensed or qualified would not, individually or in the aggregate, have a Material Adverse Effect. The copies of the organizational documents of each such Subsidiary, in each case as amended to date and made available to Buyer's counsel, are complete and correct, and no amendments thereto are pending. Section 2.4. No Conflict Neither the execution and delivery by the Company or any Seller of this Agreement and the other agreements, documents and instruments contemplated hereby, nor the consummation by the Company or any Seller of the transactions in accordance with the terms hereof and thereof, conflicts with or results in a breach of any provisions of the Charter or by-laws of the Company or the organizational documents of any Subsidiary. Except as set forth on Schedule 2.4, and assuming the consents, approvals and authorizations contemplated by Section 2.7 are obtained, the execution and delivery by the Company and each Seller of this Agreement and the other agreements, documents and instruments contemplated hereby and the consummation by the Company and each Seller of the transactions in accordance with the terms hereof and thereof will not violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, lease, contract or other agreement to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries or any of their respective properties is bound, except, in each case, as would not, individually or in the aggregate, have a Material Adverse Effect or would become applicable as a result of the business or activities in which Buyer proposes to be engaged or as a result of any acts or omissions by, or the status of any facts pertaining to, Buyer. Section 2.5. Financial Statements; Liabilities. (a) The Company has delivered to Buyer the following financial statements, copies of which are attached hereto as Schedule 2.5 (collectively, the "Financial Statements"): (i) Audited consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2005, and consolidated statements of income and retained earnings and statements of cash flows for such year then ended; (ii) Unaudited adjusted consolidated balance sheet of the Company and its Subsidiaries as of December 31, 2006 (the "Base Balance Sheet"); and (iii) Unaudited adjusted consolidated statements of income and retained earnings and statements of cash flows of the Company and its Subsidiaries for the year ended December 31, 2006. Subject to the absence of footnotes and year-end audit adjustments with respect to any unaudited Financial Statements, the Financial Statements have been prepared in accordance with GAAP consistently applied in accordance with the Company's past practices, policies and procedures, and present fairly in all material respects the consolidated financial condition, results of operations and cash flows of the Company. 10 8019/12001-002 Current/9387690 (b) Except for liabilities which are not reasonably likely to exceed $100,000 individually, or $250,000 in the aggregate, the Company and its Subsidiaries have no liabilities, past, present or deferred, accrued or unaccrued, fixed, absolute, contingent or other, except as (i) stated or adequately reserved against on the Base Balance Sheet or the notes thereto, (ii) reflected on Schedule 2.5 or the other Schedules furnished to Buyer hereunder, or (iii) incurred after the date of the Base Balance Sheet in the ordinary course of business consistent with past practices except, in respect of this clause (iii), for liabilities which are not reasonably likely to have, individually or in the aggregate, a Material Adverse Effect. Section 2.6. Absence of Certain Changes. Except as set forth on Schedule 2.6, from the date of the Base Balance Sheet to the date of this Agreement, the Company and its Subsidiaries have operated the business in the ordinary course of business consistent with past practices and there has not been any: (a) change in the Company's authorized or issued capital stock; grant of any option, right to purchase or similar right regarding the capital stock of the Company; purchase, redemption, retirement, or other acquisition by the Company of any such capital stock; or declaration or payment of any dividend or other distribution or payment in respect of the capital stock of the Company; (b) amendment to the Charter or by-laws of the Company, or amendment to the organizational documents of any Subsidiary; (c) payment of any bonuses, or material increase in salaries or other compensation, by the Company or any of its Subsidiaries to any of their respective directors, officers, or employees, except for bonus awards and increases in salaries made in the ordinary course of business; (d) damage to or destruction or loss of any asset or property of the Company or any of its Subsidiaries to the extent not covered by insurance and which has had a Material Adverse Effect; or (e) material change in the accounting methods or principles, including for Tax purposes, used by the Company and its Subsidiaries, other than (i) write -downs or write-offs in the value of assets as required by GAAP, or (ii) such adjustments as may be required by GAAP as a result of the transactions contemplated by this Agreement. Section 2.7. Consents and Approvals. (a) To the Company's knowledge, except as set forth on Schedule 2.7(a), the execution, delivery and performance of this Agreement by the Company and the Sellers will not, as of the Closing Date, require any consent, approval, authorization or other action by, or filing with or notification to, any federal, state, local, or any foreign government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body (a "Governmental Authority"), except (i) the notification requirements of the Hart-Scott-Rodino Antitrust Improvements Act of 11 8019112001-002 Current/9387690v9 1976, as amended (the "HSR Act"), if applicable, (ii) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not, individually or in the aggregate, have (A) a Material Adverse Effect or (B) a material adverse effect on the ability of the Company to perform its obligations under this Agreement, and (iii) as may be necessary as a result of any facts or circumstances relating solely to Buyer (including, without limitation, its sources of financing). (b) To the Company's knowledge, except as set forth on Schedule 2.7(b), the execution, delivery and performance of this Agreement by the Company will not, require any third -party consents, approvals, authorizations or actions, except where failure to obtain such consents, approvals, authorizations or actions would not, individually or in the aggregate, have (i) a Material Adverse Effect or (ii) a material adverse effect on the ability of the Company to perform its obligations under this Agreement. Section 2.8. Litigation. Except as set forth on Schedule 2.8, as of the date of this Agreement (a) there is no litigation, action, suit, proceeding, claim, arbitration or investigation pending or, to the Company's knowledge, threatened in writing against the Company or any of its Subsidiaries which, if adversely determined, individually or in the aggregate, with all such other litigation, actions, suits, proceedings, claims, arbitrations or investigations, would have a Material Adverse Effect nor, (b) to the knowledge of the Company, has there occurred any event on the basis of which any such claim may be asserted. Section 2.9. Taxes. (a) Except as set forth on Schedule 2.9 or as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect: (i) The Company and its Subsidiaries have timely filed or been included in, or will timely file or be included in, all material Tax Returns required to be filed by them or in which they are to be included with respect to Taxes for any period ending on or before the date of this Agreement, or with respect to the period between the date hereof and the Closing, on or before the Closing, taking into account any extension of time to file granted to or obtained on behalf of the Company or any of its Subsidiaries; (ii) The Company and its Subsidiaries have paid, or caused to be paid, all Taxes required to be so paid prior to the date of this Agreement, or with respect to the period between the date hereof and the Closing, on or before the Closing, or have made provision, in accordance with GAAP, for all Taxes owed or accrued through the date of the Base Balance Sheet; (iii) Neither the Internal Revenue Service (the "IRS") nor any other Governmental Authority is asserting as of the date of this Agreement by written notice to the Company or any of its Subsidiaries or, to the Company's knowledge, threatening as of the date of this Agreement to assert against the 12 8019112001-002 Current19387690v9 Company or its Subsidiaries, any deficiency or claim for any material amount of additional Taxes; (iv) Neither the Company nor any of its Subsidiaries has constituted either a "distributing corporation" or a "controlled corporation" (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 or Section 356 of the Code; (v) Neither the Company nor any of its Subsidiaries is a party to, is bound by, or has any obligation under any agreement providing for the allocation or sharing of Taxes; and (vi) To the Company's knowledge, no federal, state, local or foreign audits or other administrative proceedings or court proceedings are pending as of the date of this Agreement with regard to any Taxes or Tax Returns of the Company or any of its Subsidiaries and neither the Company nor any of its Subsidiaries has received a written notice prior to the date of this Agreement of any actual or threatened audits or proceedings or is otherwise aware of any such audits or proceedings. (b) For the purposes of this Agreement: (i) "Taxes" shall mean any and all taxes, charges, fees, levies or other assessments, imposed by the IRS or any taxing authority, and such term shall include any interest whether paid or received, fines, penalties or additional amounts attributable to, or imposed upon, or with respect to, any such taxes, charges, fees, levies or other assessments; and (ii) "Tax Returns" shall mean any report, return, document or other filing required to be supplied to any taxing authority or jurisdiction (foreign or domestic) with respect to Taxes. (c) The representations and warranties set forth in this Section 2.9 shall constitute the only representations and warranties by the Company with respect to Taxes. Section 2.10. Employee Benefit Plans. With respect to all the employee benefit plans, programs and arrangements currently maintained for the benefit of any current or former employee, officer or director of the Company and its Subsidiaries (the "Benefit Plans"), except for such matters as, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect or as set forth on Schedule 2.10, (a) each Benefit Plan and any related trust intended to be qualified under Sections 401(a) and 501(a) of the Code, has received a favorable determination letter from the IRS that it is so qualified, (b) each Benefit Plan has been operated in accordance with its terms and requirements of applicable law, (c) no Benefit Plan is subject to Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), or is a multi -employer plan within the meaning of Section 3(37) of ERISA. The 13 8019/12001-002 Currentl9387690v9 Seller has made available to Buyer true and complete copies of each Benefit PIan. The representations and warranties set forth in this Section 2.10 shall constitute the only representations and warranties by the Company with respect to Benefit Plans. Section 2.11. Real and Personal Property. (a) Neither the Company nor any Subsidiary owns any real property. Schedule 2.11(a) sets forth a list and description of all real properties leased by the Company or any of its Subsidiaries (the "Leased Real Property"). All leases relating to Leased Real Property are identified on Schedule 2.11(a) (the "Leases") and true and complete copies thereof have been made available to Buyer. With respect to each Lease listed on Schedule 2.11(a), except as would not, individually or in the aggregate, have a Material Adverse Effect: (i) the Company or a Subsidiary, as applicable, have good, valid and enforceable leasehold interests to the leasehold estate in the Leased Real Property granted to the Company or such Subsidiary, as applicable, pursuant to each pertinent Lease, subject to applicable bankruptcy, insolvency, moratorium or other similar laws relating to creditors' rights and general principles of equity; (ii) each of said Leases has been duly authorized and executed by the Company or such Subsidiary, as applicable, and is in full force and effect; and (iii) to the Company's knowledge, neither the Company nor such Subsidiary is in default under any of said Leases, nor, to the Company's knowledge, has any event occurred which, with notice or the passage of time, or both, would give rise to such a default by the Company or such Subsidiary, as applicable. (b) To the Company's knowledge, except as set forth on Schedule 2.11(b) or as specifically disclosed in the Base Balance Sheet, and except with respect to leased personal property, the Company and each of its Subsidiaries has good title to all of their respective tangible personal property and assets shown on the Base Balance Sheet or acquired after the date of the Base Balance Sheet, free and clear of any mortgage, pledge, lien, conditional sale agreement, security title, encumbrance or other charge (collectively, "Encumbrances"), except for (i) assets which have been disposed of to nonaffiliated third parties since the Base Balance Sheet in the ordinary course of business, (ii) Encumbrances reflected in the Base Balance Sheet, (iii) Encumbrances of record or imperfections of title which are not, individually or in: the aggregate, material in character, amount or extent and which do not materially detract from the value or materially interfere with the present or presently contemplated use of the assets subject thereto or affected thereby or which would not otherwise, individually or in the aggregate, have a Material Adverse Effect, and (iv) Encumbrances for current Taxes not yet due and payable and personal property ("Permitted Encumbrances"). 14 8019/12001-002 Current/9387690v9 (c) The representations and warranties set forth in this Section 2.11 shall constitute the only representations and warranties by the Company with respect to Real Property. Section 2.12. Labor and Employment Matters. (a) To the Company's knowledge, except as set forth on Schedule 2.12(a) and as otherwise would not, individually or in the aggregate, have a Material Adverse Effect, the Company and each of its Subsidiaries is now and has been since January 1, 2006, in compliance with all federal and state laws respecting employment and employment practices, terms and conditions of employment, and wages and hours, including but not limited to ERISA, the Code, Title VII of the Civil Rights Act of 1964, as amended, the Equal Pay Act of 1967, as amended, the Age Discrimination in Employment Act of 1967, as amended, the Americans with Disabilities Act, as amended, and the related rules and regulations adopted by those federal agencies responsible for the administration of such laws, and there are no arrearages in the payment of wages, social security tax or any other employment related levy or tax. (b) Except as set forth on Schedule 2.12(b), neither the Company nor any Subsidiary is a party to or otherwise bound by any collective bargaining agreement, contract or other agreement or understanding with a labor union or labor organization. Except as set forth on Schedule 2.12(b) and as otherwise would not, individually or in the aggregate, have a Material Adverse Effect, since January 1, 2006, neither the Company nor any Subsidiary has been subject to any charge, demand, petition or representation proceeding seeking to compel, require or demand it to bargain with any labor union or labor orgarii7ation nor, as of the date of this Agreement, is there pending or, to the Company's knowledge, since January 1, 2006, has there been any threatened, any material labor strike, dispute, walkout, work stoppage,slow-down or lockout involving the Company or any Subsidiary. (c) The representations and warranties set forth in this Section 2.12 shall constitute the only representations and warranties of the Company with respect to employment and labor matters. Section 2.13. Contracts and Commitments. Except as set forth in Schedule 2.13, neither the Company nor any Subsidiary is a party to: (a) any partnership agreements or joint venture agreements; (b) any employment, severance or consulting agreements with any director, officer or employee either (i) requiring an annual payment of cash compensation in excess of $100,000, or (ii) that is not terminable by the Company at any time for any reason without notice (collectively, including the Executive Employment Agreement, dated as of August 1, 1993, by and between the Company and Adam J. Wasserstein (as amended or modified to date) and the Executive Employment Agreement, dated as of August 1, 1993, by and between the Company and James W. Ratliff (as amended or modified to date), the "Employment Agreements"); 15 8019/12001-002 Current/9387690v9 (c) any agreements with another Person limiting or restricting the ability of the Company or any Subsidiary or any of their Affiliates to enter into or engage in any market or line of business anywhere in the world; (d) any other material agreement (or group of related agreements) the performance of which involves consideration in excess of $100,000, other than agreements entered into in the ordinary course of business; or (e) an agreement which involves indebtedness for money borrowed in excess of $100,000. Section 2.14. Intellectual Property. To the Company's knowledge, except as set forth on Schedule 2.14, the Company or a Subsidiary is the owner of, or has the right to use, all items of intangible property, including, without limitation, patents, registered trademarks and service marks, trade names, unregistered trademarks and service marks, copyrights and other intellectual property rights (collectively, the "intellectual Property Rights"), as are necessary in connection with the business of the Company and its Subsidiaries as currently conducted taken as a whole, except where the failure to own or have the right to use such Intellectual Property Rights would not, individually or in the aggregate, have a Material Adverse Effect. The representations and warranties set forth in this Section 2.14 shall constitute the only representations and warranties by the Company with respect to Intellectual Property Rights. Section 2.15. Environmental Matters (a) To the Company's knowledge, the Company and its Subsidiaries are in compliance with Environmental Laws, except for such noncompliance as would not, individually or in the aggregate, have a Material Adverse Effect. To the Company's knowledge, neither the Company nor any Subsidiary has received any written notice, report or other information regarding any actual or alleged material violation of Environmental Laws, or any material liabilities or potential material liabilities (whether accrued, absolute, contingent, unliquidated or otherwise), including any investigatory, remedial or corrective obligations, relating to the Company or its Subsidiaries or their facilities arising under Environmental Laws, the subject of which would have a Material Adverse Effect. (b) "Environmental Laws" means all applicable federal, state and local statutes or laws, judgments, orders, regulations, licenses, permits, rules and ordinances relating to pollution or protection of health, safety or the environment, including, but not limited to the Federal Water Pollution Control Act (33 U.S.C. §1251 et IN.), Resource Conservation and Recovery Act (42 U.S.C. §6901 et. seq.), Safe Drinking Water Act (42 U.S.C. §300(f) et. seq.), Toxic Substances Control Act (15 U.S.C. §2601 et seq.), Clean Air Act (42 U.S.C. §7401 et. seq.), Comprehensive Environmental Response, Compensation and Liability Act.(42 U.S.C. §9601 et seq.), and other similar state and local statutes. 16 8019/12001.002 CurrenU9387690v9 (c) The representations and warranties set forth in this Section 2.15 shall constitute the only representations and warranties by the Company with respect to environmental matters. Section 2.16. Insurance. Schedule 2.16 sets forth a true and correct summary of the insurance policies held by, or for the benefit of, the Company and its Subsidiaries, including the underwriter of such policies and the amount of coverage thereunder, since January 1, 2006. Section 2.17. Brokers. Except for the fees payable to Robert W. Baird & Co., which fees shall be paid by the Company at Closing, neither the Company nor any Subsidiary has incurred or become liable for any broker's commission or finder's fee relating to or in connection with the transactions contemplated by this Agreement. Section 2.18. Compliance with Laws Since January 1, 2006, neither the Company nor any Subsidiary has been in default or violation of any law, statute, ordinance, regulation, rule, order, judgment or decree applicable to the Company or such Subsidiary or by which any property or asset of the Company or its Subsidiaries is bound, except for any such conflicts, defaults or violations that would not, individually or in the aggregate, have a Material Adverse Effect. Notwithstanding the foregoing, the representations and warranties in this Section 2.18 do not apply to matters covered by Sections 2.9 ("Taxes"), 2.10 ("Employee Benefit Plans"), 2.12 ("Employment and Labor Matters"), 2.14 ("Intellectual Property"), and 2.15 ("Environmental Matters"), which matters are covered exclusively in such Sections. Section 2.19. Disclaimer of Other Representation and Warranties; Knowledge; Disclosure. (a) None of the Company, its representatives or the Sellers have made any representations or warranties, express or implied, of any nature whatsoever relating to the Company or the business of the Company and its Subsidiaries or otherwise in connection with the transactions contemplated hereby, other than those representations and warranties expressly set forth in this Article II and Article III hereof. (b) Without limiting the generality of the foregoing, none of the Company, such representatives of the Company or the Sellers has made, and shall not be deemed to have made, any representations or warranties in the materials relating to the business of the Company and its Subsidiaries made available to Buyer or in any presentation of the business of the Company and its Subsidiaries in connection with the transactions contemplated hereby, and no statement contained in any of such materials or made in any such presentation shall be deemed a representation or warranty hereunder or otherwise. It is understood that any cost estimates, projections or other predictions, any data, any financial information or any memoranda or offering materials or presentations, including but not limited to, that certain Confidential Information Memorandum made available by the Company and its representatives, are not and shall not be deemed to be or to include representations or warranties oldie Company. (c) Whenever a representation or warranty made by the Company herein refers to the knowledge of the Company, such knowledge shall be deemed to 17 8019/12001-002 Currentl9387690v9 consist only of the actual knowledge on the date hereof and on the Closing Date, as applicable, of A.J. Wasserstein, John Pavlovich and/or Scott Brabant. (d) Notwithstanding anything to the contrary contained in this Agreement or in any of the Schedules, any information disclosed in one Schedule shall be deemed to be disclosed in all Schedules. Certain information set forth in the Schedules is included solely for informational purposes and may not be required to be disclosed pursuant to this Agreement. The disclosure of any information shall not be deemed to constitute an acknowledgment that such information is required to be disclosed in connection with the representations and warranties made by the Company in this Agreement or that such information is material, nor shall such information be deemed to establish a standard of materiality, nor shall it be deemed an admission of any liability of, or concession as to any defense available to, the Company. Article III - SEVERAL REPRESENTATIONS AND WARRANTIES OF SELLERS Each Seller hereby severally, and not jointly, makes to Buyer each of the representations and warranties set forth in this Article III with respect to such Seller. Section 3.1. Securities. Such Seller owns of record and beneficially the number and class, series or type of the Securities set forth opposite such Seller's name in Exhibit A attached hereto. Such Securities are, and when delivered by such Seller to Buyer pursuant to this Agreement will be, free and clear of any and all Encumbrances, other than Encumbrances resulting from this Agreement and Securities Laws restricting transfer of said Securities. Section 3.2. Authority. (a) Such Seller has full right, power and authority under its governing documents, if any and as applicable, to execute and deliver this Agreement and each agreement, document and instrument to be executed and delivered by or on behalf of such Seller pursuant to this Agreement and to carry out the transactions contemplated hereby and thereby. This Agreement and each agreement, document and instrument executed and delivered by such Seller pursuant to this Agreement constitutes a valid and binding obligation of such Seller, enforceable in accordance with their respective terms (except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general equitable principles), and has been duly authorized by all necessary entity action of each Seller which is a corporation, limited partnership, limited liability company or other Person not an individual, and each such Seller has full power and authority to transfer, sell and deliver the Securities to Buyer pursuant to this Agreement. (b) Neither the execution and delivery by such Seller of this Agreement and the other agreements, documents and instruments contemplated hereby, nor the consummation by such Seller of the transactions in accordance with the terms hereof and thereof, conflicts with or results in a breach of any provisions of such Seller's 18 8019/12001-002 Current9387690v9 organizational documents, as applicable. The execution and delivery by such Seller of this Agreement and the other agreements, documents and instruments contemplated hereby, and the consummation by such Seller of the transactions in accordance with the terms hereof and thereof, will not violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, lease, contract or other agreement to which such Seller is a party, or by which such Seller or any of its properties is bound, except, in each case, as would not have a material adverse effect on the ability of such Seller to perform its obligations under this Agreement. Article IV - REPRESENTATIONS AND WARRANTIES OF BUYER Buyer hereby makes to the Company and the Sellers the representations and warranties in this Article N. Section 4.1. Existence; Good Standing; Authority. (a) Buyer is a corporation, validly existing and in good standing under the laws of Delaware. Buyer is duly licensed or qualified to do business as a foreign corporation under the laws of any other jurisdiction in which the character of its properties or in which the transaction of its business makes such qualification necessary, except where the failure to be so licensed or qualified would not, individually or in the aggregate, have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement. Buyer has all requisite corporate power and authority to own, operate, lease and encumber its properties and carry on its business as currently conducted. (b) Buyer has the corporate power and authority to execute and deliver this Agreement and each agreement, document and instrument to be executed and delivered by or on behalf of Buyer pursuant to this Agreement and to carry out the transactions contemplated hereby and thereby. The execution and delivery of this Agreement, the performance by Buyer of its obligations hereunder and the consummation of the transactions contemplated hereby have been duly authorized by all requisite [corporate] action on the part of Buyer. This Agreement has been duly executed and delivered by Buyer and, assuming the due authorization, execution and delivery of this Agreement by the Sellers and the Company, this Agreement constitutes a legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally and by general equitable principles. Section 4.2. No Conflict. Neither the execution and delivery by Buyer of this Agreement and the other agreements, documents and instruments contemplated hereby, nor the consummation by Buyer of the transactions in accordance with the terms hereof and thereof, conflicts with or results in a breach of any provisions of Buyer's certificate of incorporation or 19 8019112001-002 CunentF9387690v9 by-laws or other organizational documents, as applicable. Except as set forth on Schedule 4.2, the execution and delivery by Buyer of this Agreement and the other agreements, documents and instruments contemplated hereby, and the consummation by Buyer of the transactions in accordance with the terms hereof and thereof, will not violate, or conflict with, or result in a breach of any provision of, or constitute a default (or an event which, with notice or lapse of time or both, would constitute a default) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, deed of trust, lease, contract or other agreement to which Buyer is a party, or by which Buyer or any of its properties is bound, except, in each case, as would not have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement. Section 4.3. Consents and Approvals. (a) Except as set forth on Schedule 4.3(a), the execution, delivery and performance of this Agreement by Buyer will not, as of the Closing Date, require any consent, approval, authorization or other action by, or filing with or notification to, any Governmental Authority, except (i) the notification requirements of the HSR Act, if applicable, (ii) where failure to obtain such consent, approval, authorization or action, or to make such filing or notification, would not have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement, and (iii) as may be necessary as a result of any facts or circumstances relating solely to the Company or the Sellers. (b) To Buyer's knowledge, except as set forth on Schedule 4.3(b), the execution, delivery and performance of this Agreement by Buyer will not, as of the Closing Date, require any third -party consents, approvals, authorizations or actions, except where failure to obtain such consents, approvals, authorizations or actions would not have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement. Section 4.4. Litigation. As of the date of this Agreement, there is no litigation, action, suit, proceeding, claim, arbitration or investigation pending or, to Buyer's knowledge, threatened in writing, against Buyer, as to which there is a reasonable likelihood of an adverse determination and which, if adversely determined (a) would delay, hinder or prevent the consummation of the transactions contemplated by this Agreement by Buyer, or (b) would not have in the aggregate a material adverse effect on the ability of Buyer to perform its obligations under this Agreement. Section 4.5. Financing. Buyer has and will have sufficient funds to purchase the Securities, to pay the Purchase Price, pay-off the Indebtedness and pay Transaction Expenses, in each case on the terms and conditions contemplated by this Agreement. Buyer has heretofore furnished the Company and the Sellers' Representative with sufficient evidence, including true and complete copies of balance sheets of Buyer and/or a financing commitment from Buyer's third party financing sources as are attached hereto as Schedule 4.5, of its ability to purchase the Securities, make such other payments in each case on the terms and conditions contemplated by this Agreement. Buyer acknowledges and agrees that Buyer's performance of its obligations under this Agreement is not in any way contingent upon the availability of financing to Buyer. 20 8019/12001.002 CurrenN9387690v9 Section 4.6. Brokers. Buyer has not incurred or become liable for any broker's commission or finder's fee relating to or in connection with this Agreement or the transactions contemplated hereby. Section 4.7. Investment Intent Buyer is acquiring the Securities solely for the purpose of investment and not with a view to, or for offer or sale in connection with, any distribution thereof. Buyer acknowledges that the Securities to be acquired by Buyer pursuant to the transactions contemplated hereby have not been registered under the Securities Act or the securities laws of any state or other jurisdiction and cannot be disposed of unless they are subsequently registered under the Securities Act and the securities laws of any applicable state or other jurisdiction or an exemption from such registration is available. Section 4.8. Inspection; No Other Representations Buyer is an informed and sophisticated purchaser, and has engaged expert advisors, and together therewith and with its Affiliates is experienced in the evaluation and purchase of companies such as the Company and its Subsidiaries as contemplated hereunder. Buyer has undertaken such investigation and has been provided with and has evaluated such documents and information as it has deemed necessary to enable it to make an informed decision with respect to the execution, delivery and performance of this Agreement and the transactions contemplated hereby. Buyer has received access to all materials relating to the business of the Company and its Subsidiaries which it has requested and has been afforded the opportunity to obtain any additional information necessary to verify the accuracy of any such information or of any representation or warranty made by the Company and the Sellers hereunder or to otherwise evaluate the merits of the transactions contemplated hereby. Buyer acknowledges that the Company has given Buyer complete and open access to the key employees, documents and facilities of the Company and its Subsidiaries. The Company, the Sellers and their representatives have answered to Buyer's satisfaction all inquiries that Buyer or its representatives have made concerning the business of the Company and its Subsidiaries or otherwise relating to the transactions contemplated hereby. Buyer agrees to accept the Securities and the Company and its Subsidiaries in the condition they are in at the Closing based upon its own inspection, examination and determination with respect thereto as to all matters, and without reliance upon any express or implied representations or warranties of any nature, whether in writing, orally or otherwise, made by or on behalf of or imputed to the Company or its Sellers, except as expressly set forth in this Agreement. Without limiting the generality of the foregoing, Buyer acknowledges that neither the Company nor any of the Sellers makes any representation or warranty with respect to (a) any projections, estimates or budgets delivered to or made available to Buyer of future revenues, future results of operations (or any component thereof), future cash flows or future financial condition (or any component thereof) of the Company and its Subsidiaries•or the future business and operations of the Company and its Subsidiaries or (b) any other information or documents made available to Buyer or its counsel, accountants or advisors with respect to the Company its Subsidiaries or any of their respective businesses, assets, liabilities or operations, except as expressly set forth in Article II and Article III of this Agreement, as applicable. 21 8019/12001-002 Currant/9387690v9 Article V - CERTAIN COVENANTS OF BUYER, THE COMPANYAND THE SELLERS Section 5.1. Conduct of Business Prior to Closing The Company agrees that, between the date hereof and the Closing Date, it shall use and shall cause each of its Subsidiaries to use, commercially reasonable efforts to operate in the ordinary course of business, consistent with past practices, except as described in Schedule 5.1 or as otherwise contemplated by this Agreement. In furtherance of the foregoing, except as set forth in Schedule 5.1, the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to refrain from: (a) changing or introducing any method of management or operations except in the ordinary course of business and consistent with prior practices; (b) making any change to the Company's Charter or by-laws or the organizational documents of its Subsidiaries, or changing the authorized or issued capital stock or equity interests of the Company or any Subsidiary, (c) (i) declaring, setting aside or paying any dividend, making any other distribution in respect of its capital stock, shares or ownership interests, (ii) making any direct or indirect redemption, purchase or other acquisition of its stock or ownership interests or (iii) issuing, granting, awarding, selling, pledging, disposing of or encumbering or authorizing the issuance, grant, award, sale, pledge, disposition or encumbrance of any shares of, or securities convertible or exchangeable for, or options, warrants, calls, commitments or rights of any kind to acquire, any shares of its capital stock of any class thereof; (d) (i) prepaying any loans (if any) from its Sellers, officers or directors or any Person affiliated with any of the foregoing, (ii) making any change in its borrowing arrangements, (iii) modifying, amending or terminating any of its material contracts except in as specifically provided in this Agreement or in the ordinary course of business, or (iv) waiving, releasing or assigning any material rights or claims, other than in the ordinary course of business; (e) materially changing accounting policies or procedures, including for Tax purposes; (f) entering into, adopting or amending any employee benefit plan or any employment or severance agreement or arrangement (except with respect to normal increases in the ordinary course of business for employees who are not Affiliates), increasing in any manner the compensation or fringe benefits of, or materially modifying the employment terms of, its directors, officers or employees, agents or consultant generally or individually, or paying any bonus or other benefit to its directors, officers, employees, agents or consultants (except for existing obligations) or hire any new officers or any new employees, except, in each case, in the ordinary course of business; 22 8019/12001-002 CurrenU9387690v9 (g) other than in the ordinary course of business or in respect of the Indebtedness, creating, incurring or assuming any indebtedness for borrowed money (including capital leases); assuming or guaranteeing the obligations or liabilities of any other Person (other than the Company or another Subsidiary); or making any loans, advances or capital contributions to, or investments in, any other Person, other than out- of-pocket expenses advances to employees in the ordinary course of business; (h) selling, leasing, licensing or disposing of any assets or property (including any shares or other equity interests in any Subsidiary), other than sales of assets in the ordinary course of business; (i) mortgaging or pledging any of its property or assets or subject any such property or assets to any Encumbrance, other than with respect to the Indebtedness or Permitted Encumbrances; (j) making or committing to make any acquisition, or making any capital expenditure other than in the ordinary course of business; and (k) entering into any executory agreement, commitment or undertaking to do any of the activities prohibited by the foregoing provisions. Notwithstanding the foregoing, prior to the Closing the Company and its Subsidiaries shall be permitted to pay down existing Indebtednesses in the ordinary course of business. Notwithstanding anything herein to the contrary, (i) prior to June 11, 2007, the Company shall not, without the prior written consent of Buyer, acquire any corporation or business concern, or any portion or division thereof, whether by acquisition of assets, capital stock or otherwise, and (ii) from and after June 11, 2007 until the earlier of the Closing or the termination of this Agreement pursuant to Section 9.1 below, the Company shall not, without the prior written consent of Buyer, acquire any other corporation or business concern, or any portion of division thereof, whether by acquisition of assets, capital stock or otherwise, with an aggregate transaction value in excess of Three Million Dollars ($3,000,000). For the avoidance of doubt, from and after June 11, 2007, the Company may acquire any other corporation or business concern, or any portion or division thereof, whether by acquisition of assets, capital stock or otherwise, with an aggregate transaction value equal to or less than Three Million Dollars ($3,000,000) without the consent of Buyer or being in violation of this Section 5.1. Section 5.2. Access to Information. (a) Without undue disruption of its business, between the date of this Agreement and the Closing Date, the Company shall give Buyer and its representatives reasonable access upon reasonable notice and during times mutually convenient to Buyer and senior management of the Company to the facilities, properties, employees, books, and records of the Company and its Subsidiaries as from time to time may be reasonably requested. (b) Any such investigation by Buyer shall not unreasonably interfere with any of the businesses or operations of the Company and its Subsidiaries. Buyer 23 8019/12001-002 Current93876900 shall not, prior to the Closing Date, have any contact whatsoever with respect to the Company or any of its Subsidiaries or with respect to the transactions contemplated by this Agreement with any partner, lender, ground lessor, vendor, customer, supplier, employee or consultant of the Company or any of its Subsidiaries, except in consultation with the Company and the Sellers' Representative and then only with the express prior approval of the Company and the Sellers' Representative, which approval shall not be unreasonably withheld. All requests by Buyer for access or information shall be submitted or directed exclusively to an individual or individuals to be designated by the Company and the Sellers' Representative. Buyer shall not be permitted to conduct any invasive tests on any Leased Real Property without the prior written consent of the Company and the Sellers' Representative. Buyer agrees to indemnify the Company and the Sellers from and against any and all actual damages suffered by the Company, any of its Subsidiaries or the Sellers as a direct result of the actions of Buyer or its representatives with respect to any such investigations or inspections made by Buyer or its representatives. Section 5.3. Confidentiality. The parties shall adhere to the tenns and conditions of that certain Confidentiality Agreement dated January 17, 2007 by and between the Company and Buyer (the "Confidentiality Agreement"). Section 5.4. Re. uIatoryand Other Authorizations; Consents. (a) The Company and Buyer shall use their good faith commercially reasonable efforts to obtain the authorizations, consents, orders and approvals necessary for their execution and delivery of, and the performance of their obligations pursuant to, this Agreement. If required by the HSR Act and if the appropriate filing of a Pre -Merger Notification and Report Form pursuant to the HSR Act has not been filed prior to the date hereof, each party hereto agrees to make an appropriate filing of a Pre -Merger Notification and Report Form with respect to the transactions contemplated by this Agreement within five (5) business days after the date hereof and to supply promptly any additional information and documentary material that may be requested pursuant to the HSR Act. The parties hereto will not take any action that will have the effect of delaying, impairing or impeding the receipt of any required approvals and shall promptly respond to any requests for additional information from any Governmental Authority or filings in respect thereof. Buyer shall pay all filing and related fees in connection with any such filings which must be made by any of the parties under the HSR Act. Buyer hereby covenants and agrees to use its best efforts to secure termination of any waiting periods under the HSR Act, including without limitation, if necessary, promptly offering to sell any of its assets or business as may be necessary to secure such termination; provided, however, that before agreeing to any such sale Buyer shall be entitled to pursue legal action against, and negotiations with, any Governmental Authority to allow the transactions contemplated hereby to proceed without any such sale. (b) Buyer shall use its good faith commercially reasonable efforts to assist the Company in obtaining the consents of third parties listed in Schedule 2.7(b), including (i) providing to such third parties such financial statements and other financial 24 8019/12001-002 Current/9387690v9 information as such third parties may reasonably request, and (ii) executing agreements to effect the assumption of such agreements on or before the Closing Date. Section 5.5. Further Action. Each of the parties hereto shall use its respective commercially reasonable efforts to take or cause to be taken all appropriate action, do or cause to be done all things necessary, proper or advisable, and execute and deliver such documents.and other papers, as may be required to carry out the provisions of this Agreement and consummate and make effective the transactions contemplated by this Agreement. Section 5.6. Press Releases. The parties hereto will, and will cause each of their Affiliates and representatives to, maintain the confidentiality of this Agreement and will not, and will cause each of their Affiliates not to, issue or cause the publication of any press release or other public announcement with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the other parties hereto which consent shall not be unreasonably withheld; provided, however, that a party may, without the prior consent of the other parties hereto, issue or cause publication of any such press release or public announcement to the extent that such party reasonably determines, after consultation with outside legal counsel, such action to be required by law or by the rules of any applicable self -regulatory organization, in which event such party will use its commercially reasonable efforts to allow the other parties hereto reasonable time to comment on such press release or public announcement in advance of its issuance. Section 5.7. No Solicitation. (a) Except as otherwise provided herein, unless and until this Agreement shall have been terminated in accordance with its terms, the Company and the Sellers agree and covenant that neither the Company nor the Sellers shall, directly or indirectly, initiate, solicitor encourage any inquiries or the making or implementation of any proposal or offer with respect to a merger, acquisition, or similar transaction involving the purchase of the Company, all or substantially all of the assets of the Company and its Subsidiaries, or the Securities. (b) From the date of this Agreement until the earlier of the Closing or one year from the date of this Agreement, Buyer shall not, and shall ensure that its directors, officers, employees, Affiliates, and its agents, advisors or representatives engaged in connection with this transaction, shall not, directly or indirectly, (i) initiate or maintain any contact with any Representative (as defined in the Confidentiality Agreement) of the Company or any supplier or customer of the Company concerning the Company, the Evaluation Material, except with the express permission of the Company; and (ii) use the Evaluation Material to induce any customer of the Company to cease doing business with or reduce the volume of business it does with the Company. Section 5.8. Notice of Certain Facts. From the date of this Agreement until the Closing, Buyer, the Company and the Sellers' Representative shall promptly notify and inform the other of any material variance or incorrect statement in the representations and warranties contained in Article II or Article III of this Agreement discovered by Buyer, the Company or the Sellers, as the case may be, or any of their representatives or agents. 25 (1019/12001-002 Current/9387690v9 Article VI - ADDITIONAL COVENANTS Section 6.1. Conveyance Taxes. Buyer shall be liable for and shall hold the Company and the Sellers harmless against any transfer, value added, excise, stock transfer, stamp, recording, registration and any similar taxes that become payable in connection with the acquisition by Buyer of the Securities and other transactions contemplated hereby. Section 6.2. Books and Records Buyer shall, and shall cause the Company and each Subsidiary to, until the seventh anniversary of the Closing Date, retain all books, records and other documents pertaining to the business of the Company and its Subsidiaries in existence on the Closing Date and to make the same available for inspection and copying by the Sellers or any representative of the Sellers at the expense of the Sellers during the normal business hours of Buyer, the Company or such Subsidiary, as applicable, upon reasonable request and upon reasonable notice. No such books, records or documents shall be destroyed after the seventh anniversary of the Closing Date by Buyer, the Company or any Subsidiary, without first advising the Sellers' Representative in writing and giving the Sellers' Representative, on behalf of the Sellers, a reasonable opportunity to obtain possession thereof. Section 6.3. Officers' and Directors' Indemnification . The Company, the Sellers and Buyer agree that all rights to exculpation and indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, employees of the Company and its Subsidiaries ("Indemnified Persons") provided for in its Charter and by-laws and the organizational documents of each of its Subsidiaries, as applicable, as in effect as of the date hereof with respect to matters occurring prior to and through the Closing, and specifically including the transactions contemplated hereby, shall continue in full force and effect for a period of six (6) years from the Closing; provided, however, that all rights to indemnification in respect of any claims (each a "Claim") asserted or made within such period shall continue until the disposition of such Claim. Following the Closing, Buyer shall not, and shall not permit the Company or any Subsidiary to, amend or modify its Charter or by-laws or other organizational documents, as applicable, except as required by applicable law, if the effect of such amendment or modification would be to lessen or otherwise adversely affect the indemnification rights of such Indemnified Persons as provided therein, and Buyer shall cause the Company or any Subsidiary to advance expenses to each such Indemnified Person in connection with any proceeding involving such Indemnified Person to the fullest extent so permitted upon receipt of any undertaking required by law or in the Charter or by-laws of the Company or the organizational documents of such Subsidiary, as applicable. In the event that the Company or any Subsidiary transfers all or substantially all of its properties and assets to any Person, then and in each such case, proper provision shall be made so that the transferee of such properties or assets shall assume the obligations of the Company or such Subsidiary, as applicable, under this Section 6.3. Prior to the Closing, the Company shall purchase an extended reporting period endorsement under the Company's existing directors' and officers' liability insurance coverage for the Company's and its Subsidiaries' directors and officers in a form acceptable to the Company which shall provide such directors and officers with coverage for six (6) years following the Closing of not less than the existing coverage under, and have other terms not materially less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by the Company, and the parties shall maintain such policy in effect for such period. This Section 6.3 is intended to benefit each of the Indemnified 26 8019/12001-002 CurrenU9387690v9 Persons and their respective heirs and personal representatives, each whom shall be entitled to enforce the provisions hereof. Article VII - CONDITIONS TO CLOSING Section 7.1. Conditions to Oblifations of the Sellers. The obligations of the Sellers to consummate the transactions contemplated by this Agreement for the Closing shall be subject to the satisfaction or waiver by the Sellers' Representative, at or prior to the Closing, of each of the following conditions: (a) All covenants contained in this Agreement to be complied with by Buyer on or before the Closing shall have been complied with in all respects except where the failure to so comply would not have a material adverse effect on Buyer's ability to perform its obligations under this Agreement, and the Sellers' Representative, and the Company shall have received a certificate of Buyer to such effect signed by a duly authorized officer of Buyer, provided, however, that Buyer shall have complied with Section 1.6(b) in all respects. (b) Each of the representations and warranties of Buyer contained in Article IV shall be true and correct as of the Closing Date as though made on and as of the Closing Date, except as (i) would not, delay, hinder or prevent the consummation of the transactions contemplated by this Agreement by Buyer, or (ii) would not have in the aggregate a material adverse effect on Buyer or its ability to perform its obligations under this Agreement; and Buyer shall have delivered to the Company and the Sellers' . Representative a certificate of Buyer's President or Chief Financial Officer dated as of the Closing Date to the effect that the statements set forth in this Section 7.1(b) above are true and correct. (c) Any waiting period (and any extension thereof) under the HSR Act applicable to the transactions to be consummated at the Closing shall have expired or been terminated. (d) No Governmental Authority or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, injunction or other order (whether temporary, preliminary or permanent) that is in effect and has the effect of making the transactions contemplated by this Agreement for the Closing illegal or otherwise restraining or prohibiting consummation of such transactions. (e) No litigation, action, suit, proceeding, claim, arbitration or investigation shall be pending or threatened in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would have the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting consummation of such transactions. 27 8019/12001-002 Current19387690v9 Section 7.2. Conditions to Obligations of Buyer The obligations of Buyer to consummate the transactions contemplated by this Agreement for the Closing shall be subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions: (a) All covenants contained in this Agreement to be complied with by the Company and the Sellers on or before the Closing shall have been complied with in all material respects, except where the failure to so comply would not, individually or in the aggregate, have (i) a Material Adverse Effect or (ii) a material adverse effect on the Company's or the Sellers' ability to perform their obligations under this Agreement, and Buyer shall have received a certificate of the Company to such effect signed by a duly authorized officer thereof; provided, however, that the Company and the Sellers shall have complied with Section 1.6(a) in all respects. (b) Each of the representations and warranties of the Company and Sellers contained in Article 11 and Article III hereof shall be true and correct as of the Closing Date as though made on and as of the Closing Date, except for such inaccuracies as would not, in the aggregate, have a Material Adverse Effect; and the Company shall have delivered to Buyer a certificate of the Company's President and Chief Financial Officer dated as of the Closing Date to the effect that the statements set forth in this Section 7.2(b) above are true and correct. (c) Any waiting period (and any extension thereof) under the HSR Act applicable to the transactions to be consummated at the Closing shall have expired or been terminated. (d) No Governmental Authority or court of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any statute, rule, regulation, injunction or other order (whether temporary, preliminary or permanent) which is in effect and has the effect of making the transactions contemplated by this Agreement for the Closing illegal or otherwise restraining or prohibiting consummation of such transactions. (e) The Sellers and the Company, as applicable, shall have received the authorizations, orders, approvals and consents of Governmental Authorities and third parties described in Schedules 2.7(a) and 2.7(b) in form and substance reasonably satisfactory to Buyer (subject to Section 5.4 above), except where the failure to so receive would not have (A) a Material Adverse Effect or (B) a material adverse effect on (1) the Company's or the Sellers' ability to perform their obligations under this Agreement, or (2) the Company's obligations to perform or legal rights under a Lease. (f) No litigation, action, suit, proceeding, claim, arbitration or investigation shall be pending or threatened in writing wherein an unfavorable judgment, order, decree, stipulation or injunction would have the effect of making the transactions contemplated by this Agreement illegal or otherwise restraining or prohibiting consummation of such transactions. 28 8019(12001-002 Current/9387690v9 (g) The Option Termination Agreement shall have been executed and delivered by, and be in full force and effect as to, each Optionee. (h) Buyer shall have received copies of the resignations, effective as of the Closing, of each director and officer of the Company and the Subsidiaries (other than any such resignations which Buyer designates, by written notice to the Sellers' Representative, as unnecessary). (i) The Company shall have provided to Buyer payoff letters and releases acceptable to it with respect to outstanding indebtedness for borrowed money (including without limitation the Senior Indebtedness and the Subordinated Indebtedness), which shall contain payoff and release information with respect to the satisfaction of such obligations and UCC-3 termination statements or other provisions reasonably satisfactory to Buyer for the termination and release of all Encumbrances in respect of such Indebtedness. (j) A.J. Wasserstein shall have entered into a noncompetition agreement substantially in the form attached hereto as Exhibit C. (k) The Employment Agreements shall have been terminated and be of no further force or effect. Article VIII - SURVIVAL OF REPRESENTATIONS AND WARRANTIES; INDEMNIFICATION Section 8.1. Survival Subject to the limitations and other provisions of this Agreement, the representations and warranties of the parties hereto contained herein, as the case may be, shall survive the Closing and shall remain in full force and effect for a period of twelve (12) months after the Closing Date. Neither party shall have any obligation under this Article VIII following such termination. Section 8.2. Severallndemnification by the Sellers (a) The Sellers agree, subject to the other tenors and conditions of this Agreement, to severally, in accordance with their Pro Rata Share, indemnify Buyer and its officers and directors (each, a "Buyer Indemnified Party") against and hold them harmless to the extent of any Losses resulting from (i) the breach of any representation or warranty of the Company or the Sellers contained herein, (ii) any breach of any covenant or agreement of the Company or the Sellers contained herein, and (iii) the actual amount of Indebtedness and Transaction Expenses exceeding the amount deducted in respect thereof in the calculation of the Purchase Price under Section 1.2 of this Agreement. (b) The indemnification obligations of the Sellers pursuant to Section 8.2(a) shall be limited as follows: 29 8019/12001-002 Curren119387690v9 (i) Subject to subsection (ii), the Sellers shall have no obligation to provide any indemnification until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 8.2(a) exceeds $250,000 (the "Threshold Amount"), and then only to the extent such aggregate amount exceeds such Threshold Amount. (ii) Notwithstanding anything herein to the contrary, with respect to any claims for indemnification arising out of a breach of any of the representations and warranties of the Company under Article II which are qualified by "Material Adverse Effect," or "knowledge", the Sellers shall have no obligation to provide any indemnification with respect to (X) any single breach until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 8.2(a) with respect to such breach exceeds $1,250,000 (the "Individual Event Threshold Amount"), and then only to the extent such aggregate amount exceeds such Individual Event Threshold Amount or (Y) all such breaches until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 8.2(a) with respect to all such breaches exceeds $3,500,000 (the "Aggregate Event Threshold Amount") and then only to the extent such aggregate amount exceeds such Aggregate Event Threshold Amount; provided, however, for purposes of detennining under this Section 8.2(b)(ii) whether a representation or warranty is true and correct and the amount of Losses incurred or suffered, any reference to "Material Adverse Effect" or "knowledge" in such representation or warranty shall be disregarded. (iii) The Sellers shall not be obligated to indemnify any Buyer Indemnified Party pursuant to Section 8.2(a) for any amount of indemnifiable Losses in excess of the amounts in the Escrow Fund; provided, that, the limitation contained in this Section 8.2(b)(iii) shall not apply to Losses in respect of (1) Section 8.2(a)(iii), or (2) a breach of the representations contained in Sections 2.2 or 2.9. (iv) In no event shall any Seller be obligated to indemnify a Buyer Indemnified Party for (A) any Losses pursuant to this Article VIII in excess of such Seller's Pro Rata Share of such Loss, (B) Losses to the extent attributable to a breach of this Agreement by any other Seller, or (C) Losses in excess of the proceeds received by such Seller under this Agreement, and the maximum aggregate amount of Losses to which the Buyer Indemnified Parties are entitled hereunder shall not exceed the Purchase Price. (v) No indemnification shall be payable to a Buyer Indemnified Party with respect to claims asserted by such Buyer Indemnified Party pursuant to Section 8.2(a) after the date that is twelve (12) months after the Closing Date (the "Indemnification Cut -Off Date"). (c) Payments by the Sellers pursuant to Section 8.2(a) shall be further limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually 30 8019/12001-002 Current/9387690v9 received by Buyer Indemnified Parties from any third party with respect thereto. The amount of Losses otherwise recoverable under this Section 8.2 shall be adjusted to the extent to which any federal, state, local or foreign tax liabilities or benefits are realized by the Buyer indemnified Parties by reason of any Loss or indemnity payment hereunder. (d) A Buyer Indemnified Party shall give the Sellers' Representative written notice of any claim, assertion, event or proceeding by or in respect of a third party as to which such Buyer Indemnified Party may request indemnification hereunder or as to which the Threshold Amount may be applied as soon as is practicable and in any event within thirty (30) days of the time that such Buyer Indemnified Party learns of such claim, assertion, event or proceeding; provided, however, that the failure to so notify the Sellers' Representative shall not affect rights to indemnification hereunder except to the extent that the Sellers' are materially prejudiced by such failure. The Sellers' Representative shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at its own expense. If the Sellers' Representative elects to assume the defense of any such claim or proceeding, the Sellers' Representative shall consult with the Buyer Indemnified Party for the purpose of allowing the Buyer Indemnified Party to participate in such defense, but in such case the expenses of the Buyer Indetnifed Party shall be paid by the Buyer Indemnified Party. A Buyer Indemnified Party shall provide and shall cause the Company to provide, as applicable, the Sellers' Representative and counsel with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with the Sellers' Representative in the defense or settlement thereof, and the Sellers shall reimburse Buyer Indemnified Party for all its reasonable out-of-pocket expenses in connection therewith. If the Sellers' Representative elects to direct the defense of any such claim or proceeding, Buyer Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability unless the Sellers' Representative consents in writing to such payment or unless the Sellers' Representative, subject to the last sentence of this Section 8.2(d), withdraws from the defense of such asserted liability or unless a final judgment from which no appeal may be taken by or on behalf of the Sellers is entered against Buyer Indemnified Party for such liability. If the Sellers' Representative fails to defend or if, after commencing or undertaking any such defense, the Sellers' Representative fails to prosecute or withdraws from such defense, Buyer Indemnified Party shall have the right to undertake the defense or settlement thereof, at the Sellers' expense; provided, however, that the Buyer Indemnified Party shall keep the Sellers' Representative reasonably informed of the status of such matter and shall not, without the prior written consent of the Sellers' Representative, incur legal fees and expenses in respect of such matter in excess of $125,000 in the aggregate. If the Buyer Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 8.2(d) and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego any appeal with respect thereto, then the Buyer indemnified Party shall give the Sellers' Representative prompt written notice thereof, and the Sellers' Representative shall have the right to participate in and consent to the settlement or assume or reassume the defense of such claim or proceeding. 31 8019/12001.002 Current/9387690v9 (e) No Buyer Indemnified Party shall be entitled to any indemnification hereunder with respect to any breach of any representation, warranty or covenant with respect to which (i) any of C. Richard Reese, John F. Kenny and/or Todd Koopersmith had actual knowledge, at any time prior to the Closing, of such breach and Buyer fails to give the Sellers' Representative notice of such breach prior to the Closing or (ii) to the extent Buyer or such Buyer Indemnified Party could have, with reasonable efforts, mitigated or prevented the Loss with respect to such breach. No Buyer Indemnified Party shall be entitled to indemnification hereunder for any Loss arising from a breach of any representation, warranty or covenant set forth herein (and the amount of any Loss incurred in respect of such breach shall not be included in the calculation of any limitations on indemnification set forth herein) to the extent that such liability is included as a Current Liability in the calculation of Closing Working Capital. (f) Anything herein to the contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of Buyer or a Buyer Indemnified Party, after the consummation of the transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (g) Buyer and each Buyer indemnified Party shall take all commercially reasonable steps to mitigate Losses for which indemnification may be claimed by them pursuant to this Agreement upon and after becoming aware of any event that could reasonably be expected to give rise to any such Losses. Any liability for indemnification under this Section 8.2 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. Section 8.3. Indemnification by Buyer. (a) Buyer agrees, subject to the other terms and conditions of this Agreement, to indemnify the Sellers and their respective Affiliates, officers, directors and employees (each, a "Seller Indemnified Party") against and hold them harmless from all Losses resulting from (i) the breach of any representation or warranty of Buyer contained herein, and (ii) any breach of any covenant or agreement of Buyer contained herein. (b) Limitations. (i) Subject to subsection (iii) below, the indemnification obligations of Buyer pursuant to Section 8.3(a) shall not be effective until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to this Section 8.3(a) exceeds the Threshold Amount, and then only to the extent such aggregate amount exceeds the Threshold Amount. (ii) No indemnification shall be payable to a Seller indemnified Party with respect to claims asserted by such Seller Indenmified Party pursuant to Section 8.3(a) after the Indemnification Cut-OffDate. 32 8019/12001-002 Currentl9387690v9 (iii) Notwithstanding anything herein to the contrary, with respect to any claims for indemnification arising out of a breach of any of the representations and warranties of Buyer under Article IV which are qualified by "Material Adverse Effect," or "knowledge", the Buyer shall have no obligation to provide any indemnification with respect to (X) any single breach until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 8.3(a) with respect to such breach exceeds the Individual Event Threshold Amount, and then only to the extent such aggregate amount exceeds such Individual Event Threshold Amount or (Y) all such breaches until the aggregate dollar amount of all Losses that would otherwise be indemnifiable pursuant to Section 8.3(a) with respect to all such breaches exceeds the Aggregate Event Threshold Amount and then only to the extent such aggregate amount exceeds such Aggregate Event Threshold Amount; provided, however, for purposes of determining under this Section 8.3(b)(iii) whether a representation or warranty is true and correct and the amount of Losses incurred or suffered, any reference to "Material Adverse Effect" or "knowledge" in such representation or warranty shall be disregarded. (c) Payments by Buyer pursuant to Section 8.3(a) shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment actually recovered by Seller Indemnified Parties from any third party with respect thereto. The Seller Indemnified Parties shall exhaust all remedies against applicable insurers or indemnitors or contributors prior to seeking indemnification hereunder. The amount of Losses otherwise recoverable under this Section 8.3 shall be reduced to the extent to which any federal, state, local or foreign tax liabilities of the Seller Indemnified Parties, or any of its respective Affiliates is decreased by reason of any Loss in respect of which such Seller Indemnified Party shall be entitled to indemnity under this Agreement. (d) A Seller Indemnified Party shall give Buyer written notice of any claim, assertion, event or proceeding by or in respect of a third party as to which such Seller Indemnified Party may request indemnification hereunder or as to which the Threshold Amount may be applied as soon as is practicable and in any event within thirty (30) days of the time that such Seller Indemnified Party learns of such claim, assertion, event or proceeding; provided, however, that the failure to so notify Buyer shall not affect rights to indemnification hereunder except to the extent that Buyer is materially prejudiced by such failure. Buyer shall have the right to direct, through counsel of its own choosing, the defense or settlement of any such claim or proceeding at its own expense. If Buyer elects to assume the defense of any such claim or proceeding, Buyer shall consult with the Seller Indemnified Party, the Seller Indemnified Party may participate in such defense, but in such case the expenses of the Seller Indemnified Party shall be paid by the Seller Indemnified Party. The Seller Indemnified Party shall provide Buyer with access to its records and personnel relating to any such claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with Buyer in the defense or settlement thereof, and Buyer shall reimburse the Seller Indemnified Party for all the reasonable out-of-pocket expenses of such Seller Indemnified Party in connection therewith. If Buyer elects to direct the defense of any such claim or 33 8019/12001-002 CurrenU9387690v9 proceeding, the Seller Indemnified Party shall not pay, or permit to be paid, any part of any claim or demand arising from such asserted liability, unless Buyer consents in writing to such payment or unless Buyer, subject to the last sentence of this Section 8.3(d), withdraws from the defense of such asserted liability, or unless a final judgment from which no appeal may be taken by or on behalf of Buyer is entered against the Seller Indemnified Party for such liability. If Buyer fails to defend or if after commencing or undertaking any such defense, Buyer fails to prosecute or withdraws from such defense, the Seller Indemnified Party shall have the right to undertake the defense or settlement thereof, at Buyer's expense. If the Seller Indemnified Party assumes the defense of any such claim or proceeding pursuant to this Section 8.3(d) and proposes to settle such claim or proceeding prior to a final judgment thereon or to forego appeal with respect thereto, then such Seller Indenmified Party shall give Buyer prompt written notice thereof and Buyer shall have the right to participate in and consent to the settlement or assume or reassume the defense of such claim or proceeding. (e) Anything herein to the contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of the Sellers, after the consummation of the transactions contemplated by this Agreement, to rescind this Agreement or any of the transactions contemplated hereby. (f) The Sellers and Seller Indemnified Parties shall take all reasonable steps to mitigate Losses for which indemnification maybe claimed by them pursuant to this Agreement upon and after becoming aware of any event that could reasonably be expected to give rise to any such Losses. (g) No indemnification shall be payable to a Seller Indemnified Party with respect to claims asserted by such Seller Indemnified Party pursuant to Section 8.3(a) after the Indemnification Cut -Off Date. Any liability for indemnification under this Section 8.3 shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. Section 8.4. Treatment of Indemnity Payments. All payments made by the Sellers or Buyer, as the case may be, to or for the benefit of the other parties pursuant to this Article VIII shall be treated as adjustments to the Purchase Price for tax purposes, and such agreed treatment shall govern for purposes of this Agreement. Section 8.5. Remedies Exclusive. (a) Buyer hereby acknowledges and agrees that prior to the Closing, Buyer shall have no right or remedy to take any action in respect of, and the Company and the Sellers shall have no liability to Buyer in respect of, any breach by the Company or the Sellers of any of their respective representations or warranties contained herein or a material failure to comply with any of their covenants, conditions or agreements contained herein, except (i) to terminate this Agreement pursuant to Section 9.1 hereof, in 34 8019/12001-002 Currentt9387690v9 which event, subject to Section 9.2, the Company and the Sellers shall thereupon have no obligation or liability to Buyer whatsoever hereunder or (ii) seek specific performance or injunctive relief. (b) The Company and Sellers hereby acknowledge and agree that prior to the Closing, the Company and Sellers shall have no right or remedy to take any action in respect of, and Buyer shall have no liability to the Company or Sellers in respect of, any breach by Buyer of any of their respective representations or warranties contained herein or a material failure to comply with any of their covenants, conditions or agreements contained herein, except (i) to terminate this Agreement pursuant to Section 9.1 hereof, in which event, subject to Section 9.2, the Buyer shall thereupon have no obligation or liability to the Company or Sellers whatsoever hereunder or (ii) seek specific performance or injunctive relief. (c) From and after the Closing, the rights of the parties to indemnification relating to this Agreement or the transactions contemplated hereby shall be strictly limited to those contained in this Article VIII, and such indemnification rights shall be the exclusive remedies of the parties subsequent to the Closing Date with respect to any matter in any way relating to this Agreement or arising in connection herewith. To the maximum extent permitted by law, the parties hereby waive all other rights and remedies with respect to any matter in any way relating to this Agreement or arising in connection herewith, whether under any laws (including any right or remedy under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6901 et., the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9602 et seq., or any other Environmental Law), at common law or otherwise. Except as provided in this Article VIII, no claim, action or remedy shall be brought or maintained by any party against any other party, and no recourse shall be brought or granted against any of them, by virtue of or based upon any alleged misstatement or omission respecting an inaccuracy in or breach of any of the representations, warranties or covenants of any of the parties hereto set forth or contained in this Agreement, except to the extent that the same shall have been the result of fraud in the inducement by any party hereto. Article IX - TERMINATION Section 9.1. Termination. This Agreement may be terminated: (a) at any time, by the mutual written consent of the Sellers' Representative and Buyer; (b) by the Sellers' Representative, if the Company or the Sellers, as applicable, are not then in material breach of any term of this Agreement, upon written notice to Buyer, upon a material breach of any representation, warranty or covenant of Buyer contained in this Agreement, provided that such breach is not capable of being cured or has not been cured within the earlier to occur of (a) thirty (30) days after the 35 8019112001-002 Curront19387690v9 giving of notice thereof by the Sellers' Representative to Buyer or (b) the June 11, 2007 (the "Trigger Date"); (c) by Buyer, if Buyer is not then in material breach of any term of this Agreement, upon written notice to the Sellers' Representative, upon a material breach of any representation, warranty or covenant of the Company or any Seller contained in this Agreement, provided that such breach is not capable of being cured or has not been cured within the earlier to occur of (a) thirty (30) days after the giving of notice thereof by Buyer to the Company and (b) the Trigger Date; and (d) by Buyer or the Sellers' Representative at any time after the Trigger Date if the Closing has not occurred as of such date and the party seeking termination is not then in material breach of any of the terms of this Agreement. Section 9.2. Effect of Termination. (a) In the event of termination of this Agreement as provided in Section 9.1, this Agreement shall forthwith become void and there shall be no further liability or obligations hereunder on the part of any party hereto or their respective Affiliates except for the obligations of the parties pursuant to this Section 9.2 and Sections 5.2(b), 5.3, 5.7(b) and 10.2; provided, however, that nothing herein shall relieve either party from liability for any willful breach of this Agreement existing at the time of such termination (b) Notwithstanding anything herein to the contrary but subject to the proviso in Section 9.2(a) above: (i) in the event that (A) Buyer terminates this Agreement pursuant to Section 9.1(c) above and (B) as of the date of such termination by Buyer, the conditions in Section 7.2(b) cannot be satisfied as a result of the occurrence of an event or condition between the date hereof and the date of such termination or inaccuracy of a representation or warranty of the Company in Article II of the date hereof, the Company shall promptly reimburse Buyer for its reasonable third party out of pocket fees and expenses incurred in connection with the negotiation and consummation of the transactions contemplated hereby up to a maximum of $250,000; provided, that such reimbursed fees and expenses shall not include any fees or expenses incurred by Buyer in connection with any filings or actions contemplated by Section 5.4 or with respect to the HSR Act; (ii) in the event that (A) the Sellers' Representative terminates this Agreement pursuant to Section 9.1(b) above and (B) as of the date of such termination by the Sellers' Representative, the conditions in Section 7.1(b) cannot be satisfied as a result of the occurrence of an event or condition between the date hereof and the date of such termination or inaccuracy of a representation or warranty of Buyer in Article IV of the date hereof, Buyer shall promptly reimburse the Company and the Sellers for their reasonable third party out of pocket fees and expenses incurred in connection with the negotiation and 36 8019/12001-002 Currentl9387690v9 consummation of the transactions contemplated hereby up to a maximum of $250,000; provided, that such reimbursed fees and expenses shall not include any fees or expenses incurred by the Company or the Sellers in connection with any filings or actions contemplated by Section 5.4 or with respect to the HSR Act; (iii) in the event that the Closing occurs and either (A) Buyer has the right on or prior to the Closing to terminate this Agreement pursuant to Section 9.1(c) above or (B) Buyer has waived the condition in Section 7.2(b), Buyer shall have no right to seek recovery or any remedy whatsoever, whether through the indemnity provisions of this Agreement or otherwise, with respect to either (1) any of the conditions giving rise to Buyer's right to terminate under • Section 9.1(c) or (2) the underlying representation or warranty necessitating Buyer's waiver of the condition in Section 7.2(b); (iv) in the event that the Closing occurs and either (A) Sellers' Representative has the right on or prior to the Closing to terminate this Agreement pursuant to Section 9.1(b) above or (B) Sellers' Representative has waived the condition in Section 7.1(b), Sellers shall have no right to seek recovery or any remedy whatsoever, whether through the indemnity provisions of this Agreement or otherwise, with respect to either (1) any of the conditions giving rise to Sellers' Representative's right to terminate under Section 9.1(b) or (2) the underlying representation or warranty necessitating Sellers' Representative's waiver of the condition in Section 7.1 (b); (v) in the event that (A) the Closing occurs and (B) one or more of the representations and warranties of the Company and Sellers are not true and correct as of the Closing as though then made, but the condition in Section 7.2(b) is nonetheless satisfied, Buyer shall have no restriction, other than the indemnity limitations set forth in Article VIII, to seek indemnification from the Sellers for any Losses under Section 8.2; and (vi) in the event that (A) the Closing occurs and (B) one or more of the representations and warranties of Buyer are not true and correct as of the Closing as though then made, but the condition in Section 7.1(b) is nonetheless satisfied, Sellers shall have no restriction, other than the indemnity limitations set forth in Article VIII, to seek indemnification from Buyer for any Losses under Section 8.3. Section 9.3. Waiver. At any time prior to the Closing, Buyer and the Sellers' Representative hereto may (a) extend the time for the performance of any of the obligations or other acts of the other party hereto, (b) waive any inaccuracies in the representations and warranties of the other party contained herein or in any document delivered by the other party pursuant hereto or (c) waive compliance with any of the agreements of the other party or conditions to its own obligations contained herein. Any such extension or waiver shall be valid only if set forth in an instrument in writing signed by the party to be bound thereby. Waiver of any term or condition of this Agreement by a party shall not be construed as a waiver of any 37 8019/12001-002 CurrenU9387690v9 subsequent breach or waiver of the same term or condition by such party, or a waiver of any other term or condition of this Agreement by such party. Article X - GENERAL PROVISIONS Section 10.1. Notices. All notices, requests, claims, demands and other communications under this Agreement will be in writing and will be deemed given if delivered personally, sent by overnight courier (providing proof of delivery), or via facsimile to the parties at the following addresses (or at such other address for a party as specified by like notice): (a) if to the Company, to: ArchivesOne, Inc. Middlebury Edge 1625 Straits Turnpike, Suite 211 Middlebury, CT 06762 Attn: A.J. Wasserstein Facsimile: (203) 286-2737 with copy to: Proskauer Rose LLP One International Place Boston, MA 02110 Attn: Alexander B. Temel and Michael K. Harrington, Esq. Facsimile: (617) 526-9899 (b) if to the Sellers' Representative, to: c/o Housatonic Partners 111 Huntington Avenue Suite.2850 Boston, MA 02199-5160 Attn: Karen Liesching Facsimile: (617) 267-5565 with a copy to: Proskauer Rose LLP One International Place Boston, MA 02110 Attn: Michael K. Harrington, Esq. Facsimile: (617) 526-9899 38 8019112001-002 Current/93876904 (c) If to Buyer, to: Iron Mountain Information Management, Inc. 745 Atlantic Avenue Boston, MA 02110 Attn: Mergers and Acquisitions Facsimile: (617) 451-0409 with a copy to: Sullivan & Worcester LLP One Post Office Square Boston, MA 02.109 Attn: William J. Curry, Esq. Facsimile: (617) 338-2880 Section 10.2. Fees and Expenses Except as provided otherwise herein, each of Buyer, on the one hand, and the Company and the Sellers on the other hand, shall bear its or their own expenses in connection with the negotiation and the consummation of the transactions contemplated by this Agreement. Section 10.3. Certain Definitions. For purposes of this Agreement, certain defined terms shall have the meanings set forth on Exhibit D attached hereto. Section 10.4. Interpretation. When a reference is made in this Agreement to an Article, Section, Schedule or Exhibit, such reference will be to an Article or Section of, or a Schedule or Exhibit to, this Agreement unless otherwise indicated. The table of contents and headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include", "includes" or "including" are used in this Agreement, they will be deemed to be followed by the words "without limitation." The words "hereof," "herein" and "hereunder" and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. All terms used herein with initial capital letters have the meanings ascribed to them herein and all terms defined in this Agreement will have such defined meanings when used in any certificate or other document made or delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. References to a Person are also to its permitted successors and assigns. Section 10.5. Counterparts. This Agreement may be executed in one or more counterparts, all of which will be considered one and the same agreement and will become 39 8019/12001-002 Current19387690v9 effective when one or more counterparts have been signed by each of the parties and delivered to the other parties. Section 10.6. Amendments. This Agreement may not be amended or modified except by a writing duly and validly executed by Buyer and the Sellers' Representative. No waiver by Buyer of compliance with any condition or covenant shall be valid unless the same shall be in writing and signed by the Buyer. No waiver by the Company of compliance with any condition or covenant shall be valid.unless the same shall be in writing and signed by the Company. No waiver by the Sellers of compliance with any condition or covenant shall be valid unless the same shall be in writing and signed by the Sellers' Representative. Section 10.7. Entire Agreement; Severability. This Agreement (including the exhibits, schedules, documents and instruments referred to herein) and the Confidentiality Agreement constitute the entire agreement, and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement. If any term, condition or other provision of this Agreement is found to be invalid, illegal or incapable of being enforced by virtue of any rule of law, public policy or court determination, all other terms, conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Section 10.8. Third Party Beneficiaries. Except as expressly provided in this Agreement, each party hereto intends that this Agreement shall not benefit or create any right or cause of action in or on behalf of any Person other than the parties hereto. Section 10.9. Governing. Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the State of New York. Section 10.10. Assignment. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned, in whole or in part, by operation of law or otherwise by the parties hereto without the prior written consent of the Sellers' Representative and the Buyer. Any assignment in violation of the preceding sentence will be void. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns. Section 10.11. Consent to Jurisdiction. Each of the parties hereby consents to personal jurisdiction, service of process and venue in the federal or state courts of the State of New York for any claim, suit or proceeding arising under this Agreement, or in the case of a third party claim subject to indemnification hereunder, in the court where such claim is brought. Section 10.12. Mutual Drafting. The parties hereto are sophisticated and have been represented by attorneys throughout the transactions contemplated hereby who have carefully negotiated the provisions hereof. As a consequence, the parties do not intend that the presumptions of laws or rules relating to the interpretation of contracts against the drafter of any particular clause should be applied to this Agreement or any agreement or instrument executed in connection herewith, and therefore waive their effects. 40 8019/12001-002 Current/9387690v9 Section 10.13. Remedies It is specifically understood and agreed that any breach of the provisions of this Agreement or any other agreement executed and delivered pursuant to this Agreement by any party hereto will result in irreparable injury to the other parties hereto, that the remedy at law alone will be an inadequate remedy for such breach, and that, in addition to any other remedies which they may have, such other parties may enforce their respective rights by actions for specific performance (to the extent permitted by law). Section 10.14. Termination ofAFreements Effective as of the Closing, the Sellers hereby terminate the Stockholders Agreement and the Registration Rights Agreement, which agreements shall be of no further force or effect as of such date, and hereby waive the application of the provisions of the Stockholders Agreement to the transactions contemplated hereby. [Remainder of page intentionally left blank] 41 8019/12001-002 CurrenU9387690v9 BUYER: IRON MOUNTAIN INFORMATION MANAGEMENT B 8019/12001-002 Current19387690v8 e: Title: N WETNESS WHEREOF, the parties hereto have caused this Seclnitica Purchase and Sale Agreement to ho signed by their respective officers thereunta duly authorized. all OS (Attic date first written above. COMPANY: ARCHIVESONE. IINC. l By: SRI,I,ERS HOUSATONIC EQUITY INVESTORS, L.P. Housatonic Equity Partners 1, L.L.C. Its General Partner By: Name: Title: HOUSATONIC EQUITY INVESTORS, SB1C, L.P. By: Housatonic Equity Partners SBIC, L.L.C. Its General Partner By: Name: Talc: AMY S. RICH CUSTODIAL IRA ACCOUNT By: Name: Title! Signature Paso to Scarifies Purple= and Salo Agreetne nt 0172675565 02:44:08p.m , 03-29-2007 3/4 IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase and Sale Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above. COMPANY: ARCHIVESONE, INC. By: Name: Title: SELLERS' HOUSATONIC EQUITY. INVESTORS, L.P. By:Housatonic Equity Partners I, L.L.C. IP By: Title: 1 HOUSATONIC EQUITY INVESTORS, SBIC, L.P. By:Housatonic Equity Partners SBIC, L.L.C. Its General Partner By: Name: Tick: AMY S. RICH CUSTODIAL IRA ACCOUNT Name: Title: Signature Page to Securities Purchase and Sale Agreement 0172075585 02:44:01 p.m. 03-20.2007 214 IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase and Sale Agreement to be signed by their respective officers thereunto duly authorized, all as of the date first written above. COMPANY: ARCHIVESONE, INC. BY: Name: Title: SELLERS: HOUSATONIC EQUITY INVESTORS, L.P. By:Housatonic Equity Partners I, L.L.C. Its General Partner By. Name: Title: HOUSATONIC EQUITY INVESTORS, SBIC, L.P. By:Housatonic Equity Partners SBIC, L.L.C. Its General Partner By: lCAaA_t itsat:4 Name:,tvl (,; Title: F AMY S. RICH CUSTODIAL IRA ACCOUNT By: Name; Title: Signature Page to Securities Purchase and Sale Agreement 03/27/2007 HE 9:29 FAX 2034368500 i1il ICAL DEVELO NT 002/002 .IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase and Sale Agreement to be signed by their respective officers thereinto dnly authorized, all as of the date first written above. COMPANY: ARCISONE, INC. By: Name: Tide: • SELLERS: HOUSATONIC EQUITY INVESTORS, L.P. By: Housatonic Equity Partners I, L.L.C. Its General Partner By: Name: Title: HOUSATONIC EQUITY INVESTORS, SBIC, L.P. By. Housatonic .Equity Partners SIC, Its General Partner By: Name: Title: AMIY S. RICH CUSTODIAL IRA ACCOUNT . By: Title: Signature Page to Securities Purchase and Sale Aft • James W. Reliff David Kov Ff. James Trickett Scott D. Brabant Charles Saponaro Gary Schoenberger Signature Page to Securities Purchase and Side Agrean ant A.J, Wasserstein John S. Pavlovich David Koval H James Trickett Scott D. Brabant Charles Saponaro Gary Schoenberger simian= Page to Securities Purchase and Side Agreement A.J. Wasserstein James W. Ratliff John S. Pavlovich David Koval H. James Trickett Scott D. Brabant otxt Charles Saponaro Gary Schoenberger Signature Page to Securities Purchase and Sale Agreement 83/28/2807 12147 71360.3242 Muster Per To totteldwilVehad yid hanimnal 03/2[007 VE1D 1540 (TX/TX NO 8854) qD02 I000 03(26/2007 16:52 9736430640 ARCHIVER:NE A.J. Wasserstein John S. Pavlovioh H. James Trickett Scott D. Brabant Charles Saponaro Gary Schoenberger Signature Page to Securities Purchase and Sale Agreement PAGE 02/02 MERRIL LYNCH PIERCE PENN R & SMITH, CUSTODIAN F.B.O. JONATHAN W. D'ELIA IRRA 1. KENNETH SAXON AND JOSEPHINE BRICKNER SAXON, TRUSTEES OF THE SAXON 1998 TRUST U/A/D 7/31/98 By; By: I. Kenneth Saxon, Trustee Josephine Briokser Saxon, Trustee THOMAS W. AND TRACEY S. BIRD, TRUSTEES OF THE BIRD REVOCABLE TRUST DATED DUNE 6,1991 By By: Manias W. Bird, Trustee Tracey S. Bird, Trustee Signstuv Page to Securities Purchase and Safe Agreement MAR-27-07 02:42 PM CRAWFORD-ID8MA PDTM. 4,P.VOrtAVICiailnla , r r 978 818 0538 WARM SCHWAB & CO., P13.0. IONAT1AI4 W. D'ELIA IRA By: Name; Title: P.01 II001 L KENNETH SAXON AND Iceman HELMER SAXON, TRUSTEES OF 'am SAXON I:99S TRUST U/ND 7/31NS By T21"). , 4/9 146 Kenneth Saxon, Trustee Br •rs--',. Of Josephine Orklaier Saxon, Trustee THOMAS W. AND TRACEY S. BIRb TRUSTEES OF 'THE BIRD REVOCABLE TRUST DATED JUNB 6, 199I By Thomas W. Bird, Trustee By: <AZ dt&C ' Tracey S. Trustee Slinattow Psoo to Semitic, Phsis toui Sitlo Agroomeot ADAM J WA$SERSTBIN RA ACCOUNT (PT) 33T. Name: Title: JOIN WASSJRSTJIN IRA ACCOT.TNT (PT) By: epieOZ*17 Na JODI WASSERSTEIN IRA ACCOUNT (AT) JOYCE ITIFIALY-ABR AMS, TRUSTEE UNDER THE JOYCE R. HEALY-ABRAMS REVOCABLE TRUST AGREEMENT By: Joyce Healy-Abnuns, Trustee SIgnattirc Pogo to SecurrtIng Thirchast anti Salo Agrocniat Jun 26 01 0728a Joyce Healy -Abrams 17409649000 ADAM J. WASSERSTEIN IRA ACCOUNT (PT) By: Names Tide: ADAM J. WASSERSTEIN IRA ACCOUNT (AT) By: Name: Title: JODI WASSERSTEIN IRA ACCOUNT (PT) By: Name: Tide: JODI WASSERSTEIN IRA ACCOUNT (AT) By: Name: Title: JOYCE HEALY-ABRAMS, TRUS 1 Eh. UNDER. THE JOYCE R. HEALY-ABRAMS REVOCABLE TRUST AGREEMENT BY: Signature Page to Securities Purchase and Sala Agreement Mar E7 07 09:18a GHea1eu (248)454-1058 HV CAPITAL LLC By: ____ Name: Moe f e Ay/ Title: /WeNv ?y► /)'ea Jet• ABRY MEZZANINE PARTNERS, L.P. By: ABRY MEZZANINE INVESTORS, L.P., Its General Partner By: Name: Title: ABRY INVESTMENT PARTNERSHIP, L.P, By: ABRY INVESTMENT GP, LLC Its General Partner By: Name: Title: Signature Page to Securities Purchase and Sale Agreement P. From:ABRY Partners, LLC 817 859 8797 03/29/20D7 09:17 R448 P,0D2/002 ITV CAPITAL LLC By Name: Title; ABRY MEZZANINE PARTNERS, L.P. By: ABRY MEZZANINE INVESTORS, L.P., Its General Partner ABRY INVESTMENT PARTNERSHIP, L.P. By: ABRY INVESTMENT GP, LLC Its General Partner Name: Title: Signature Page to Securities Perehase and Sale Agreement Signature Page to Securities Purchase and Safe Agreetrtcn; 6172675555 02;44:16 p,m. 03-29-2007 4 /4 SELLERS' REPRESENTATIVE HOUSATONIC MANAGEMENT C MPANY, INC. By: Signature Page to Securities Purcinse and Sale Agreement