As filed with the Securities and Exchange Commission on November 18, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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IRON MOUNTAIN INCORPORATED
(Exact name of issuer as specified in its charter)
Delaware 04-3107342
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
745 Atlantic Avenue, Boston, Massachusetts 02111
(617) 357-4455
(Address of Principal Executive Offices including zip code)
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Iron Mountain Incorporated Executive Deferred Compensation Plan
(Full title of the plan)
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C. Richard Reese
Chairman of The Board of
Directors and Chief Executive Officer
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
(617) 357-4455
(Name, address and telephone number of agent for service)
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Copy to:
William J. Curry, Esq.
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
(617) 338-2800
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<CAPTION>
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CALCULATION OF REGISTRATION FEE
Proposed
Proposed Maximum
Title of Securities Amount to be Maximum Offering Aggregate Amount of
to be Registered Registered Price Per Obligation(1) Offering Price(1) Registration Fee
---------------- ---------- ----------------------- ----------------- ----------------
<S> <C> <C> <C> <C>
Deferred
Compensation $20,000,000 100% $20,000,000 $5,560.00
Obligations(2)
<FN>
(1) With respect to the Deferred Compensation Obligations registered under
the Iron Mountain Incorporated Executive Deferred Compensation Plan,
the proposed maximum offering price per obligation and the proposed
maximum aggregate offering price have been estimated solely for purpose
of calculating the amount of the registration fee in accordance with
Rules 457(c) and 457(h) under the Securities Act of 1933, as amended.
(2) The Deferred Compensation Obligations are unsecured obligations of Iron
Mountain Incorporated to pay deferred compensation in the future in
accordance with the terms of the Iron Mountain Incorporated Executive
Deferred Compensation Plan.
</FN>
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PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed by Iron Mountain
Incorporated (the "Company") with the Securities and Exchange Commission, are
incorporated by reference in and made a part of this Registration Statement, as
of their respective dates:
o The Company's Quarterly Report on Form 10-Q for the quarter
ended September 30, 1998;
o The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1998;
o The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
o The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
o The Company's Current Report on Form 8-K dated September 18,
1998;
o The Company's Current Report on Form 8-K dated July 10, 1998
(amended August 7, 1998);
o The Company's Current Report on Form 8-K dated April 21, 1998;
o The Company's Current Report on Form 8-K dated March 30, 1998;
o The Company's Current Report on Form 8-K dated March 9, 1998;
o The Company's Current Report on Form 8-K dated February 18,
1998 (amended April 7, 1998);
o The Company's Current Report on Form 8-K dated January 6,
1998; and
o The description of the common stock of the Company contained
in the Company's registration statement on Form 8-A dated
January 18, 1996 (File No. 0-27584), including any amendments
or reports filed for the purpose of updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
subsequent to the date hereof and prior to the termination of the offering of
securities registered pursuant to this Registration Statement, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
herein, or in any subsequently filed document which also is or is deemed to be
incorporated by reference, modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this Registration Statement.
Item 4. Description of Securities.
Under the Iron Mountain Incorporated Executive Deferred Compensation
Plan (the "Plan"), the Company will provide eligible employees the opportunity
to defer the payment to them by the
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Company or any subsidiary of between five and fifty percent of their base salary
and between five and one hundred percent of any incentive compensation bonuses
by making a written election with the Plan's administrator. The obligations of
the Company under the Plan (the "Obligations") will be unsecured general
obligations of the Company to pay the deferred compensation, with earnings, in
the future in accordance with the terms of the Plan, and the Obligations will
rank equally with other unsecured and unsubordinated indebtedness of the Company
from time to time outstanding.
Each participating employee (each a "Participant") will elect the
amount of compensation to be deferred in accordance with the Plan. Participants
will choose hypothetical investment options from the range provided by the
Company. A hypothetical investment in the Company's stock will not be an option.
Each Obligation will be payable by the Company upon the Participant's
retirement, death, disability or termination of employment or such earlier date
selected by each Participant in accordance with the terms of the Plan. The
Participant may elect to receive benefits in either a single lump sum in cash or
substantially equal annual cash installments over a period of either five or ten
years.
No benefit, payment, sum or other interest under this Plan is subject
in any manner to anticipation, alienation, sale, transfer, assignment, pledge,
hypothecation, encumbrance or charge.
The Plan constitutes a promise by the Company to make benefit payments
to Participants and beneficiaries in the future in accordance with the terms of
the Plan. Any amounts payable under the Plan will be paid out of the general
assets of the Company and each Participant and beneficiary will be deemed to be
a general unsecured creditor of the Company.
The Company will establish a "grantor" trust to meet its obligations
under the Plan, the assets of which will be treated, for all purposes, as
general, unrestricted assets of the Company. In all events, it is the intent of
the Company that the Plan be treated as unfunded for tax and ERISA purposes.
Item 5. Interests of Named Experts and Counsel.
The validity of the Obligations will be passed upon for the Company by
Sullivan & Worcester LLP, Boston, Massachusetts. Jas. Murray Howe, Secretary of
the Company, is of counsel to Sullivan & Worcester LLP and is the owner of
15,000 shares of common stock of the Company.
Item 6. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, in effect, that any person made a party to any action by reason of the
fact that he is or was a director, officer, employee or agent of the Company may
and, in certain cases, must be indemnified by the Company against, in the case
of a non-derivative action, judgments, fines, amounts paid in settlement and
reasonable expenses (including attorney's fees) incurred by him as a result of
such action, and in the case of a derivative action, against expenses (including
attorney's fees), if in either type of action he acted in good faith and in a
manner he reasonably believed to be in or not opposed to the best interests of
the Company. This indemnification does not apply, in a derivative action, to
matters as to which it is adjudged that the director, officer, employee or agent
is liable to the Company, unless upon court order it is determined that, despite
such adjudication of liability, but in view of all the circumstances of the
case, he is fairly and reasonably entitled to indemnity for expenses, and, in a
non-derivative action, to any criminal proceeding in which such person had
reasonable cause to believe his conduct was unlawful.
Article Sixth of the Company's Amended and Restated Certificate of
Incorporation provides that the Company shall indemnify each person who is or
was an officer or director of the Company to the fullest extent permitted by
Section 145 of the DGCL.
Article Seventh of the Company's Amended and Restated Certificate of
Incorporation states that no director of the Company shall be liable to the
Company or its stockholders for monetary damages for breach of fiduciary duty as
a director, except to the extent that exculpation from liability is not
permitted under the DGCL as in effect when such breach occurred.
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Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
EXHIBIT INDEX
Exhibit No. Description
5 Opinion of Sullivan & Worcester LLP*
23.1 Consent of Sullivan & Worcester LLP (contained in the opinion
of Sullivan & Worcester LLP filed herewith as Exhibit 5)
23.2 Consent of Arthur Andersen LLP (Sloan Vaults, Inc. and
Affiliate, Midwest Records Management and InterMation, Inc.)*
23.3 Consent of Carbis Walker & Associates, LLP (National
Underground Storage, Inc.)*
23.4 Consent of Arthur Andersen LLP (Iron Mountain Incorporated)*
23.5 Consent of Ernst & Young LLP (Arcus Technology Services,
Inc.)*
24 Power of Attorney (included in signature page of this
Registration Statement)
*Filed herewith.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the
total dollar value of securities offered would not
exceed that which was registered) and any deviation
from the low or high and of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume
and price represent no more than 20 percent change in
the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective Registration Statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement:
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in
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periodic reports filed with or furnished to the Commission by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(2) that, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering;
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
Registration Statement shall be deemed to be a new Registration Statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof; and
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in that Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on the 18th
day of November, 1998.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
C. Richard Reese
Chairman of the Board,
Chief Executive Officer and Director
The undersigned Officers and Directors of the Company hereby severally
constitute C. Richard Reese, John F. Kenny, Jr. and David S. Wendell, and each
of them acting singly, our true and lawful attorneys to sign for us and in our
names in the capacities indicated below any amendments to this Registration
Statement on Form S-8 (including any post-effective amendments hereto) and to
file the same, with Exhibits thereto and other documents in connection
therewith, with the Commission, granting unto each of said attorneys, acting
singly, full power and authority to do and perform each and every act and thing
requisite or necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming our signatures to said amendments to this Registration Statement
signed by our said attorneys and all else that said attorneys may lawfully do
and cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons on behalf
of the Company in the capacities indicated on the 18th day of November, 1998.
Signatures Title
/s/ C. Richard Reese
C. Richard Reese Chairman, Chief
Executive Officer and Director
/s/ David S. Wendell
David S. Wendell President, Chief Operating Officer and
Director
/s/ John F. Kenny, Jr.
John F. Kenny, Jr. Executive Vice President and
Chief Financial Officer
/s/ Eugene B. Doggett
Eugene B. Doggett Director
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/s/ Constantin R. Boden
Constantin R. Boden Director
/s/ Arthur D. Little
Arthur D. Little Director
/s/ Vincent J. Ryan
Vincent J. Ryan Director
/s/ B. Thomas Golisano
B. Thomas Golisano Director
/s/ Kent P. Dauten
Kent P. Dauten Director
Clarke H. Bailey Director
/s/ Jean A. Bua
Jean A. Bua Vice President and Corporate
Controller
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SULLIVAN & WORCESTER LLP
ONE POST OFFICE SQUARE
BOSTON, MASSACHUSETTS 02109
(617) 338-2800
FAX NO. 617-338-2880
IN WASHINGTON, D.C. IN NEW YORK CITY
1025 CONNECTICUT AVENUE, N.W. 767 THIRD AVENUE
WASHINGTON, D.C. 20036 NEW YORK, NEW YORK 10017
(202) 775-8190 (212) 486-8200
FAX NO. 202-293-2275 FAX NO. 212-758-2151
EXHIBIT 5
November 18, 1998
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, Massachusetts 02111
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Act"), by Iron Mountain Incorporated, a Delaware corporation
(the "Company"), of $20,000,000 in deferred compensation obligations (the
"Obligations"), which represent unsecured obligations of the Company to pay
deferred compensation in the future pursuant to the provisions of the Company's
Executive Deferred Compensation Plan (the "Plan"), the following opinion is
furnished to you to be filed with the Securities and Exchange Commission (the
"Commission") as Exhibit 5 to the Company's registration statement on Form S-8
(the "Registration Statement") under the Act.
We have acted as counsel to the Company in connection with the
Registration Statement, and we have examined originals or copies, certified or
otherwise identified to our satisfaction, of the Registration Statement, the
Amended and Restated Certificate of Incorporation of the Company as presently in
effect, corporate records of the Company, and such other documents as we have
considered necessary in order to furnish the opinion hereinafter set forth.
This opinion is limited to the laws of The Commonwealth of
Massachusetts and the federal laws of the United States of America, and we
express no opinion with respect to the law of any other jurisdiction.
Based on and subject to the foregoing, we are of the opinion that, when
issued in accordance with the terms of the Plan, the Obligations will be valid
and binding obligations of the Company, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws of general applicability
relating to or affecting enforcement of creditors' rights or by general equity
principles.
<PAGE>
Iron Mountain Incorporated
November 18, 1998
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to our firm in the Prospectus
forming a part of the Registration Statement. In giving such consent, we do not
thereby admit that we come within the category of persons whose consent is
required under Section 7 of the Act or the rules and regulations of the
Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
Exhibit 23.2
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our reports dated March
13, 1998, February 25, 1998 and August 21, 1998 for Sloan Vaults, Inc. and
Affiliate, Midwest Records Management and InterMation, Inc., respectively,
included in Iron Mountain Incorporated's Form 8-K filed with the Securities and
Exchange Commission on September 18, 1998, and to all references to our Firm
included in this registration statement.
/s/ Arthur Andersen LLP
San Diego, California
Omaha, Nebraska
Seattle, Washington
November 13, 1998
Exhibit 23.3
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our report dated July
30, 1998 for National Underground Storage, Inc. included in Iron Mountain
Incorporated's Form 8-K/A filed with the Securities and Exchange Commission on
August 7, 1998, and to all references to our Firm included in this registration
statement.
/s/ Carbis Walker & Associates, LLP
Butler, Pennsylvania
November 13, 1998
Exhibit 23.4
Consent of Independent Public Accountants
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-8 of our reports dated
February 20, 1998, for Iron Mountain Incorporated included in Iron Mountain
Incorporated's Form 10-K for the year ended December 31, 1997, filed with the
Securities and Exchange Commission on March 27, 1998, and to all references to
our Firm included in this registration statement.
/s/ Arthur Andersen LLP
Boston, Massachusetts
November 13, 1998
Exhibit 23.5
Consent of Independent Public Accountants
We consent to the incorporation by reference in this Registration Statement on
Form S-8 of Iron Mountain Incorporated to be filed on or about November 18, 1998
of our report dated February 23, 1998, with respect to the consolidated
financial statements of Arcus Technology Services, Inc. and Arcus, Inc.
(Predecessor Company) included in Iron Mountain Incorporated's Form 8-K filed
with the Securities and Exchange Commission on March 9, 1998.
/s/ Ernst & Young LLP
Dallas, Texas
November 13, 1998
