As filed with the Securities and Exchange Commission on August 7, 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 1998 Employee Stock Purchase Plan
(Full titles 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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If, as a result of stock splits, stock dividends or similar transactions, the
number of securities purported to be registered on this Registration
Statement changes, the provisions of Rule 416 shall
apply to this Registration Statement.
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<TABLE>
<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 Share(1) Offering Price(1) Registration Fee
---------------- ---------- ------------------ ----------------- ----------------
<S> <C> <C> <C> <C>
Common Stock, par
value $.01 per share 375,000 $27.875 $10,453,125 $3,083.67
Plan Participation
Interests (2) (2) (2) (2)
<FN>
(1) With respect to the 375,000 shares issuable under the 1998 Employee
Stock Purchase Plan (the "Plan"), the proposed maximum offering price
per share 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, on the basis of the average of the
high and low prices of the Common Stock on the Nasdaq National Market
("Nasdaq") on August 5, 1998.
(2) Pursuant to Rule 416(c), an indeterminate number of participation
interests in the Plan are being registered. Pursuant to Rule 457(h)(2),
no additional filing fee is required with respect to the participation
interests in the Plan.
</FN>
</TABLE>
<PAGE>
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following additional documents, which have been filed by Iron
Mountain Incorporated (the "Company") with the Securities and Exchange
Commission (the "Commission"), are incorporated by reference in and made a part
of this Registration Statement, as of their respective dates:
(a) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1998;
(b) The Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1997;
(c) The Company's Current Report on Form 8-K dated August 7,
1998;
(d) The Company's Current Report on Form 8-K dated July 10, 1998;
(e) The Company's Current Report on Form 8-K dated April 21, 1998;
(f) The Company's Current Report on Form 8-K dated April 7, 1998;
(g) The Company's Current Report on Form 8-K dated March 30, 1998;
(h) The Company's Current Report on Form 8-K dated March 9, 1998;
(i) The Company's Current Report on Form 8-K dated February 18,
1998;
(j) The Company's Current Report on Form 8-K dated January 6,
1998; and
(k) The description of the Common Stock 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,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, 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.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares offered hereby 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 5,782 shares of Common Stock.
II - 1
<PAGE>
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.
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.*
23.3 Consent of Carbis Walker & Associates, LLP.*
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
II - 2
<PAGE>
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 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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<PAGE>
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 7th day
of August, 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 7th day of August, 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
/s/ Clarke H. Bailey
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
August 7, 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 375,000 shares of its Common Stock, par value $.01 per share
("Common Stock"), which are to be offered by the Company pursuant to the
provisions of the Company's 1998 Employee Stock Purchase Plan (the "1998 Plan")
(all such shares being referred to herein as the "Registered Shares"), 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 Delaware General Corporation Law 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 1998 Plan and the options or other
rights granted thereunder, the Registered Shares will be duly authorized,
validly issued, fully paid and nonassessable by the Company.
<PAGE>
Iron Mountain Incorporated
August 7, 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 of our
reports on the financial statements of Iron Mountain Incorporated (the Company)
dated February 20, 1998, included in the Company's annual report on Form 10-K,
incorporated by reference in this registration statement on Form S-8.
/s/ Arthur Andersen LLP
ARTHUR ANDERSEN LLP
Boston, Massachusetts
August 3, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation of our report on National Underground Storage, Inc.'s financial
statements dated July 30, 1998, included in Iron Mountain Incorporated's Current
Report on Form 8-K incorporated by reference in this registration statement on
Form S-8.
/s/ Carbis Walker & Associates, LLP
Carbis Walker & Associates, LLP
Butler, Pennsylvania
August 3, 1998
