As filed with the Securities and Exchange Commission on January 13, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------
IRON MOUNTAIN INCORPORATED
(Exact name of registrant as specified in its charter)
DELAWARE 4226 04-3107342
(State or other (primary standard Industrial (I.R.S. Employer
jurisdiction of classification code number) Identification Number)
incorporation or
organization)
745 ATLANTIC AVENUE, BOSTON, MA 02111
(617) 357-4455
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
--------------------
C. Richard Reese
Chairman of The Board of
Directors and Chief Executive Officer
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, MA 02111
(617) 357-4455
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
--------------------
Copy to:
Susan Forest Barrett, Esq.
Sullivan & Worcester LLP
One Post Office Square
Boston, MA 02109
(617) 338-2800
Approximate date of commencement of proposed sale to the public: From
time to time as soon as practicable after this Registration Statement becomes
effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. |_|
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. |_|
If this form is a post-effective amendment filed pursuant to Rule
462(d) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. |_|
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
====================================================================================================================================
Title of Each Class of Securities to Amount to be Proposed Maximum Proposed Maximum Amount of
be Registered Registered Offering Price Per Share(1) Aggregate Offering Price(1) Registration Fee
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, 1,000,000 $35.50 $ 35,500,000 $10,472.50
Par Value $.01 per share
====================================================================================================================================
<FN>
(1) The shares are to be offered at prices not presently determinable. The offering price is estimated solely for the purpose
of calculating the registration fee pursuant to Rule 457(c) under the Securities act of 1933, as amended, using the
average high and low prices reported on the Nasdaq National Market on January 8, 1998.
</FN>
</TABLE>
----------------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant will
file a further amendment which specifically states that the Registration
Statement will thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933, as amended, or until the Registration Statement will
become effective on such date as the Securities and Exchange Commission, acting
pursuant to Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there by any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
Subject to Completion
Preliminary Prospectus Dated January 13, 1998
PROSPECTUS
1,000,000 Shares
Iron Mountain Incorporated
Common Stock
----------------------
This Prospectus relates to the issuance from time to time by Iron Mountain
Incorporated (the "Company" or "Iron Mountain"), a Delaware corporation, of its
shares of common stock, par value $.01 per share (the "Common Stock"), in an
aggregate amount of up to 1,000,000 shares, upon terms to be determined at the
time of each such offering.
The Common Stock is to be offered directly by the Company in connection
with the acquisition of the assets of, or ownership interests in, certain
entities engaged in the same or similar lines of business as the Company or any
of its subsidiaries. The consideration for acquisitions will consist of shares
of Common Stock, cash, notes or other evidences of indebtedness, guarantees,
assumption of liabilities, tangible or intangible property, or a combination
thereof, as determined from time to time by negotiations between the Company and
the owners or controlling persons of the assets or ownership interests to be
acquired. In addition, the Company may lease property from and enter into
management or consulting agreements and non-competition agreements with the
former owners and key executive personnel of the businesses to be acquired.
The Company contemplates that the terms of an acquisition will be
determined by negotiations between the Company's representatives and the owners
or controlling persons of the assets or ownership interests to be acquired.
Factors taken into account in acquisitions include, among other relevant
factors, the quality and reputation of the business, the assets, liabilities,
results of operations and cash flows for the business, the quality of its
management and employees, its earnings potential, the geographic locations of
the business and the market value of the Common Stock of the Company when
pertinent. The Company anticipates that shares of Common Stock issued in any
such acquisition will be valued at a price reasonably related to the market
value of the Common Stock, either at the time the terms of the acquisitions are
tentatively agreed upon, or at or about the time of closing, or during the
period or periods prior to delivery of the shares.
The Company does not expect that underwriting discounts or commissions will
be paid, except that finders fees may be paid to persons from time to time in
connection with specific acquisitions. Any person receiving any such fees may be
deemed to be an underwriter within the meaning of the Securities Act of 1933, as
amended (the "Securities Act").
The Common Stock is traded on the Nasdaq National Market System under
the symbol "IMTN." On January 8, 1998 the closing sale price of the Common Stock
on the Nasdaq National Market System was $35.50 per share.
----------------------
See "RISK FACTORS" at page 6 for certain information that should be
considered by prospective investors.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS
THE SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COM-
MISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
----------------------
The date of this Prospectus is ______________, 1998.
<PAGE>
AVAILABLE INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission") in Washington, D.C., a registration statement on Form S-4
(together with all exhibits, schedules and amendments thereto, the "Registration
Statement") under the Securities Act, with respect to the Common Stock. This
Prospectus, which is a part of the Registration Statement, does not contain all
of the information set forth in the Registration Statement. Statements in this
Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance reference is made to the copy of such
contract or other documents filed as an exhibit to the Registration Statement,
each such statement being qualified in all respects by such reference and the
exhibits and schedules thereto. For further information concerning the Company
and the Common Stock, reference is made to the Registration Statement. Copies of
the Registration Statement may be obtained from the Commission at its principal
office in Washington, D.C. upon payment of the prescribed fee.
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance
therewith, files reports and other information with the Commission. The
Registration Statement, the exhibits and schedules forming a part thereof and
the reports, proxy statements and other information filed by the Company with
the Commission can be inspected and copies obtained at the public reference
facilities maintained by the Commission at Judiciary Plaza, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549, and at the following regional offices of
the Commission: Chicago Regional Office, Suite 1400, 500 West Madison Street,
Chicago, Illinois 60661-2511; and New York Regional Office, Seven World Trade
Center, New York, New York 10048. Copies of such material can be obtained at
prescribed rates from the Public Reference Section of the Commission at its
principal office at 450 Fifth Street, N.W., Washington, D.C. 20549. The
Commission maintains a World Wide Web site that contains reports, proxy and
information statements and other information regarding registrants, including
the Company, that file electronically with the Commission. The address of the
site is http://www.sec.gov. In addition, reports, proxy statements and other
information concerning the Company may be inspected at the offices of Nasdaq
operations, 1735 K Street N.W., Washington, D.C. 20006.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by Iron Mountain with the
Commission (file no. 0-27584) pursuant to the Exchange Act, are hereby
incorporated in this Prospectus and specifically made a part hereof by
reference: (i) Annual Report on Form 10-K for the fiscal year ended December 31,
1996 (the "Annual Report"), (ii) Quarterly Reports on Form 10-Q for the quarters
ended March 31, 1997, June 30, 1997 and September 30, 1997, (iii) Current
Reports on Form 8-K dated June 25, 1997 (as amended August 26, 1997), October 1,
1997, October 16, 1997 (as amended November 10, 1997), October 30, 1997,
November 25, 1997 and January 13, 1998, and (iv) the description of the Common
Stock contained in the Company's Registration Statement on Form 8-A dated
January 18, 1996. In addition, the financial information contained in Iron
Mountain's Registration Statements on Form S-4 (i) File No. 333-24635, filed
with the Commission on April 4, 1997, as amended on May 7, 1997 and May 13,
1997, as made effective by the Commission on May 14, 1997, and (ii) file no.
333-41715, filed with the Commission on December 8, 1997, as made effective by
the Commission on December 11, 1997 is incorporated herein by reference. All
documents filed by Iron Mountain pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the initial Registration Statement
and prior to the effectiveness of the Registration Statement and subsequent to
the date of this Prospectus and prior to the termination of the offering of the
Common Stock shall be deemed to be incorporated by reference into the
Registration Statement and to be a part hereof from the respective dates of
filing of any such documents.
Any statement contained herein or in a document incorporated or deemed to
be incorporated herein by reference shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
(or in the applicable Prospectus Supplement), or in any other subsequently filed
document that also is or is deemed to be incorporated herein by reference,
modifies or supersedes such statement.
2
<PAGE>
Any such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person to
whom this Prospectus is delivered, upon the written or oral request of such
person, a copy of any and all of the information that has been incorporated by
reference in this Prospectus (excluding exhibits unless such exhibits are
specifically incorporated by reference into the information that this Prospectus
incorporates). Requests for such copies should be made to the Company at its
principal executive offices, 745 Atlantic Avenue, Boston, Massachusetts 02111,
Attention: John F. Kenny, Jr., Executive Vice President and Chief Financial
Officer.
THE COMPANY
Iron Mountain is America's largest records management company, as measured
by its revenues. The Company is a national, full-service provider of records
management and related services, enabling customers to outsource records
management functions. Iron Mountain has a diversified customer base, which
includes more than half of the Fortune 500 and numerous commercial, legal,
banking, healthcare, accounting, insurance, entertainment and government
organizations. The Company provides storage and related services for all major
media, including paper (the dominant form of record storage), computer disk and
tapes, microfilm and microfiche, master audio and video tapes, film and optical
disks, X-rays and blueprints. Iron Mountain's principal services provided to its
storage customers include courier pick-up and delivery, filing, retrieval and
destruction of records, database management, customized reporting and disaster
recovery support. The Company also sells storage materials and provides
consulting, facilities management, information technology staffing and other
outsourcing services.
Iron Mountain was incorporated in Delaware in 1990 but its predecessor
operations date from 1951. The principal executive officers of the Company are
located at 745 Atlantic Avenue, Boston, Massachusetts 02111. Its telephone
number is (617) 357-4455.
3
<PAGE>
SELECTED CONSOLIDATED FINANCIAL AND OPERATING INFORMATION
(In thousands, except per share amounts)
The following selected consolidated statements of operations and balance
sheet data of the Company as of and for each of the years ended December 31,
1992, 1993, 1994, 1995 and 1996 have been derived from the Company's audited
consolidated financial statements. The selected consolidated statements of
operations and balance sheet data of the Company for the nine months ended
September 30, 1996 and 1997 have been derived from the Company's unaudited
condensed consolidated financial statements. The Company's unaudited condensed
consolidated financial statements include all adjustments, consisting of normal
recurring accruals, that the Company considers necessary for a fair presentation
of the financial position and the results of operations for those periods.
Operating results for the nine months ended September 30, 1997 are not
necessarily indicative of the results for the entire year ending December 31,
1997. The selected consolidated financial and operating information set forth
below should be read in conjunction with Iron Mountain's Consolidated Financial
Statements and the Notes thereto incorporated by reference herein. See
"Incorporation of Certain Documents by Reference."
<TABLE>
<CAPTION>
Nine Months
Year Ended December 31, Ended September 30,
----------------------------------------------- ------------------
1992 1993 1994 1995 1996 1996 1997
-------- ------- ------- --------- --------- ------- ---------
Consolidated Statements of Operations Data:
Revenues:
<S> <C> <C> <C> <C> <C> <C> <C>
Storage................................. $44,077 $48,892 $54,098 $ 64,165 $ 85,826 $61,419 $ 86,199
Service and Storage Material Sales...... 26,596 32,781 33,520 40,271 52,892 38,550 57,195
-------- ------- ------- --------- --------- ------- ---------
Total Revenues..................... 70,673 81,673 87,618 104,436 138,718 99,969 143,394
Operating Expenses:
Cost of Sales (Excluding Depreciation).. 35,169 43,054 45,880 52,277 70,747 51,091 73,742
Selling, General and Administrative..... 17,630 19,971 20,853 26,035 34,342 24,762 35,682
Depreciation and Amortization........... 5,780 6,789 8,690 12,341 16,936 11,896 18,495
-------- ------- ------- --------- --------- ------- ---------
Total Operating Expenses........... 58,579 69,814 75,423 90,653 122,025 87,749 127,919
-------- ------- ------- --------- --------- ------- ---------
Operating Income........................... 12,094 11,859 12,195 13,783 16,693 12,220 15,475
Interest Expense........................... 8,412 8,203 8,954 11,838 14,901 9,981 17,631
-------- ------- ------- --------- --------- ------- ---------
Income (Loss) Before Provision (Credit) for
Income Taxes............................ 3,682 3,656 3,241 1,945 1,792 2,239 (2,156)
Provision (Credit) for Income Taxes........ 2,095 2,088 1,957 1,697 1,435 1,542 (346)
-------- ------- ------- --------- --------- ------- ---------
Income (Loss) Before Extraordinary Charge.. 1,587 1,568 1,284 248 357 697 (1,810)
Extraordinary Charge, Net of Tax Benefit (1) -- -- -- -- 2,216 -- --
-------- ------- ------- --------- --------- ------- ---------
Net Income (Loss).......................... 1,587 1,568 1,284 248 (1,769) 697 (1,810)
Accretion of Redeemable Put Warrant........ 626 940 1,412 2,107 280 280 --
-------- ------- ------- --------- --------- ------- ---------
Net Income (Loss) Applicable to Common
Stockholders............................ $ 961 $ 628 $ (128) $ (1,859) $ (2,049) $ 417 $ (1,810)
======== ======= ======= ========= ========= ======= =========
Income (Loss) Before Extraordinary Item per
Common and Common Equivalent Share...... $ 0.12 $ 0.08 $ (0.02) $ (0.24) $ 0.01 $ 0.04 $ (0.17)
Net Income (Loss) per Common and Common
Equivalent Share........................ $ 0.12 $ 0.08 $ (0.02) $ (0.24) $ (0.20) $ 0.04 $ (0.17)
Weighted Average Common and Common
Equivalent Shares Outstanding........... 8,052 8,067 7,984 7,784 10,137 10,101 10,906
Other Data:
EBITDA (2)................................. $17,874 $18,648 $20,885 $ 26,124 $ 33,629 $24,116 $ 33,970
EBITDA as a Percentage of Total Revenues... 25.3 % 22.8 % 23.8 % 25.0% 24.2% 24.1 % 23.7%
Capital Expenditures:
Growth (3)(4)........................... $11,226 $13,605 $15,829 $ 14,395 $ 23,334 $16,610 $ 20,074
Maintenance............................. 818 1,846 1,151 858 1,112 803 544
-------- ------- ------- --------- --------- ------- ---------
Total Capital Expenditures (4)............. $12,044 $15,451 $16,980 $ 15,253 $ 24,446 $17,413 $ 20,618
======== ======= ======= ========= ========= ======= =========
Additions to Customer Acquisition Costs.... $ 1,268 $ 922 $ 1,366 $ 1,379 $ 1,642 $ 1,265 $ 688
(continued on next page)
4
<PAGE>
<CAPTION>
As of December 31, As of
----------------------------------------------- September 30,
1992 1993 1994 1995 1996 1997
--------- -------- -------- ------- -------- ---------
Consolidated Balance Sheet Data:
<S> <C> <C> <C> <C> <C> <C>
Cash and Cash Equivalents.................. $ 498 $ 591 $ 1,303 $ 1,585 $ 3,453 $ 2,242
Total Assets............................... 115,429 125,288 136,859 186,881 281,799 451,099
Total Debt................................. 73,304 78,460 86,258 121,874 184,733 274,368
Stockholders' Equity....................... 23,419 24,047 22,869 21,011 52,384 113,945
- ---------------
<FN>
(footnotes from the preceding page)
(1) The extraordinary charge for 1996 consists of a prepayment penalty, the
write-off of deferred financing costs, original issue discount and loss on
termination of interest rate protection agreements.
(2) Based on its experience in the records management industry, the Company
believes that earnings before interest, taxes, depreciation, amortization
and extraordinary items ("EBITDA") is an important tool for measuring the
performance of records management companies (including potential acquisition
targets) in several areas, such as liquidity, operating performance and
leverage. In addition, lenders use EBITDA as a criterion in evaluating
records management companies, and substantially all of the Company's
financing agreements contain covenants in which EBITDA is used as a measure
of financial performance. However, EBITDA should not be considered an
alternative to operating or net income (as determined in accordance with
GAAP) as an indicator of the Company's performance or to cash flow from
operations (as determined in accordance with GAAP) as a measure of
liquidity.
(3) Growth capital expenditures include investments in racking systems, new
buildings and leasehold improvements, equipment for new facilities,
management information systems and facilities restructuring.
(4) Includes $2,901 in 1994 related to the cost of constructing a records
management facility which was sold in a sale-leaseback transaction in the
fourth quarter of 1994.
</FN>
</TABLE>
5
<PAGE>
RISK FACTORS
Investors should carefully consider the following risk factors, in
addition to the other information contained in this Prospectus and any
Prospectus Supplement, before purchasing any of the Common Stock. This
Prospectus sets forth or incorporates by reference forward-looking statements
within the meaning of Section 27A of the Securities Act, such as those regarding
the goals, beliefs, plans or current expectations of the Company and its
management and other statements contained in this Prospectus regarding matters
that are not historical facts. Because such forward-looking statements include
risks and uncertainties, actual results may differ materially from those
expressed in or implied by such forward-looking statements. Factors that could
cause actual results to differ materially include, but are not limited to, the
risk factors set forth below and the matters set forth or incorporated by
reference in this Prospectus generally and any Prospectus Supplement. The
Company undertakes no obligation to release publicly the results of any
revisions to these forward-looking statements that may be made to reflect future
events or circumstances or to reflect unanticipated events.
Risks Associated with Acquisition Strategy
Iron Mountain has pursued and intends to continue to pursue
acquisitions of records management and related service businesses as a key
component of its growth strategy. Certain risks are inherent in an acquisition
strategy, such as increasing leverage and debt service requirements and
combining disparate company cultures and facilities, which could adversely
affect Iron Mountain's operating results. The success of any completed
acquisition will depend in part on Iron Mountain's ability to integrate
effectively the acquired businesses into Iron Mountain. The process of
integrating such acquired businesses may involve unforeseen difficulties and may
require a disproportionate amount of management's attention and Iron Mountain's
financial and other resources. No assurance can be given that additional
suitable acquisition candidates will be identified, financed and purchased on
acceptable terms, or that recent acquisitions or future acquisitions, if
completed, will be successful.
In September, 1997 Iron Mountain amended and restated its bank
facility, dated as of September 30, 1996 among Iron Mountain, the lenders party
thereto and The Chase Manhattan Bank, as Administrative Agent (the "Credit
Agreement"). Under the terms of the Credit Agreement, acquisitions by Iron
Mountain involving in excess of: (i) $65 million (other than the acquisition of
Arcus Group, Inc. (the "Arcus Acquisition") and the acquisition of HIMSCORP,
Inc. ("HIMSCORP")) for any one acquisition and (ii) $150 million in the
aggregate or $100 million in cash for 1998 or any subsequent year require the
approval of lenders holding 51% or more of the commitments under the Credit
Agreement. No assurance can be given that the lenders will consent to any
acquisitions that Iron Mountain proposes to make in excess of such limits.
The size, timing and integration of possible future acquisitions may
cause substantial fluctuations in operating results from quarter to quarter. As
a result, operating results for any quarter may not be indicative of the results
that may be achieved for any subsequent fiscal quarter or for a full fiscal
year.
Competition; Alternative Technologies
Iron Mountain has one or more competitors in all geographic areas where
it operates. Iron Mountain believes that competition for customers is based on
price, reputation for reliability, quality of service and scope and scale of
technology, and believes that it generally competes effectively based on these
factors. As a result of this competition, the records management industry has
for the past several years experienced downward pricing pressures. While Iron
Mountain believes that this pricing climate is stabilizing, there can be no
assurance that prices will not decline further, as competitors seek to gain or
preserve market share. Should a further downward trend in pricing occur or
continue for an extended period of time, it could have a material adverse effect
on Iron Mountain's results of operations. Iron Mountain also competes for
acquisition candidates. Some of Iron Mountain's competitors may possess greater
financial and other resources than Iron Mountain. If any such competitor were to
devote additional resources to the records management business and such
acquisition candidates or to focus its strategy on Iron Mountain's markets, Iron
Mountain's results of operations could be adversely affected. In addition, Iron
Mountain faces competition from the internal document handling capability of its
current and potential customers. There can
6
<PAGE>
be no assurance that these organizations will outsource more of their document
management needs or that they will not bring in-house some or all of the
functions they currently outsource.
The substantial majority of Iron Mountain's revenues have been derived
from the storage of paper documents and from related services. Such storage
requires significant physical space. Alternative technologies for generating,
capturing, managing, transmitting and storing information have been developed,
many of which require significantly less space than paper. Such technologies
include computer media, microforms, audio/video tape, film, CD-ROM and optical
disk. None of these technologies has replaced paper as the principal means for
storing information. However, there can be no assurance that one or more
non-paper-based technologies (whether now existing or developed in the future)
may not in the future reduce or supplant the use of paper as a preferred medium,
which could in turn adversely affect Iron Mountain's business.
Financial Leverage; Debt Service Requirements
Iron Mountain is highly leveraged due to the substantial indebtedness
it has incurred primarily to finance acquisitions and expand its operations.
Iron Mountain expects to continue to borrow under the Credit Agreement and
possible future credit arrangements in order to finance possible future
acquisitions and for general corporate purposes.
The ability of Iron Mountain to repay its indebtedness depends upon
future operating performance, which is subject to the success of Iron Mountain's
business strategy, prevailing economic conditions, levels of interest rates and
financial, business and other factors, many of which are beyond Iron Mountain's
control. The debt service obligations of Iron Mountain could have important
consequences, including the following: (i) the ability of Iron Mountain to
obtain additional financing for future working capital needs or for possible
future acquisitions or other purposes may be limited; (ii) a substantial portion
of Iron Mountain's cash flow from operations will be dedicated to the payment of
principal and interest on its indebtedness, thereby reducing funds available for
other purposes; (iii) Iron Mountain may be more vulnerable to adverse economic
conditions than some of its competitors and thus may be limited in its ability
to withstand competitive pressures; and (iv) Iron Mountain may be more highly
leveraged than certain of its competitors, which may place it at a competitive
disadvantage.
A substantial portion of Iron Mountain's cash flow from operations is
required for debt service. Management believes that cash flow from operations in
conjunction with borrowings from existing and possible future credit facilities
will be sufficient for the foreseeable future to meet debt service requirements
and to make possible future acquisitions and capital expenditures. However,
there can be no assurance in this regard, and Iron Mountain's leverage could
make it vulnerable to a downturn in the operating performance of its
subsidiaries, a downturn in economic conditions or, because borrowings under the
Credit Agreement bear interest at rates which fluctuate, increases in interest
rates on borrowings under the Credit Agreement. If such cash flow were not
sufficient to meet such debt service requirements or payments of principal, Iron
Mountain could be required to sell additional equity securities, refinance its
obligations or dispose of assets in order to make such scheduled payments. There
can be no assurance that Iron Mountain would be able to effect any of such
transactions or do so on favorable terms.
Casualty
Iron Mountain currently maintains and intends to continue to maintain,
to the extent such insurance is available on commercially reasonable terms,
comprehensive liability, fire, flood and earthquake (where appropriate) and
extended coverage insurance with respect to the properties that it now owns or
leases or that it may in the future own or lease, with customary limits and
deductibles. Certain types of loss, however, may not be fully insurable on a
cost-effective basis, such as losses from earthquakes, or may be altogether
uninsurable, such as losses from riots. Iron Mountain has in the past suffered
damages and losses from an earthquake and a riot in California, which damages
and losses were substantially covered by insurance. In March 1997, Iron Mountain
experienced three fires, all of which authorities have determined were caused by
arson and which resulted in extensive damage to one and destruction of the
Company's other records management facility in South Brunswick Township, New
Jersey. Iron Mountain has filed several insurance claims related to the South
Brunswick fires, including a significant claim under its business interruption
insurance policy. Some of the Company's customers or their insurance carriers
have asserted claims or filed lawsuits as a consequence of the destruction of or
damage to their records due to the fires. The Company is a defendant in three
such lawsuits. The outcome of these claims and proceedings cannot be
7
<PAGE>
predicted. Based on its present assessment of the situation, after consultation
with legal counsel, management does not believe that the outcome of these claims
and lawsuits will have a material adverse effect on Iron Mountain's financial
condition or results of operations, although there can be no assurance in this
regard.
In the future, should uninsured losses or damages occur, Iron Mountain
could lose both its investment in and anticipated profits and cash flow from the
affected property and may continue to be obligated on any leasehold obligations,
mortgage indebtedness or other obligations related to such property. As a
result, any such loss could materially adversely affect Iron Mountain.
History of Losses; EBITDA Objective
Iron Mountain has a history of experiencing net losses applicable to
common stockholders. Such net losses are attributable in part to significant
non-cash charges associated with Iron Mountain's pursuit of its growth strategy,
namely, (i) depreciation and amortization expenses associated with expansion of
Iron Mountain's storage capacity and (ii) goodwill amortization associated with
acquisitions accounted for under the purchase method. In addition, net income
applicable to common stockholders has been negatively affected by a charge for
accretion of a redeemable put warrant and, in 1996, by an extraordinary charge
related to the early retirement of debt. The put warrant was redeemed in
February 1996, upon completion of Iron Mountain's initial public offering.
Iron Mountain's primary financial objective is to increase its earnings
before interest, taxes, depreciation, amortization and extraordinary items
("EBITDA"), which is a source of funds to service indebtedness and for
investment in continued internal growth and growth through acquisitions, and not
net income and net income applicable to common stockholders. Iron Mountain has
benefited from growth in EBITDA, while net losses applicable to common
stockholders have increased over such period. Based on its experience in the
records management industry, Iron Mountain believes that EBITDA is an important
tool for measuring the performance of records management companies (including
potential acquisition targets) in several areas, such as liquidity, operating
performance and leverage. In addition, lenders use EBITDA as a criterion in
evaluating records management companies, and Iron Mountain's financing
agreements contain covenants in which EBITDA is used as a measure of financial
performance. Other measures of Iron Mountain's financial performance, such as
net income and net income applicable to common stockholders, have been
negatively affected by pursuit of Iron Mountain's objective to increase EBITDA
and may be negatively affected in the future. In addition, execution of Iron
Mountain's growth strategy could result in future net losses due to increased
interest expense associated with borrowings under the Credit Agreement and
possible future credit arrangements and increased depreciation and amortization
expenses.
Anti-Takeover Effect of Certain Provisions of Iron Mountain's Certificate of
Incorporation, By-Laws and the Notes Indentures
Certain provisions of Iron Mountain's Amended and Restated Certificate
of Incorporation (the "Restated Certificate") and Iron Mountain's By-Laws (the
"By-Laws") could have the effect of making it more difficult for a third party
to acquire, or discouraging a third party from acquiring, a majority of the
outstanding capital stock of Iron Mountain and could make it more difficult to
consummate certain types of transactions involving an actual or potential change
in control of Iron Mountain, such as a merger, tender offer or proxy contest.
The Restated Certificate also provides for three classes of Directors, as equal
in number as possible, to be elected on a staggered basis (one class per year).
As a result of such a provision, it would generally require at least two
elections of the Iron Mountain Board of Directors (the "Iron Mountain Board") to
replace a majority of the members of the Iron Mountain Board, thereby enabling
existing management to exercise significant control over Iron Mountain's affairs
during such period. Pursuant to the Restated Certificate, shares of preferred
stock, $.01 par value per share (the "Preferred Stock") may be issued in the
future without further stockholder approval and upon such terms and conditions,
and having such rights, privileges and preferences (including the right to vote
and the right to convert into Common Stock), as the Iron Mountain Board may
determine. Pursuant to the By-Laws, approximately 4 million shares of Common
Stock that were issued by the Company in five acquisitions are subject to
restrictions on transfer for varying periods of time, all of which expire by
January 1999. A significant portion of such shares are held by affiliates.
8
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Iron Mountain currently has outstanding $165,000,000 in aggregate
principal amount of 10 1/8% Senior Subordinated Notes due 2006 issued in October
1996 (the "1996 Notes") and $250,000,000 in aggregate principal amount of 8 3/4%
Senior Subordinated Notes due 2009 issued in October 1997 (the "1997 Notes;" and
collectively with the 1996 Notes, the "Senior Subordinated Notes"). Under
certain circumstances relating to a change of control of Iron Mountain (a
"Change of Control") as set forth in the indentures for the Senior Subordinated
Notes (the "Notes Indentures"), Iron Mountain will be required to make an offer
to purchase all of the outstanding Senior Subordinated Notes at a purchase
price, in cash, equal to 101% of the principal amount thereof plus accrued and
unpaid interest, if any, to the date of purchase. There can be no assurance that
Iron Mountain would be able to obtain such funds through a refinancing of the
Senior Subordinated Notes to be purchased or otherwise, or that the purchase
would be permitted under the Credit Agreement. Also, the requirement that Iron
Mountain make an offer to purchase all of the Senior Subordinated Notes then
outstanding in the event of a Change of Control may have the effect of deterring
a third party from effecting a transaction that would constitute a Change of
Control.
Control by Principal Stockholders
The voting power held by certain large stockholders of Iron Mountain
may have the effect of discouraging certain types of transactions involving an
actual or potential change of control of Iron Mountain, including transactions
in which the holders of Common Stock might otherwise receive a premium for their
shares over then-current market prices. In addition, as a result of such voting
power such stockholders have the ability to significantly affect the election of
Directors of Iron Mountain who, in turn, control the management and affairs of
Iron Mountain.
Environmental Matters
As of September 30, 1997, Iron Mountain owned or leased over 150
records management facilities. Under various federal, state and local
environmental laws, ordinances and regulations ("Environmental Laws"), an owner
of real estate or a lessee conducting operations thereon may become liable for
the costs of investigation, removal or remediation of soil and groundwater
contaminated by certain hazardous substances or wastes or petroleum products.
Certain such laws impose cleanup responsibility and liability without regard to
whether the owner or operator of the real estate or operations thereon knew of
or was responsible for the contamination, and whether or not operations at the
property have been discontinued or title to the property has been transferred.
In addition, the presence of such substances, or the failure to properly
remediate such property, may adversely affect the current property owner's or
operator's ability to sell or rent such property or to borrow using such
property as collateral. The owner or operator of contaminated real estate also
may be subject to common law claims by third parties based on damages and costs
resulting from off-site migration of the contamination.
Certain Environmental Laws govern the removal, encapsulation or
disturbance of asbestos-containing materials ("ACMs"). Such laws may impose
liability for release of ACMs and may enable third parties to seek recovery from
owners or operators of real estate for personal injury associated with exposure
to such substances. Certain facilities operated by Iron Mountain contain or may
contain ACMs. In addition, certain of the properties formerly or currently owned
or operated by Iron Mountain were previously used for industrial or other
purposes that involved the use or storage of hazardous substances or petroleum
products or the generation and disposal of hazardous wastes, and in some
instances, included the operation of underground storage tanks ("USTs"). In
connection with its former and current ownership or operation of certain
properties, Iron Mountain may be potentially liable for environmental costs such
as those discussed above. Iron Mountain has from time to time conducted certain
environmental investigations and remedial activities at certain of its former
and current facilities, but an in-depth environmental review of all properties
has not yet been conducted by or on behalf of Iron Mountain.
Iron Mountain believes it is in substantial compliance with all
applicable material Environmental Laws. No assurance can be given that there
are, or as a result of possible future acquisitions there will be, no
environmental conditions for which Iron Mountain might be liable in the future
or that future regulatory action, as well as compliance with future
Environmental Laws, will not require Iron Mountain to incur costs for or at its
properties that could have a material adverse effect on Iron Mountain's
financial condition and results of operations.
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No Intention to Pay Dividends
Iron Mountain has never declared or paid cash dividends on its capital
stock. Iron Mountain intends to retain future earnings for use in its business
and does not anticipate declaring or paying any cash dividends on shares of
Common Stock in the foreseeable future. In addition, Iron Mountain is currently
restricted under the terms of the Credit Agreement and the Notes Indentures from
declaring or paying cash dividends on its Common Stock.
DESCRIPTION OF CAPITAL STOCK
The following description of the capital stock of Iron Mountain and
certain provisions of the Restated Certificate and the By-Laws is a summary and
is qualified in its entirety by reference to the Restated Certificate and the
By-Laws.
Iron Mountain's authorized capital stock consists of 100,000,000 shares
of Common Stock, 1,000,000 shares of nonvoting common stock, par value $.01 per
share (the " Nonvoting Common Stock"), and 2,000,000 shares of Preferred Stock.
No shares of Preferred Stock have been issued. There were 13,452,917 shares of
Common Stock held by 219 holders of record and no shares of Nonvoting Common
Stock issued and outstanding as of January 5, 1998.
Common Stock
The rights of holders of the Common Stock and the Nonvoting Common
Stock are identical in all respects except voting and convertibility.
Dividends. Holders of record of shares of Common Stock and Nonvoting
Common Stock on the record date fixed by the Iron Mountain Board are entitled to
receive such dividends as may be declared by the Iron Mountain Board out of
funds legally available for such purpose. No dividends may be declared or paid
in cash or property on any share of either class, however, unless simultaneously
the same dividend is declared or paid on each share of the other class. In the
case of any stock dividend, holders of each class are entitled to receive the
same percentage dividend (payable in shares of that class) as the holders of the
other class.
Iron Mountain is currently restricted under the terms of the Credit
Agreement and the Notes Indentures from paying cash dividends on the Common and
Nonvoting Common Stock. Even if funds were to be available, Iron Mountain does
not intend to pay dividends in the foreseeable future.
Voting Rights. Except as otherwise required by law, on each matter
submitted for a vote of stockholders, holders of shares of Common Stock are
entitled to one vote per share and holders of Nonvoting Common Stock are not
entitled to vote.
Under the Restated Certificate, the vote of holders of at least 80% of
the voting power of all outstanding shares of capital stock entitled to vote
generally in the election of Directors, voting together as a single class (the
"Voting Power"), is required for the amendment or repeal of, or the adoption of
any provision inconsistent with, provisions of the Restated Certificate
establishing a classified Board of Directors. The vote of holders of at least
662/3% of such Voting Power is required for the amendment or repeal of, or the
adoption of any provision inconsistent with, provisions of the Restated
Certificate authorizing the Preferred Stock, Common Stock and Nonvoting Common
Stock or specifying the terms of the Common Stock and the Nonvoting Common Stock
(including any amendment to increase any shares of authorized capital stock).
Certain other provisions also require such a 662/3% vote. See "DGCL and Certain
Provisions of the Restated Certificate and the By-Laws." There are no cumulative
voting rights in the election of the Board of Directors of the Company.
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Conversion Provisions. Shares of Nonvoting Common Stock are
convertible, at any time at the option of the holder, on a share-for-share basis
into shares of Common Stock without the payment of any additional consideration;
provided that the conversion of any shares of Nonvoting Common Stock by a "bank
holding company" under the Bank Holding Company Act of 1956, as amended, or an
affiliate thereof is prohibited if the conversion of the total number of shares
of Nonvoting Common Stock held by such holder would cause it to be in violation
of such Act.
Liquidation Rights. Upon liquidation, dissolution or winding-up of Iron
Mountain, the holders of Common Stock and Nonvoting Common Stock are entitled to
share ratably (based on the number of shares held) in all assets available for
distribution after payment in full of creditors and payment in full to any
holders of Preferred Stock then outstanding of any amount required to be paid
under the terms of such Preferred Stock.
Other Provisions. The outstanding shares of Common Stock and Nonvoting
Common Stock are validly issued, fully paid and nonassessable. In any merger,
consolidation or business combination, holders of each class will receive
identical consideration, except that in any such transaction in which shares of
stock are distributed, such shares may differ as to voting rights to the extent
that voting rights now differ between the two classes. Neither class may be
subdivided, consolidated, reclassified or otherwise changed unless,
concurrently, the other class is subdivided, consolidated, reclassified or
otherwise changed in the same proportion and in the same manner.
The Transfer Agent and Registrar for the Common Stock is Boston
Equiserve Limited Partnership, 150 Royall Street, Canton, Massachusetts 02021
(telephone number (781) 575-2000).
The Iron Mountain Board has the power to issue shares of authorized but
unissued Common Stock and Nonvoting Common Stock without further stockholder
action. The holders of Common Stock and Nonvoting Common Stock are not entitled
to preemptive or subscription rights. The issuance of such unissued shares could
have the effect of diluting the earnings per share and book value per share of
currently outstanding shares of Common Stock.
Preferred Stock
The authorized and unissued shares of Preferred Stock may be issued
with such designations, preferences, limitations and relative rights as the Iron
Mountain Board may authorize including, but not limited to: (i) the distinctive
designation of each series and the number of shares that will constitute such
series; (ii) the voting rights, if any, of shares of such series; (iii) the
dividend rate on the shares of such series, any restriction, limitation or
condition upon the payment of such dividends, whether dividends shall be
cumulative, and the dates on which dividends are payable; (iv) the prices at
which, and the terms and conditions on which, the shares of such series may be
redeemed, if such shares are redeemable; (v) the purchase or sinking fund
provisions, if any, for the purchase or redemption of shares of such series;
(vi) any preferential amount payable upon shares of such series in the event of
the liquidation, dissolution or winding-up of Iron Mountain or the distribution
of its assets; and (vii) the price or rates of conversion at which, and the
terms and conditions on which the shares of such series may be converted into
other securities, if such shares are convertible. Although Iron Mountain has no
present intention to issue shares of Preferred Stock, the issuance of Preferred
Stock, or the issuance of rights to purchase such shares, could discourage an
unsolicited acquisition proposal and the rights of holders of Common Stock will
be subject to, and may be adversely affected by, the rights of holders of any
Preferred Stock that may be issued in the future.
DGCL AND CERTAIN PROVISIONS OF THE RESTATED CERTIFICATE
AND THE BY-LAWS
The Restated Certificate and the By-Laws contain certain provisions
that could delay or make more difficult the acquisition of Iron Mountain by
means of a tender offer, a proxy contest or otherwise. These provisions, as
described below, are expected to discourage certain types of coercive takeover
practices and inadequate takeover bids and to encourage persons seeking to
acquire control of Iron Mountain first to negotiate with Iron Mountain. Iron
Mountain believes that the benefits of increased protection of its ability to
negotiate with the proponent of an unfriendly or unsolicited proposal to acquire
or
11
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restructure Iron Mountain outweigh the disadvantages of discouraging such
proposals because, among other things, negotiations with respect to such
proposals could result in an improvement of their terms.
Classified Board of Directors
The Restated Certificate and the By-Laws provide for a Board of
Directors that is divided into three classes of Directors, as nearly equal in
number as possible, with the term of each class expiring in a different year.
The By-Laws provide that the number of Directors will be fixed from time to time
exclusively by the Iron Mountain Board, but shall consist of not more than 15
nor less than three Directors. The classified Iron Mountain Board is intended to
promote continuity and stability of Iron Mountain's management and policies
since a majority of the Directors at any given time will have prior experience
as Directors of Iron Mountain. Such continuity and stability facilitates
long-range planning of Iron Mountain's business and ensures the quality of its
business operations. The classification of Directors has the effect of making it
more difficult to change the composition of the Iron Mountain Board. At least
two annual stockholder meetings, instead of one, would be required to effect a
change in the majority control of the Iron Mountain Board, except in the event
of vacancies resulting from removal (in which case the remaining Directors will
fill the vacancies so created). See "--Removal of Directors; Filling Vacancies
on the Iron Mountain Board."
Removal of Directors; Filling Vacancies on the Iron Mountain Board
The Restated Certificate and Iron Mountain By-Laws provide that an Iron
Mountain Director may be removed by the stockholders only for cause at any time
during such Director's term of office by affirmative vote of the holders of at
least 80% of the Voting Power.
The By-Laws and the Restated Certificate both provide that a vacancy on
the Iron Mountain Board, including a vacancy created by an increase in the size
of the Iron Mountain Board by the Directors, may be filled by a majority of the
remaining Directors or by a sole remaining Director, or if no Directors remain,
then by the stockholders. The Restated Certificate also provides that any
Director elected by the Iron Mountain Board to replace another Director of a
given class of Directors will hold office until the next election of such class
of Directors. These provisions are to ensure that a third party would be
precluded from removing incumbent Directors and simultaneously gaining control
of the Iron Mountain Board by filling the vacancies created by such removal with
its own nominees. Moreover, even if the holders of the outstanding Common Stock
were to vote to remove Directors for cause, only the remaining Directors would
have the power to fill the vacancies created by such removal, unless such vote
provided for the removal of the entire Iron Mountain Board for cause.
Amendment of Certain Provisions of the Restated Certificate and the By-Laws
The Restated Certificate and the By-Laws contain provisions requiring
the affirmative vote of the holders of at least 662/3% of the Voting Power to
amend certain provisions of the Restated Certificate and the By-Laws. This
supermajority voting provision also applies to (i) the provisions of the
Restated Certificate authorizing Iron Mountain to release its Directors from any
liability for monetary damages as a result of any breach of their fiduciary
duties, with certain exceptions mandated by the DGCL, and (ii) the provisions
allowing for the indemnification of officers and Directors of Iron Mountain. The
Restated Certificate provides that the By-Laws may be amended only by a majority
of the full Iron Mountain Board or by the stockholders holding at least 662/3%
of the Voting Power. The DGCL provides that by-laws may not be amended by a
corporation's Board of Directors unless the corporation's certificate of
incorporation expressly authorizes such amendments by the Board of Directors;
the Restated Certificate includes such a provision. Under the Restated
Certificate, at least 80% of the Voting Power is required to approve amendments
to those provisions of the Restated Certificate or Iron Mountain By-Laws
establishing a classified Board, specifying notice requirements for stockholder
nominations of Directors or business to be brought by a stockholder before an
annual meeting and limiting the rights of stockholders to remove Directors or
fill vacancies on the Iron Mountain Board, to call special meetings or to effect
actions by written consent.
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Stockholder Actions and Meetings
Iron Mountain's Restated Certificate provides that stockholder action
may be taken only at an annual or special meeting of stockholders and prohibits
stockholders action by written consent in lieu of a meeting. The Restated
Certificate and Iron Mountain By-Laws provide that special meetings of
stockholders can be called by the Chairman of the Board of Directors, if any, or
the Iron Mountain Board pursuant to a resolution approved by a majority of the
members of the Iron Mountain Board. The business permitted to be conducted at
any special meeting of stockholders is limited to the business brought before
the meeting by the Iron Mountain Board. The By-Laws set forth an advance notice
procedure with regard to the nomination, other than by or at the direction of
the Iron Mountain Board, of candidates for election as directors and with regard
to business brought before an annual meeting of stockholders of Iron Mountain.
Delaware Anti-Takeover Statute.
Subject to certain exceptions set forth therein, Section 203 of the
DGCL provides that a corporation shall not engage in any business combination
with any "interested stockholder" for a three-year period following the date
that such stockholder becomes an interested stockholder unless (i) prior to such
date, the board of directors of the corporation approved either the business
combination or the transaction that resulted in the stockholder becoming an
interested stockholder, (ii) upon consummation of the transaction that resulted
in the stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding certain shares) or
(iii) on or subsequent to such date, the business combination is approved by the
board of directors of the corporation and by the affirmative vote of at least
662/3% of the outstanding voting stock which is not owned by the interested
stockholder. Except as specified therein, an interested stockholder is defined
to mean any person that (a) is the owner of 15% or more of the outstanding
voting stock of the corporation or (b) is an affiliate or associate of the
corporation and was the owner of 15% or more of the outstanding voting stock of
the corporation at any time within three years immediately prior to the relevant
date, or any affiliate or associate of such person referred to in (a) or (b) of
this sentence. Under certain circumstances, Section 203 of the DGCL makes it
more difficult for an interested stockholder to effect various business
combinations with a corporation for a three-year period, although the
stockholders may, by adopting an amendment to the corporation's certificate of
incorporation or by-laws, elect not to be governed by this section, effective
twelve months after adoption. The Restated Certificate and the By-Laws do not
exclude Iron Mountain from the restrictions imposed under Section 203 of the
DGCL. It is anticipated that the provisions of Section 203 of the DGCL may
encourage companies interested in acquiring Iron Mountain to negotiate in
advance with the Iron Mountain Board.
LEGAL MATTERS
The validity of the shares of Common Stock offered by this Prospectus
have been passed upon for the Company by Sullivan & Worcester LLP, Boston,
Massachusetts. Jas. Murray Howe, Secretary of Iron Mountain, is of counsel to
Sullivan & Worcester LLP and beneficially owns 3,855 shares of Common Stock.
EXPERTS
The consolidated financial statements and schedule of Iron Mountain
Incorporated and its subsidiaries for the three years ended December 31, 1996,
included in Iron Mountain's Annual Report on Form 10-K, have been audited by
Arthur Andersen LLP, independent public accountants, as stated in their reports
with respect thereto, and are incorporated by reference herein in reliance upon
the authority of said firm as experts in giving said reports.
The financial statements of Nashville Vault Company, Ltd. for the year
ended December 31, 1995, included in Iron Mountain's Registration Statement on
Form S-4 (file No. 333-24635, effective date May 14, 1997), have been audited by
Geo. S. Olive & Co. LLC, independent public accountants, as stated in their
report with respect thereto, and are incorporated by reference herein in
reliance upon the authority of said firm as experts in giving said report.
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The financial statements of International Record Storage and Retrieval
Services, Inc. for the year ended December 31, 1995, included in Iron Mountain's
Registration Statement on Form S-4 (file No. 333-24635, effective date May 14,
1997), have been audited by Rothstein, Kass & Company, P.C., independent public
accountants, as stated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
The financial statements of Mohawk Business Record Storage, Inc. for
the year ended December 31, 1995, included in Iron Mountain's Registration
Statement on Form S-4 (file No. 333-24635, effective date May 14, 1997), have
been audited by Arthur Andersen LLP, independent public accountants, as stated
in their report with respect thereto, and are incorporated by reference herein
in reliance upon the authority of said firm as experts in giving said report.
The financial statements of Security Archives of Minnesota for the year
ended December 31, 1996, included in Iron Mountain's Current Report on Form 8-K
dated October 30, 1997, have been audited by Arthur Andersen LLP, independent
public accountants, as stated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
The financial statements of Wellington Financial Services, Inc. for the
year ended December 31, 1996, included in Iron Mountain's Current Report on Form
8-K dated October 30, 1997, have been audited by Arthur Andersen LLP,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements of Allegiance Business Archives, Ltd. for the
year ended December 31, 1996, included in Iron Mountain's Current Report on Form
8-K dated November 25, 1997, have been audited by Stout, Causey & Horning, P.A.,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements and schedule of Safesite Records Management
Corporation for the three years ended December 31, 1996, included in Iron
Mountain's Registration Statement on Form S-4 (file no. 333-24635, effective
date May 14, 1997), have been audited by Arthur Andersen LLP, independent public
accountants, as stated in their reports with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said reports.
The financial statements of Concorde Group, Inc. and Neil Trucker Trust
for the year ended December 31, 1996, included in Iron Mountain's Current Report
on Form 8-K dated October 30, 1997, have been audited by Fisher, Schacht &
Oliver LLP, independent public accountants, as stated in their report with
respect thereto, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said report.
The financial statements of Data Securities International, Inc. for the
year ended December 31, 1996, included in Iron Mountain's Current Report on Form
8-K dated October 30, 1997, have been audited by Arthur Andersen LLP,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in giving said report.
The financial statements of Records Retention/FileSafe, LP for the two
years ended December 31, 1996, included in Iron Mountain's Current Report on
Form 8-K dated November 25, 1997, have been audited by Abbott Stringham & Lynch,
independent public accountants, as stated in their report with respect thereto,
and are incorporated by reference herein in reliance upon the authority of said
firm as experts in accounting and auditing.
The consolidated financial statements of HIMSCORP, Inc. and
Subsidiaries for the period February 1, 1995 to December 31, 1995 and for the
year ended December 31, 1996, appearing in Iron Mountain's Current Reports on
Form 8-K dated October 30, 1997 and November 25, 1997, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their reports thereon
included therein, and are incorporated by reference herein in reliance upon the
authority of said firm as experts in giving said report.
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The consolidated financial statements of Arcus Technology Services,
Inc. (Successor Company) for the year ended December 31, 1996 and the five
months ended December 31, 1995 and the consolidated financial statements of
Arcus, Inc. (Predecessor Company) for the seven months ended July 31, 1995 and
the year ended December 31, 1994, appearing in Iron Mountain's Current Reports
on Form 8-K dated October 30, 1997 and November 25, 1997, have been audited by
Ernst & Young LLP, independent auditors, as set forth in their reports thereon
included therein, and incorporated by reference herein in reliance upon the
authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Arcus Group, Inc. for the two
years in the period ended December 31, 1996, appearing in Iron Mountain's
Current Reports on Form 8-K dated October 30, 1997 and November 25, 1997, have
been audited by Ernst & Young LLP, independent auditors, as set forth in their
reports thereon included therein, and incorporated by reference herein in
reliance upon the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Arcus Group, Inc. for the year
ended December 31, 1994, included in Iron Mountain's Current Report on Form 8-K
dated November 25, 1997, have been audited by Arthur Andersen LLP, independent
public accountants, as stated in their report with respect thereto, and are
incorporated by reference herein in reliance upon the authority of said firm as
experts in giving said report.
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No person has been authorized to give any information or to make any
representations other than those contained or incorporated by reference in this
Prospectus in connection with the offer contained in this Prospectus and, if
given or made, such information or representations must not be relied upon as
having been authorized by the Company or any underwriters, agents or dealers.
This Prospectus does not constitute an offer to sell or solicitation of an offer
to buy securities in any jurisdiction to any person to whom it is unlawful to
make such offer or solicitation. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create an implication that
there has been no change in the affairs of the Company and its subsidiaries
since the date hereof or the information contained or incorporated by reference
herein is correct at any time subsequent to the date hereof.
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain Documents by Reference 2
The Company 3
Selected Consolidated Financial and Other Operating Information 4
Risk Factors 6
Description of Capital Stock 10
DGCL and Certain Provisions of the
Restated Certificate and the By-laws 11
Legal Matters 13
Experts 13
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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 Iron Mountain
may and, in certain cases, must be indemnified by Iron Mountain 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 Iron Mountain. 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 Iron Mountain, 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 Iron Mountain's Restated Certificate of Incorporation
provides that Iron Mountain shall indemnify each person who is or was an officer
or Director of Iron Mountain to the fullest extent permitted by Section 145 of
the DGCL.
Article Seventh of Iron Mountain's Restated Certificate of
Incorporation states that no Director of Iron Mountain shall be liable to Iron
Mountain 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 21. Exhibits
Exhibits indicated below are incorporated by reference to documents of
Iron Mountain on file with the Securities and Exchange Commission. Exhibit
numbers in parentheses refer to the exhibit numbers in the applicable filing.
All other exhibits are filed herewith.
<TABLE>
<CAPTION>
Exhibit No. Item Exhibit
----------- ---- -------
<S> <C> <C>
2.1 Agreement and Plan of Merger, dated as of September 26, 1997, (2.2)7
by and among Iron Mountain, Arcus Group, Inc., United
Acquisition Company and Arcus Technology Services, Inc.
(collectively, the "Arcus Parties")
2.1A Amendment No. 1 to Agreement and Plan of Merger, dated as of (2.1A)9
November 25, 1997, by and among Iron Mountain and each of
the Arcus Parties
2.2 Agreement and Plan of Merger, dated as of February 19, 1997, (2)3
by and among Iron Mountain, IM-1 Acquisition Corp. and
Safesite Records Management Corporation
2.3 Amendment No. 1 to Agreement and Plan of Merger, dated as of (2A)5
April 1, 1997, by and among Iron Mountain, IM-1 Acquisition
Corp. and Safesite Records Management Corporation
2.4 Amendment No. 2 to Agreement and Plan of Merger, dated as of (2B)5
May 7, 1997, by and among Iron Mountain, IM-1 Acquisition
Corp. and Safesite Records Management Corporation
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2.5 Agreement and Plan of Merger, dated as of August 25, 1997, by (2.3)7
and among Iron Mountain, DSI Acquisition Corporation and Data
Securities International, Inc.
2.6 Agreement and Plan of Merger, dated as of September 17, 1997, (2.2)8
by and among Iron Mountain, IM-3 Acquisition Corp. and
HIMSCORP, Inc.
3.1 Amended and Restated Certificate of Incorporation of Iron Filed herewith as Exhibit 3.1
Mountain, as amended
3.2 Amended and Restated By-Laws of Iron Mountain, as amended Filed herewith as Exhibit 3.2
5 Opinion of Sullivan & Worcester LLP Filed herewith as Exhibit 5
10.1 Second Amended and Restated Credit Agreement, dated as of (10.1)7
September 26, 1997, among Iron Mountain, the lenders party
thereto and The Chase Manhattan Bank, as Administrative
Agent
10.2 Indenture for 101/8% Senior Subordinated Notes due 2006 by and (10.3)3
among Iron Mountain, certain of its subsidiaries and First
National Association, as trustee, dated October 1, 1996
10.3 Indenture for 8 3/4% Senior Subordinated Notes due 2009 by and (4.1)6
among Iron Mountain, certain of its subsidiaries and The Bank of
New York, as trustee, dated October 24, 1997
10.4 Iron Mountain Incorporated 1995 Stock Incentive Plan, as (10.1)4
amended
10.5 Asset Purchase and Sale Agreement, dated November 22, 1995 (10.17)1
among Iron Mountain Records Management, Inc. ("IMRM"),
Data Management Business Records Storage, Inc. and Outdoor
West, Inc.
10.6 Record Center Storage Services Agreement between IMRM and (10.18)1
Resolution Trust Corporation, dated July 31, 1992, as renewed by
letter agreement effective July 26, 1996 between Iron Mountain
and the Federal Deposit Insurance Corporation
10.7 Lease between IMRM and IM Houston (CR) Limited (10.19)1
Partnership, dated January 1, 1991
10.8 Asset Purchase and Sale Agreement, dated July 11, 1996, among (10.20)2
IMRM, The Fortress Corporation and certain subsidiaries
10.9 Stock Purchase and Sale Agreement, dated as of August 9, 1996, (10.21)2
among IMRM and the shareholders of Data Archive Services of
Miami, Inc. and Data Archives Services, Inc.
10.10 Asset Purchase Agreement, dated as of September 6, 1996, (10.23)2
among IMRM, Mohawk Business Record Storage, Inc., Michael
M. Rabin, Richard K. Rabin, Herman Ladin and Sidney Ladin
10.11 Amended and Restated Registration Rights Agreement between (10.2)4
Iron Mountain and certain Stockholders, dated as of June 12,
1997
II-2
<PAGE>
10.12 Joinder to Registration Rights Agreement, dated as of October 31, (10.12)9
1997, by and between Iron Mountain and Kent P. Dauten
10.13 Stockholders' Agreement, dated September 17, 1997, by and Filed herewith as Exhibit 10.13
between Iron Mountain and Kent P. Dauten
10.14 Stockholders' Agreement, dated as of February 19, 1997 by and (10.20)3
among Iron Mountain and certain stockholders of Safesite Records
Management Corporation
10.15 Asset Purchase and Sale Agreement, dated March 12, 1997, by (10.22)5
and among IMRM, Chicago Data Destruction Corporation, and
John Mengel and John S. Mengel
10.16 Asset Purchase and Sale Agreement, dated as of August 20, (10.2)7
1997, by and between IMRM and Records Retention/FileSafe,
L.P.
10.17 Stockholders' Agreement, dated as of September 26, 1997, by (10.16)9
and among Iron Mountain and certain stockholders of the Arcus
Parties
10.18 Exchange and Registration Rights Agreement, dated as of (10.18)9
October 21, 1997, among Iron Mountain, certain subsidiaries of
Iron Mountain and Bear, Stearns & Co., Inc. on behalf of itself
and the other Initial Purchasers of Iron Mountain 8 3/4% Senior
Subordinated Notes due 2009
11 Statement re: computation of per share earnings (11)7
21 Subsidiaries of Iron Mountain (21)9
23.1 Consent of Ernst & Young LLP (Arcus Group, Inc. and Arcus Filed herewith as Exhibit 23.1
Technology Services, Inc.)
23.2 Consent of Arthur Andersen LLP (Arcus Group, Inc.) Filed herewith as Exhibit 23.2
23.3 Consent of Ernst & Young LLP (HIMSCORP, Inc. and Filed herewith as Exhibit 23.3
Subsidiaries)
23.4 Consent of Stout, Causey & Horning, P.A. (Allegiance Business Filed herewith as Exhibit 23.4
Archives, Ltd.)
23.5 Consent of Abbott, Stringham & Lynch (Records Filed herewith as Exhibit 23.5
Retention/FileSafe, LP)
23.6 Consent of Arthur Andersen LLP (Security Archives of Filed herewith as Exhibit 23.6
Minnesota, Wellington Financial Services, Inc. and Data
Securities International, Inc.)
23.7 Consent of Fisher, Schacht & Oliver, LLP (Concorde Group, Filed herewith as Exhibit 23.7
Inc. and Neil Tucker Trust)
23.8 Consent of Arthur Andersen LLP (Safesite Records Management Filed herewith as Exhibit 23.8
Corporation and Mohawk Business Record Storage, Inc.)
23.9 Consent of Geo S. Olive & Co. LLC (Nashville Vault Filed herewith as Exhibit 23.9
Company, Ltd.)
II-3
<PAGE>
23.10 Consent of Rothstein, Kass & Company, P.C. (International Filed herewith as Exhibit 23.10
Record Storage and Retrieval Service, Inc.)
23.11 Consent of Arthur Andersen LLP (Iron Mountain Incorporated) Filed herewith as Exhibit 23.11
23.12 Consent of Sullivan & Worcester LLP Contained in Exhibit 5 filed herewith
24 Powers of Attorney Contained on Page II-6 of the
Registration Statement
27 Financial Data Schedule (27)7
<FN>
1 Filed as an Exhibit to Iron Mountain's Registration Statement No.
33-99950 filed with the Securities and Exchange Commission on December
1, 1995.
2 Filed as an Exhibit to Iron Mountain's Registration Statement No.
333-10359 filed with the Securities and Exchange Commission on August
16, 1996.
3 Filed as an Exhibit to Iron Mountain's Annual Report on Form 10-K for
the year ended December 31, 1996, filed with the Securities and
Exchange Commission, File No. 0-27584.
4 Filed as an Exhibit to Iron Mountain's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1997, filed with the Securities and
Exchange Commission, File No. 0-27584.
5 Filed as an Exhibit to Iron Mountain's Registration Statement No.
333-24635 filed with the Securities and Exchange Commission on April 4,
1997, as amended on May 7, 1997 and May 13, 1997.
6 Filed as an Exhibit to Iron Mountain's Current Report on Form 8-K dated
October 30, 1997, filed with the Securities and Exchange Commission,
File No. 0-27584.
7 Filed as an Exhibit to Iron Mountain's Quarterly Report on Form 10-Q
for the quarter ended September 30, 1997, filed with the Securities and
Exchange Commission, File No. 0-27584.
8 Filed as an Exhibit to Iron Mountain's Current Report on Form 8-K/A
dated November 10, 1997, filed with the Securities and Exchange
Commission, File No. 0-27584.
9 Filed as an Exhibit to Iron Mountain's Registration Statement No.
333-41045 filed with the Securities and Exchange Commission on November
26, 1997.
</FN>
</TABLE>
Item 22. Undertakings
Iron Mountain 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, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of this 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 this 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;
II-4
<PAGE>
(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 the undertakings set forth in paragraphs (1)(i) and
(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Act of 1934, as amended (the "Exchange Act") that are incorporated by
reference in this Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act, 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;
(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;
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the Registrant's Annual Report pursuant to
Section 13(a) or Section 15(d) of the Exchange Act (and where applicable, each
filing of an employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this 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;
(5) That prior to any public reoffering of the securities registered
hereunder through use of a prospectus which is a part of this Registration
Statement, by any person or party who is deemed to be an underwriter within the
meaning of Rule 145(c), the Registrant undertakes that such reoffering
prospectus will contain the information called for by the applicable
registration form with respect to reofferings by persons who may be deemed
underwriters, in addition to the information called for by the other items of
the applicable form;
(6) That every prospectus: (i) that is filed pursuant to paragraph (4)
immediately preceding, or (ii) that purports to meet the requirements of Section
10(a)(3) of the Securities Act and is used in connection with an offering of
securities subject to Rule 415, will be filed as a part of an amendment to the
Registration Statement and will not be used until such amendment is effective,
and that, for purposes of determining any liability under the Securities Act,
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;
(7) To respond to requests for information that is incorporated by
reference into the prospectus pursuant to Item 4, 10(b), 11 or 13 of this form,
within one business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This includes
information contained in documents filed subsequent to the effective date of
this Registration Statement through the date of responding to the request;
(8) To supply by means of a post-effective amendment, all information
concerning a transaction, and the company being acquired involved therein, that
was not the subject of and included in the Registration Statement when it became
effective.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to Directors, officers and controlling persons of Iron
Mountain, Iron Mountain has been advised that in the opinion of the Securities
and Exchange Commission such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by Iron Mountain 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, Iron Mountain 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 and will be governed by the final adjudication of such issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, Iron Mountain
Incorporated 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 January 13, 1998.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board of Directors
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this registration
statement has been signed below on January 13, 1998 by the following persons in
the capacities and on the dates indicated; and each of the undersigned officers
and Directors of Iron Mountain Incorporated hereby severally constitutes and
appoints C. Richard Reese, David S. Wendell and John F. Kenny, Jr., and each of
them, to sign for him, and in his name in the capacity indicated below, such
Registration Statement for the purpose of registering such securities under the
Securities Act, and any and all amendments thereto, including without limitation
any registration statement or post-effective amendment thereof filed under and
meeting the requirements of Rule 462(b) under the Securities Act, hereby
ratifying and confirming our signatures as they may be signed by our attorneys
to such Registration Statement and any and all amendments thereto.
<TABLE>
<CAPTION>
Signature Title Date
<S> <C> <C>
/s/ C. Richard Reese Chairman of the Board of Directors January 13, 1998
C. Richard Reese and Chief Executive Officer
/s/ David S. Wendell President, Chief Operating Officer January 13, 1998
David S. Wendell and Director
/s/ John F. Kenny, Jr. Executive Vice President and Chief January 13, 1998
John F. Kenny, Jr. Financial Officer
/s/ Eugene B. Doggett Executive Vice President and Director January 13, 1998
Eugene B. Doggett
/s/ Constantin R. Boden Director January 13, 1998
Constantin R. Boden
/s/ Arthur D. Little Director January 13, 1998
Arthur D. Little
II-6
<PAGE>
/s/ Vincent J. Ryan Director January 13, 1998
Vincent J. Ryan
/s/ B. Thomas Golisano Director January 13, 1998
B. Thomas Golisano
/s/ Kent P. Dauten Director January 13, 1998
Kent P. Dauten
/s/ Clarke H. Bailey Director January 13, 1998
Clarke H. Bailey
/s/ Jean A. Bua Vice President and Corporate January 13, 1998
Jean A. Bua Controller
</TABLE>
II-7
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IRON MOUNTAIN INCORPORATED
(as amended through January 12, 1998)
-----------------------------------
Iron Mountain Incorporated, a Delaware corporation (the "Corporation"),
hereby certifies as follows:
A. The name of the Corporation is Iron Mountain Incorporated, and the
name under which the Corporation was originally incorporated was Iron Mountain
Information Services, Inc.
B. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State was November 15, 1990; and the date of
filing of its first Restated Certificate of Incorporation with the Secretary of
State was December 13, 1990.
C. This Restated Certificate of Incorporation restates, integrates and
further amends the provisions of the first Restated Certificate of Incorporation
of the Corporation, as heretofore amended.
D. This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law.
E. The first Restated Certificate of Incorporation of the Corporation,
as heretofore amended, is hereby amended and restated effective at 9:00 a.m. on
February 6, 1996 to read in its entirety as follows:
FIRST: The name of the Corporation is Iron Mountain Incorporated.
SECOND: The address of the Corporation's registered office in the State
of Delaware is The Prentice-Hall Corporation System, Inc., 1013 Centre Road,
City of Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the Delaware General Corporation Law.
<PAGE>
-2-
FOURTH: The total number shares of all classes of capital stock that
Corporation shall have authority to issue is One Hundred Three Million
(103,000,000)1 shares, of which:
(i) One Hundred Million (100,000,000) shall be Common Stock, par
value $.01 per share (the "Common Stock"),2
(ii) One Million (1,000,000) shall be Nonvoting Common Stock, par
value $.01 per share (the "Nonvoting Common Stock" and
together with the Common Stock, the "Common Shares"), and
(iii) Two Million (2,000,000) shall be Preferred Stock, par value
$.01 per share (the "Preferred Stock" ).
A. CERTAIN DEFINITIONS.
For purposes of this Certificate of Incorporation, unless the context
otherwise requires, the following terms (or any variant in the form thereof)
have the following respective meanings. Terms defined in the singular shall have
a comparable meaning when used in the plural, and vice versa, and the reference
to any gender shall be deemed to include all genders.
The term "Applicable Law" shall mean any Law of any Authority,
whether domestic or foreign, including without limitation all federal
and state Laws, to which the Person in question is subject or by which
it or any of its business or operations is subject or any of its
property is bound.
The term "Authority" shall mean any governmental or
quasi-governmental authority, whether administrative, executive,
judicial, legislative or other, or any combination thereof, including
without limitation any federal, state, territorial, county, municipal
or other government or governmental or quasi-governmental agency,
authority, board, body, branch, bureau, central bank or comparable
agency or Entity, commission, court, department, instrumentality or
other political unit or subdivision or other Entity of any of the
foregoing, whether domestic or foreign.
The term "Certificate of Incorporation" means this Restated
Certificate of Incorporation of the Corporation and any other document
which pursuant to the Delaware General Corporation Law constitutes a
part of the Corporation's Certificate of Incorporation, including any
amendment to or restatement hereof and any certificate of designation
in respect of any particular class or series of Preferred Stock from
time to time in effect.
The term "Entity" shall mean any corporation, firm, limited
liability company, unincorporated organization, association,
partnership, trust, business trust, joint stock
- --------
1 Amended June 3, 1997 and further amended January 12, 1998.
2 Amended June 3, 1997 and further amended January 12, 1998.
<PAGE>
-3-
company, joint venture or other organization, entity or business,
whether acting in an individual, fiduciary or other capacity, or any
governmental or quasi-governmental authority, whether domestic or
foreign and whether administrative, executive, judicial, legislative or
other, or any combination thereof.
The term "Law" shall mean any administrative, judicial,
legislative or other action, code, consent decree, constitution,
decree, directive, enactment, finding, guideline, law, injunction,
interpretation, judgment, order, ordinance, policy statement,
proclamation, promulgation, regulation, requirement, rule, rule of law,
rule of public policy, settlement agreement, statute, or writ, or the
common law, or any particular section, part or provision thereof, or
any interpretation, directive, guideline or request (having the force
of law), of any Authority.
The term "Person" shall mean any natural individual or any
Entity.
B. GENERAL.
Any and all shares of any class or series issued for which the full
consideration has been paid or delivered, shall be deemed fully paid stock and
the holders of such shares shall not be liable for any further call or
assessment or any other payment thereon.
No holder of any of the shares of stock of the Corporation, whether now
or hereafter authorized or issued, shall be entitled as of right to purchase or
subscribe for (i) any unissued stock of any class, or (ii) any additional shares
of any class to be issued by reason of any increase of the authorized stock of
the Corporation of any class, or (iii) bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable, or carrying any
right to purchase or otherwise acquire, stock of any class of the Corporation.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Common Stock
and the Preferred Stock herein authorized or any class or series of capital
stock hereafter authorized, together with any additional shares of any class or
series to be issued by reason of any increase of the authorized stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for, or carrying
any right to purchase or otherwise acquire, stock of any class or series of the
Corporation, for such purposes, in such amounts, to such Persons, for such
consideration and, in the case of the Preferred Stock, in one or more series or
classes, all as the Board of Directors in its sole and absolute discretion may
from time to time determine and without any vote, approval, consent or other
action by the stockholders, except as otherwise required by Applicable Law.
C. COMMON SHARES.
Subject to all the rights which may be granted to holders of the
Preferred Stock and except as otherwise required by Applicable Law, the relative
voting, dividend, liquidation and other rights, preferences and limitations or
restrictions of the Common Stock and the Nonvoting Common Stock are as follows:
<PAGE>
-4-
1. The Common Stock and the Nonvoting Common Stock shall have identical
rights and privileges in every respect, except as expressly set forth in the
following paragraphs of this Section C.
2. Voting Rights. Except as otherwise required by Applicable Law or
this Certificate of Incorporation, on all matters to be voted on by stockholders
of the Corporation, each holder of Common Stock shall have one vote in respect
of each share of Common Stock held of record by such holder on the books of the
Corporation. The holders of Nonvoting Common Stock shall not be entitled to vote
on any matters submitted to the stockholders of the Corporation except as
otherwise required by Applicable Law, in which case (and irrespective of any
class vote relating to increases or decreases in the authorized shares of
Nonvoting Common Stock such holders would otherwise be entitled to under Section
242(b) of the Delaware General Corporation Law) holders of Nonvoting Common
Stock shall vote (at the rate of one vote for each share of Nonvoting Common
Stock held of record by such holder on the books of the Corporation) together
with holders of Common Stock and, if applicable, Preferred Stock, as a single
class on such matter unless otherwise required by Applicable Law (other than any
class vote required by Section 242(b) of the Delaware General Corporation Law).
Except as otherwise required by Applicable Law or provided herein or determined
by the Board of Directors pursuant to Section D below, holders of Common Stock
shall vote together with holders of Preferred Stock having voting rights, as a
single class on all matters submitted to the stockholders for a vote, including
any amendment to increase or decrease the number of authorized shares of Common
Stock (irrespective of Section 242(b) of the Delaware General Corporation Law),
subject to any special or preferential voting rights of any series of Preferred
Stock from time to time outstanding.
3. Dividends. At any time shares of Common Stock are outstanding, as
and when dividends or other distributions payable in either cash, capital stock
of the Corporation (other than Common Stock or Nonvoting Common Stock) or other
property of the Corporation may be declared by the Board of Directors, the
amount of any such dividend payable on each share of Common Stock shall in all
cases be equal to the amount of such dividend payable on each share of Nonvoting
Common Stock, and the amount of any such dividend payable on each share of
Nonvoting Common Stock shall in all cases be equal to the amount of the dividend
payable on each share of Common Stock. Dividends and distributions payable in
shares of Common Stock may not be made on or to shares of any class of the
Corporation's capital stock other than the Common Stock, and dividends payable
in shares of Nonvoting Common Stock may not be made on or to shares of any class
of the Corporation's capital stock other than the Nonvoting Common Stock. If a
dividend or distribution payable in shares of Common Stock shall be made on the
shares of Common Stock, a dividend or distribution payable in shares of
Nonvoting Common Stock shall be made simultaneously on the shares of Nonvoting
Common Stock, and the number of shares of Nonvoting Common Stock payable on each
share of Nonvoting Common Stock pursuant to such dividend or distribution shall
be equal to the number of shares of Common Stock payable on each share of Common
Stock pursuant to such dividend or distribution. If a dividend or distribution
payable in shares of Nonvoting Common Stock shall be made on the shares of
Nonvoting Common Stock, a dividend or distribution payable in shares of Common
Stock shall be made simultaneously on the shares of Common Stock, and the number
of shares of Common Stock payable on each share of Common Stock pursuant to such
dividend or distribution shall be equal to the number of shares of Nonvoting
<PAGE>
-5-
Common Stock payable on each share of Nonvoting Common Stock pursuant to such
dividend or distribution.
4. Consideration on Merger, Consolidation, etc.; Distribution of Assets
Upon Liquidation. In any merger, consolidation or business combination, the
consideration to be received per share by the holders of shares of Common Stock
and shares of Nonvoting Common Stock shall be distributed ratably to each share
of Common Stock and Nonvoting Common Stock in accordance with the number of
shares thereof and without regard to class, except that in any such transaction
in which shares of capital stock and/or other securities (including debt
securities) (including without limitation those of a surviving Entity, or the
direct or indirect parent Entity thereof, whether or not such surviving Entity
is the Corporation) are to be distributed, such shares (or other securities) may
differ only as to voting rights to the extent that the voting rights of the
Common Stock and the Nonvoting Common Stock differ immediately prior to such
merger, consolidation or business combination.
In the event the Corporation shall be liquidated, dissolved or wound
up, whether voluntarily or involuntarily, after there shall have been paid or
set aside for the holders of all shares of the Preferred Stock then outstanding
the full preferential amounts to which they may be entitled, if any, under the
resolutions authorizing the issuance of such Preferred Stock, the net assets of
the Corporation remaining thereafter shall be distributed ratably to each share
of Common Stock and Nonvoting Common Stock in accordance with the number of
shares thereof and without regard to class. For the purposes of this paragraph,
neither the merger, consolidation or business combination of the Corporation
with or into any other Entity in which the stockholders of the Corporation
receive capital stock and/or other securities (including debt securities) of the
surviving Entity (or of the direct or indirect parent Entity thereof), nor the
sale, lease or transfer by the Corporation of all or any part of its business
and assets, nor the reduction of the capital stock of the Corporation, shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Corporation.
5. Subdivision or Combination of Common Shares. The shares of Common
Stock or Nonvoting Common Stock, as the case may be, shall not be split up or
subdivided into a greater number of shares or combined into a smaller number of
shares, whether by stock distribution, reclassification, recapitalization or
otherwise, unless at the same time the shares of the other class of Common
Shares are split up, subdivided or combined so that the number of shares thereof
outstanding shall be proportionately adjusted.
6. Conversion of Nonvoting Common Stock into Common Stock. In
connection with any public offering or public sale of Common Stock (including a
registered offering or a sale pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended, or any similar rule then in force), each
holder of Nonvoting Common Stock shall be entitled to convert any or all of such
holder's shares of Nonvoting Common Stock being actually distributed to the
public or sold to an underwriter, broker-dealer or market maker for actual sale
to the public into an equal number of shares of Common Stock (subject to
equitable adjustment to reflect stock splits, stock dividends, stock
combinations, recapitalizations and like occurrences).
Each share of Nonvoting Common Stock shall be convertible into one
share of Common Stock, at any time and from time to time, (i) if the holder
thereof is not a "bank holding company"
<PAGE>
-6-
or an affiliate of a "bank holding company" under the Bank Holding Company Act
of 1956, as amended (the "BHC Act"), then at the option of the holder thereof,
or (ii) if the holder thereof is a "bank holding company" or an affiliate of a
"bank holding company" under the BHC Act, then upon delivery to the Corporation
of a certificate signed by or on behalf of such holder or holders to the effect
that such holder and its affiliates would hold less than 5% of the outstanding
Common Stock (or such greater amount as shall be permitted by Applicable Law,
including, without limitation, the BHC Act) after giving effect to such
conversion, assuming the conversion by such holder and its affiliates of all
securities convertible into Common Stock owned by them and the exercise by the
holder and its affiliates of all warrants, options and rights to acquire Common
Stock and without giving effect to the exercise of such convertible securities,
options, warrants or rights by any other party, in form and substance reasonably
acceptable to the Corporation.
Such conversion right may be exercised as to any portion of Nonvoting
Common Stock held by a holder by delivering to the Corporation during regular
business hours, at the office of the Corporation or any transfer agent of the
Corporation for the Common Shares as may be designated by the Corporation, the
certificate or certificates for the shares to be converted, duly endorsed or
assigned in blank or to the Corporation (if required by it), accompanied by
written notice stating that such holder elects to convert such shares into
Common Stock, specifying the number of shares of Common Stock to be issued and
stating the name or names (with address) in which the certificate or
certificates for such shares of Common Stock are to be issued. Conversion shall
be deemed to have been effected on the date when the aforesaid delivery is made.
As promptly as is practicable thereafter, the Corporation shall issue and
deliver to such holder, or upon the written order of such holder to the place
designated by such holder, a certificate or certificates representing that
number of shares of Common Stock to which such holder is entitled; provided,
however, that, upon reasonable request by the Corporation, as a condition to
such issuance and delivery of shares of Common Stock to any person other than
such holder, such holder shall have provided to the Corporation evidence
reasonably satisfactory to the Corporation that such transfer shall have been
consummated in accordance with Applicable Law. The person in whose name the
certificate or certificates representing Common Stock are to be issued shall be
deemed to have become a Common Stock holder of record on the applicable
conversion date unless the transfer books of the Corporation are closed on that
date, in which event such holder shall be deemed to have become a Common Stock
holder of record on the next succeeding date on which the transfer books are
open. Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Nonvoting Common Stock surrendered for
conversion, the Corporation shall issue and deliver to such holder, at the
expense of the Corporation, a new certificate covering the number of shares of
the Nonvoting Common Stock representing the unconverted portion of the
certificate so surrendered.
D. PREFERRED STOCK.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more classes or series and,
in connection with the creation of any such class or series, to fix by the
resolution or resolutions providing for the issue of shares thereof the
designation, voting powers, preferences, and relative, participating, optional,
or other special rights of such class or series, and the qualifications,
limitations, or restrictions thereof. Such authority of the Board of Directors
with respect to each such class or series shall include, but not be limited to,
the determination of the following:
<PAGE>
-7-
(a) The distinctive designation of, and the number of shares
comprising, such class or series, which number may be increased (except
where otherwise provided by the Board of Directors in creating such
class or series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the Board
of Directors without stockholder approval (including the holders of
such class or series of Preferred Stock);
(b) The dividend rate or amount for such class or series, the
conditions and dates upon which such dividends shall be payable, the
form in which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes or any other series of the same or any other class or classes
of stock, and whether or not such dividends shall be cumulative, and if
so, from which date or dates for such class or series;
(c) Whether or not the shares of such class or series shall be
subject to redemption by the Corporation or the holders thereof and the
times, prices, and other terms and conditions of such redemption;
(d) Whether or not the shares of such series shall be subject
to the operation of a sinking fund or purchase fund to be applied to
the redemption or purchase of such shares and if such a fund be
established, the amount thereof and the terms and provisions relative
to the application thereof;
(e) Whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class or
classes, or of any other series of any class or classes, of stock of
the Corporation or any other Entity and if provision be made for
conversion or exchange, the times, prices, rates, adjustments, and
other terms and conditions of such conversion or exchange;
(f) Whether or not the shares of such class or series shall
have voting rights, in addition to the voting rights provided by Law,
and if they are to have such additional voting rights, the extent
thereof;
(g) The rights of the shares of such class or series in the
event of any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation or upon any distribution of its assets,
and the relative rights of priority, if any, of payment of such shares;
and
(h) Any other powers, preferences, and relative,
participating, optional, or other special rights of the shares of such
class or series, and the qualifications, limitations, or restrictions
thereof, to the full extent now or hereafter permitted by Applicable
Law and not inconsistent with the rights or provisions of any other
class or series of Common Shares or Preferred Stock of the Corporation.
<PAGE>
-8-
FIFTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided that:
1. Powers of the Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware,
this Certificate of Incorporation and the By-Laws of the Corporation. Except as
otherwise provided by the Delaware General Corporation Law, any committee of the
Board of Directors shall have and may exercise, to the extent provided in the
By-Laws of the Corporation or by the resolutions of the Board of Directors, all
of the powers and authority of the Board of Directors of the Corporation in the
management of the business and affairs of the Corporation.
2. Number and Terms of Directors. Subject to the rights of the holders
of shares of any class or series of Preferred Stock to elect additional
Directors under specified circumstances, the number of Directors of the
Corporation shall be fixed by the Board of Directors of the Corporation and may
be increased or decreased from time to time in such a manner as may be
prescribed by the By-Laws.
The Directors shall be divided into three classes, as nearly
equal in number as possible. One class of Directors has been initially elected
for a term expiring at the annual meeting of stockholders to be held in 1996,
another class has been initially elected for a term expiring at the annual
meeting of stockholders to be held in 1997, and another class has been initially
elected for a term expiring at the annual meeting of stockholders to be held in
1998, with members of each class to hold office until their successors are
elected and qualified. At each succeeding annual meeting of the stockholders of
the Corporation, the successors of the class of Directors whose term expires at
that meeting shall be elected by plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election.
3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the authorized number of directors
or any vacancy in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or otherwise shall be filled
only by a majority vote of the directors then in office, though less than a
quorum, or by a sole remaining director, or, if no directors remain, then by the
stockholders of the Corporation, and directors so chosen shall hold office for a
term expiring at the next election of the class for which such Director has been
chosen. No decrease in the authorized number of directors shall shorten the term
of any incumbent director.
4. Election and Nominations of Directors. Unless and except to the
extent that the ByLaws of the Corporation shall so require, the election of
directors of the Corporation need not be by written ballot. Directors need not
be stockholders. Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before an
annual meeting shall be given in the manner provided in the By-Laws of the
Corporation.
<PAGE>
-9-
5. Removal of Directors. Subject to the rights of the holders of shares
of any class or series of Preferred Stock, any Director may be removed from
office by the stockholders in the manner provided in this Section 5 of Article
FIFTH. At any annual meeting of the stockholders of the Corporation or at any
special meeting of the stockholders of the Corporation, the notice of which
shall state that the removal of a Director or Directors is among the purposes of
the meeting, the affirmative vote of the holders of at least 80 percent of the
combined voting power of the stock of the Corporation entitled to vote in the
election of Directors generally, voting together as a single class, may remove
such Director or Directors only for cause.
6. No Action By Written Consent of Stockholders. Subject to the rights
of the holders of shares of any class or series of Preferred Stock in respect of
actions to be taken by the holders of such shares, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by the stockholders.
7. Stockholders' Meetings. Subject to the rights of the holders of
shares of any class or series of Preferred Stock in respect of meetings of the
holders of such shares, meetings of stockholders of the Corporation may be
called only by the Chairman of the Board of Directors, if any, or the Board of
Directors pursuant to a resolution adopted by majority vote of the Board of
Directors.
8. Rights of Preferred Stock. Notwithstanding the foregoing, whenever
the holders of any class or series of Preferred Stock shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Certificate of Incorporation specifically applicable thereto.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of at least 80 percent of the voting power
of the stock of the Corporation entitled to vote in the election of Directors
generally, voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with this Article FIFTH.
SIXTH:
1. Indemnification Other than Actions by or on Behalf of the
Corporation. The Corporation shall indemnify and hold harmless to the fullest
extent permitted by Applicable Law, as it presently exists or may hereafter be
amended, any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he or she is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, partner, trustee,
officer, employee or agent of another Entity against all liability, losses,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the
<PAGE>
-10-
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
2. Indemnification in Actions by or on Behalf of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, trustee, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, partner, trustee, officer, employee or agent of another Entity against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware
or such other court shall deem proper.
3. Additional Indemnification as to Expenses. Without intending to
limit the generality of the indemnification provided in Sections 1 and 2 of
Article SIXTH and in addition thereto, to the extent that any person referred to
in Sections 1 and 2 of this Article SIXTH has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to therein, or
in defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
4. Authorization. Any indemnification under Sections 1 and 2 of this
Article SIXTH (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, trustee, partner, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in such Sections 1 and 2 of this Article SIXTH. Such determination shall
be made (i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, (ii) if there are no
such directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (iii) by the stockholders.
5. Expense Advance. Expenses (including attorneys' fees) incurred by an
officer or director of the Corporation in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article SIXTH. Such expenses (including attorneys' fees)
<PAGE>
-11-
incurred by other persons referred to in Sections 1 and 2 of this Article SIXTH
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
6. Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Article SIXTH
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
7. Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, trustee,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, partner, officer, employee or
agent of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article SIXTH.
8. "The Corporation". For purposes of this Article SIXTH, references to
"the Corporation" include, in addition to the resulting Corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, trustees,
employees or agents so that any person who is or was a director, officer,
trustee, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, trustee, partner,
officer, employee or agent of another Entity shall stand in the same position
under the provisions of this Article SIXTH with respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
9. "Other Enterprises". For purposes of this Article SIXTH, references
to "other enterprises" or "entities" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, trustee, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, trustee, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article SIXTH.
10. Continuation of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article SIXTH
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, partner, trustee, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
<PAGE>
-12-
11. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another Entity shall be reduced
by any amount such person collects as indemnification from such other
corporation, partnership, limited liability company, joint venture, trust or
other enterprise or from insurance.
12. No Amendment. No amendment or repeal of the provisions of this
Article SIXTH shall adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
amendment or repeal.
SEVENTH: A director of the Corporation shall not be liable to the
Corporation 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 General Corporation Law of Delaware as in effect when such
breach occurred. Neither the amendment or repeal of this Article SEVENTH, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article SEVENTH, shall eliminate, reduce or adversely affect the
effect of this Article SEVENTH in respect of any act or omission occurring, or
any cause of action, suit or claim that, but for this Article SEVENTH, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
EIGHTH: In furtherance and not in limitation of the powers conferred by
the Laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered to amend, alter, change and repeal the By-Laws. The
By-Laws of the Corporation may be amended, altered, changed or repealed, and a
provision or provisions inconsistent with the provisions of the By-Laws as they
exist from time to time may be adopted, only by the majority of the entire Board
of Directors or with the approval of the holders of not less than sixty-six and
two-thirds percent (662/3%) of the voting power of all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (except that the affirmative vote of at least 80% of the voting power
of the capital stock of the Corporation entitled to vote in the election of
Directors generally, voting together as a single class, shall be required to
amend, repeal or adopt any provision inconsistent with the provisions of the
By-Laws establishing classes of directors, limiting the rights of the
stockholders to remove or nominate directors or bring business before annual
meetings of stockholders, filling vacancies of the Board of Directors and
providing for limitations on calling special meetings of the stockholders).
NINTH: Except for the provisions in Articles FOURTH, SIXTH, SEVENTH,
AND EIGHTH, and this Article NINTH, none of which provisions or authorization
shall be amended, altered, changed or repealed except with the approval of the
holders of not less than sixty-six and two-thirds percent (662/3%) of the voting
power of all outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
and any other provisions contained in this Certificate of Incorporation that by
their terms require a higher vote, the Corporation reserves the right at any
time and from time to time to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation (including provisions as may
hereafter be added or inserted in this Certificate of Incorporation as
authorized by the Laws of the State of Delaware) in the manner now or hereafter
prescribed by Delaware General
<PAGE>
-13-
Corporation Law. All rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other person whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article
NINTH.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its Chairman of the Board and Chief Executive Officer and attested
by its Assistant Secretary this 2nd day of February, 1996.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Garry B. Watzke
Name: Garry B. Watzke
Title: Assistant Secretary
EXHIBIT 3.2
================================================================================
AMENDED AND RESTATED
BY - LAWS
of
Iron Mountain Incorporated
(a Delaware corporation)
================================================================================
as amended through January 6, 1998
<PAGE>
<TABLE>
<CAPTION>
TABLE OF CONTENTS
<S> <C>
ARTICLE I OFFICES..............................................................................................1
SECTION 1. Registered Office. ........................................................1
SECTION 2. Other Offices. ............................................................1
ARTICLE II MEETING OF STOCKHOLDERS.............................................................................1
SECTION 1. Place of Meeting............................................................1
SECTION 2. Annual Meetings. ..........................................................1
SECTION 3. Special Meetings............................................................1
SECTION 4. Introduction of Business At a Meeting of Stockholders.......................1
SECTION 5. Notice......................................................................2
SECTION 6. Quorum and Adjournments.....................................................3
SECTION 7. Votes; Proxies. ...........................................................3
SECTION 8. Organization. .............................................................4
ARTICLE III DIRECTORS..........................................................................................4
SECTION 1. Number......................................................................4
SECTION 2. Nomination of Directors.....................................................5
SECTION 3. Removal.....................................................................6
SECTION 4. Vacancies...................................................................6
SECTION 5. Meetings....................................................................6
SECTION 6. Votes.......................................................................7
SECTION 7. Quorum and Adjournment......................................................7
SECTION 8. Compensation................................................................7
SECTION 9. Action By Consent of Directors..............................................7
ARTICLE IV COMMITTEES OF DIRECTORS.............................................................................7
SECTION 1. Executive Committee.........................................................7
SECTION 2. Audit Committee.............................................................8
SECTION 3. Other Committees............................................................9
SECTION 4. Term of Office..............................................................9
ARTICLE V OFFICERS.............................................................................................9
SECTION 1. Officers....................................................................9
SECTION 2. Vacancies..................................................................10
SECTION 3. Chairman of the Board......................................................10
SECTION 4. President..................................................................10
SECTION 5. Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents............................................................10
SECTION 6. Secretary..................................................................10
SECTION 7. Assistant Secretaries......................................................10
SECTION 8. Treasurer..................................................................11
SECTION 9. Assistant Treasurers.......................................................11
SECTION 10. Controller.................................................................11
SECTION 11. Assistant Controllers......................................................11
SECTION 12. Subordinate Officers.......................................................11
SECTION 13. Compensation...............................................................11
<PAGE>
SECTION 14. Removal....................................................................11
SECTION 15. Bonds......................................................................11
ARTICLE VI CERTIFICATES OF STOCK..............................................................................12
SECTION 1. Form and Execution of Certificates.........................................12
SECTION 2. Transfer of Shares.........................................................12
SECTION 3. Closing of Transfer Books..................................................13
SECTION 4. Fixing Date for Determination of Stockholders of Record....................13
SECTION 5. Lost or Destroyed Certificates.............................................13
SECTION 6. Uncertificated Shares......................................................14
SECTION 7. Transfer Agents and Registrars; Further Regulations. .....................14
ARTICLE VII EXECUTION OF DOCUMENTS............................................................................15
SECTION 1. Execution of Checks, Notes, etc............................................15
SECTION 2. Execution of Contracts, Assignments, etc...................................15
SECTION 3. Execution of Proxies.......................................................15
ARTICLE VIII INSPECTION OF BOOKS..............................................................................15
ARTICLE IX FISCAL YEAR......................................................................................16
ARTICLE X SEAL.............................................................................................16
ARTICLE XI AMENDMENTS.......................................................................................16
ARTICLE XII RESTRICTIONS ON TRANSFER OF CERTAIN SHARES
OF CAPITAL STOCK OF THE CORPORATION.......................................................16
SECTION 1. Restrictions on Transfer....................................................16
SECTION 2. Legend on Stock Certificates................................................17
SECTION 3. Termination of Restrictions on Transfers....................................17
ARTICLE XIII RESTRICTIONS ON TRANSFER OF CERTAIN SHARES
OF CAPITAL STOCK OF THE CORPORATION.......................................................17
SECTION 1. Restrictions on Transfer....................................................17
SECTION 2. Legend on Stock Certificates................................................18
</TABLE>
<PAGE>
Iron Mountain Incorporated
(a Delaware corporation)
BY-LAWS
ARTICLE I OFFICE
SECTION 1. Registered Office. The registered office of the Corporation
shall be located in Dover, County of Kent, State of Delaware, and the name of
the resident agent in charge thereof shall be The Prentice-Hall Corporation
System, Inc.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II MEETING OF STOCKHOLDERS
SECTION 1. Place of Meeting. Meetings of the stockholders shall be held
either within or without the State of Delaware at such place as the Board of
Directors may fix from time to time.
SECTION 2. Annual Meetings. The annual meeting of stockholders shall be
held for the election of directors on such date and at such time as the Board of
Directors may fix from time to time. Any other proper business may be transacted
at the annual meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called only by the Chairman of the Board, if any,
or the Board of Directors pursuant to a resolution adopted by a majority vote of
the Board of Directors.
SECTION 4. Introduction of Business At a Meeting of Stockholders. At an
annual or special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
properly brought before such annual or special meeting of stockholders. To be
properly brought before an annual or special meeting of stockholders, business
must be (i) in the case of a special meeting, specified in the notice of the
special meeting (or any supplement thereto) given by or at the direction of the
Board of Directors or otherwise properly brought before the meeting by the Board
of Directors, or (ii) in the case of an annual meeting, properly brought before
the meeting by or at the direction of the Board of Directors, or otherwise
properly brought before the annual meeting by a stockholder. For business to be
properly brought before an annual meeting of stockholders by a stockholder, the
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 2
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 45 days1 prior to the date of the annual meeting; provided, however,
that if less than 55 days' written notice or prior public disclosure of the date
of the annual meeting is given or made to stockholders or to the stockholder
proposing a matter, notice by the stockholder to be timely must be so delivered
or received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of the meeting was
mailed to such stockholder or the stockholders generally or (ii) the day on
which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting of
stockholders (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business and any other stockholders
known by such stockholder to be supporting such proposal, (iii) the class and
number of shares of the Corporation which are beneficially owned by such
stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder's notice, and (iv) any material interest of the
stockholder in such proposal.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Section 4. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the procedures
prescribed by these By-Laws, and if he should so determine, he shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted.
The foregoing requirements shall be in addition to any other
requirements imposed by applicable law or regulation.
SECTION 5. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting, be served upon or mailed to each
stockholder entitled to vote thereat, at the address of such stockholder as it
appears upon the stock records of the Corporation or, if such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
be mailed to some other address, then to the address designated in such request.
- --------
1 Amended 5/1/96.
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 3
Notice of the hour, date, place and purpose of any meeting of
stockholders may be dispensed with if every stockholder entitled to vote thereat
shall attend either in person or by proxy and shall not, at the beginning of the
meeting, object to the holding of such meeting because the meeting has not been
lawfully called or convened, or if every absent stockholder entitled to such
notice shall in writing, filed with the records of the meeting, either before or
after the holding thereof, waive such notice.
SECTION 6. Quorum and Adjournments. Except as otherwise provided by law
or by the Certificate of Incorporation, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the voting power of
the shares of the capital stock of the Corporation issued, outstanding and
entitled to vote thereat, shall be requisite and shall constitute a quorum. If
two or more classes of stock are entitled to vote as separate classes upon any
question, then, in the case of each such class, a quorum for the consideration
of such question shall, except as otherwise provided by law or by the
Certificate of Incorporation, consist of a majority of the voting power of all
stock of that class issued, outstanding and entitled to vote. If a majority of
the voting power of shares of capital stock of the Corporation issued and
outstanding and entitled to vote thereat or, where a larger quorum is required,
such quorum, shall not be represented at any meeting of the stockholders
regularly called, the holders of a majority of the voting power of the shares
present or represented by proxy and entitled to vote thereat shall have power to
adjourn the meeting to another time, or to another time and place, without
notice other than announcement of adjournment at the meeting, and there may be
successive adjournments for like cause and in like manner until the requisite
amount of shares entitled to vote at such meeting shall be represented;
provided, however, that if the adjournment is for more than thirty (30) days,
notice of the hour, date and place of the adjourned meeting shall be given to
each stockholder entitled to vote thereat. Subject to the requirements of law
and the Certificate of Incorporation, on any issue on which two or more classes
of stock are entitled to vote separately, no adjournment shall be taken with
respect to any class for which a quorum is present unless the Chairman of the
meeting otherwise directs. At any meeting held to consider matters which were
subject to adjournment for want of a quorum at which the requisite amount of
shares entitled to vote thereat shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
SECTION 7. Votes; Proxies. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of record at the closing of the transfer books, if closed, or on the date set by
the Board of Directors for the determination of stockholders entitled to vote at
such meeting, shall have one vote for each share of stock entitled to vote which
is registered in such stockholder's name on the books of the Corporation.
At each such meeting every stockholder entitled to vote shall be
entitled to do so in person, or by proxy appointed by an instrument in writing
or as otherwise permitted by law subscribed by such stockholder and bearing a
date not more than three (3) years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in force. A
duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is
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By-Laws of Iron Mountain Incorporated
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coupled is an interest in the stock itself or any interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing with the Secretary of
the Corporation an instrument in writing or as otherwise permitted by law
revoking the proxy or another duly executed proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by inspectors of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that inspectors of election be appointed, the Chairman shall appoint
two or more inspectors of election, who shall first take and subscribe an oath
or affirmation faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of their ability. The
inspectors so appointed shall take charge of the polls and, after the balloting,
shall make a certificate of the result of the vote taken. No director or
candidate for the office of director shall be appointed as such inspector.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 8. Organization. The Chairman of the Board, if there be one, or
in his or her absence the Vice Chairman, or in the absence of a Vice Chairman,
the President, or in the absence of the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof. The
Secretary of the Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his or her absence, the presiding officer may appoint a
secretary.
ARTICLE III DIRECTORS
SECTION 1. Number. The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors, none of whom needs to be a
stockholder. The number of directors for each year shall be fixed by the Board
of Directors (and not by the stockholders) from time to time, but shall not be
less than three nor more than fifteen persons. If the number is not so fixed,
the number shall remain as it stood immediately prior to such meeting.
The directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be divided, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, as determined by the Board of Directors. One class shall hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 1996, another class to hold office initially for a term expiring at the
annual meeting of stockholders in 1997, and another class to hold office
initially for a term expiring at the annual meeting of
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stockholders to be held in 1998, with each member of each class to hold office
until his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal. At each succeeding annual meeting of the
stockholders of the Corporation, the successors of the class of directors whose
term expires at that meeting shall be elected by plurality vote to hold office
for a term expiring at the annual meeting for stockholders held in the third
year following the year of their election.
At any time during any year, except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the number of directors may be
increased or reduced, in each case by vote of a majority of the directors in
office at the time of such increase or decrease, regardless of whether such
majority constitutes a quorum, provided that no such decrease shall affect the
term of any director then in office.
SECTION 2. Nomination of Directors. Only persons nominated in
accordance with the procedures set forth in this Section 2 shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors may be made at a meeting of stockholders (i) by or at the direction of
the Board of Directors, or (ii) by any stockholder of the Corporation entitled
to vote for the election of directors at such meeting who complies with the
notice procedures set forth in this Section 2. Such nominations, other than
those made by or at the direction of the Board, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 45 days2 prior to
the date of a meeting; provided, however, that if fewer than 55 days' written
notice or prior public disclosure of the date of the meeting is given or made to
stockholders or to the stockholder proposing a director or directors for
election, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of such meeting was
mailed to such stockholder or stockholders generally or (ii) the day on which
such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), and
(ii) as to the stockholder giving the notice, (a) the name and address, as they
appear on the Corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such nominees and (b)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder on the date of such stockholder's
- --------
2 Amended 5/1/96.
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A Delaware Corporation
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notice and by any other stockholders known by such stockholder to be supporting
such nominees on the date of such stockholder's notice.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 2. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the By-Laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
The foregoing requirements shall be in addition to any other
requirements imposed by applicable law or regulation.
SECTION 3. Removal. Subject to the rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional directors under specified circumstances,
any director may be removed from office by the stockholders in the manner
provided in this Section 3 of Article III. At any annual meeting of the
stockholders of the Corporation or at any special meeting of the stockholders of
the Corporation, the notice of which shall state that the removal of a director
or directors is among the purposes of the meeting, the affirmative vote of the
holders of at least 80 percent of the combined voting power of the outstanding
shares of capital stock of the Corporation entitled to vote in the election of
directors generally, voting together as a single class, may remove such director
or directors only for cause.
SECTION 4. Vacancies. If any vacancy shall occur among the directors,
or if the number of directors shall at any time be increased, such vacancy shall
be filled only by the directors then in office, although less than a quorum, by
a majority vote of the directors then in office or by the sole remaining
director, or, if no directors then remain, by the stockholders of the
Corporation.
SECTION 5. Meetings. Meetings of the Board of Directors shall be held
at such place, within or without the State of Delaware, as may from time to time
be fixed by resolution of the Board of Directors or by the Chairman of the
Board, if there be one, or by the President, and as may be specified in the
notice or waiver of notice of any meeting. Meetings may be held at any time upon
the call of the Chairman of the Board, if there be one, or the President or any
two (2) of the directors in office by oral, telegraphic, telex, telecopy or
other form of electronic transmission, or written notice, duly served or sent or
mailed to each director not less than twenty-four (24) hours before such
meeting, except that, if mailed, not less than seventy-two (72) hours before
such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof
before or after the meeting. A regular meeting of the Board may be held without
notice immediately following the annual meeting of stockholders at the place
where such meeting is held. Regular meetings of the Board may also be held
without notice at such time and place
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as shall from time to time be determined by resolution of the Board. Except as
otherwise provided by law, the Certificate of Incorporation or otherwise,
neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors or any committee thereof need be
specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting
pursuant to the foregoing provisions shall constitute presence in person at the
meeting.
SECTION 6. Votes. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 7. Quorum and Adjournment. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, a majority of the directors
shall constitute a quorum for the transaction of business. If at any meeting of
the Board there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time without notice other than announcement
of the adjournment at the meeting, and at such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally noticed.
SECTION 8. Compensation. Directors may receive compensation for their
services, as such, and for service on any committee of the Board of Directors,
as fixed by resolution of the Board of Directors and for expenses of attendance
at each regular or special meeting of the Board or any Committee thereof.
Nothing in this Section shall be construed to preclude a director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 9. Action By Consent of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Such consent shall be treated as a vote adopted at a meeting for all purposes.
Such consents may be executed in one or more counterparts and not every Director
or committee member need sign the same counterpart.
ARTICLE IV COMMITTEES OF DIRECTORS
SECTION 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of two (2) or more members, to serve during the pleasure of the Board,
to consist of such directors as the Board may from time to time designate. The
Board of Directors shall designate the Chairman of the Executive Committee.
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Page 8
a. Procedure. The Executive Committee shall, by a vote of a
majority of its members, fix its own times and places of
meeting, determine the number of its members constituting a
quorum for the transaction of business, and prescribe its own
rules of procedure, no change in which shall be made save by a
majority vote of its members.
b. Responsibilities. During the intervals between the meetings of
the Board of Directors, except as otherwise provided by the
Board of Directors in establishing such Committee or
otherwise, the Executive Committee shall possess and may
exercise all the powers of the Board in the management and
direction of the business and affairs of the Corporation;
provided, however, that the Executive Committee shall not,
except to the extent otherwise provided in the Certificate of
Incorporation or a resolution providing for the issuance of
shares of stock adopted by the Board of Directors as provided
in Section 151(a) of the Delaware General Business Corporation
Law, have the power:
(1) to amend or authorize the amendment of the
Certificate of Incorporation or these By-Laws;
(2) to authorize the issuance of stock;
(3) to authorize the payment of any dividend;
(4) to adopt an agreement of merger or consolidation
of the Corporation or to recommend to the
stockholders the sale, lease or exchange of all or
substantially all the property and business of the
Corporation;
(5) to recommend to the stockholders a dissolution,
or a revocation of a dissolution, of the Corporation;
or
(6) to adopt a certificate of ownership and merger
pursuant to Section 253 of the Delaware Business
Corporation Law.
c. Reports. The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee
shall be reported promptly to the Board of Directors. Such
action shall be subject to review, amendment and repeal by the
Board, provided that no rights of third parties shall be
adversely affected by such review, amendment or repeal.
SECTION 2. Audit Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Audit Committee of two (2)
or more members who shall not be officers (the Chairman of the Board and the
Vice Chairman of the Board, if any, not being deemed officers for this purpose)
or employees of the Corporation to serve during the
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A Delaware Corporation
Page 9
pleasure of the Board. The Board of Directors shall designate the Chairman of
the Audit Committee.
a. Procedure. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for
the transaction of business, and shall prescribe its own rules
of procedure, no change in which shall be made save by a
majority vote of its members.
b. Responsibilities. The Audit Committee shall review the annual
financial statements of the Corporation prior to their
submission to the Board of Directors, shall consult with the
Corporation's independent auditors, and may examine and
consider such other matters in relation to the internal and
external audit of the Corporation's accounts and in relation
to the financial affairs of the Corporation and its accounts,
including the selection and retention of independent auditors,
as the Audit Committee may, in its discretion, determine to be
desirable.
c. Reports. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from
time to time, be reported to the Board of Directors as it
shall direct. Such action shall be subject to review,
amendment and repeal by the Board, provided that no rights of
third parties shall be adversely affected by such review,
amendment or repeal.
SECTION 3. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from its own number. Every such committee must include at least one
member of the Board of Directors. The Board may from time to time designate or
alter, within the limits permitted by law, the Certificate of Incorporation and
this Article, if applicable, the duties, powers and number of members of such
other committees or change their membership, and may at any time abolish such
other committees or any of them.
a. Procedure. Each committee appointed pursuant to this Section
shall, by a vote of a majority of its members, fix its own
times and places of meeting, determine the number of its
members constituting a quorum for the transaction of business,
and prescribe its own rules of procedure, no change in which
shall be made save by a majority vote of its members.
b. Responsibilities. Each committee appointed pursuant to this
Section shall exercise the powers assigned to it by the Board
of Directors in its discretion.
c. Reports. Each committee appointed pursuant to this Section
shall keep regular minutes of proceedings, and all action by
each such committee shall, from time to time, be reported to
the Board of Directors as it shall direct. Such action shall
be subject to review, amendment and repeal by the Board,
provided that no rights of third parties shall be adversely
affected by such review, amendment or repeal.
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A Delaware Corporation
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SECTION 4. Term of Office. Each member of a committee shall hold office
until the first meeting of the Board of Directors following the annual meeting
of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE V OFFICERS
SECTION 1. Officers. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries,
Assistant Treasurers and Assistant Controllers and such other officers as deemed
necessary or appropriate. Such officers shall be elected annually by the Board
of Directors at its first meeting following the annual meeting of stockholders
(or at such other meeting as the Board of Directors determines), and each shall
hold office for the term provided by the vote of the Board, except that each
will be subject to removal from office in the discretion of the Board as
provided herein. The powers and duties of more than one office may be exercised
and performed by the same person.
SECTION 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
SECTION 3. Chairman of the Board. The Chairman of the Board of
Directors, if any, shall be the chief executive officer of the Corporation, and,
subject to the direction of the Board of Directors, shall have general charge of
the management and direction of the business, affairs and property of the
Corporation, and general supervision over its other officers and agents, and,
when present, shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time.
SECTION 4. President. The President shall be the chief operating
officer of the Corporation. In general, he shall perform all duties incident to
the office of President and chief operating officer and shall see that all
orders and resolutions of the Board of Directors are carried into effect and
shall perform such other executive, supervisory and management functions and
duties as may be assigned to him from time to time by the Board of Directors or
the Chairman of the Board.
SECTION 5. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each Executive Vice President, Senior Vice President and Vice
President shall have and exercise such powers and shall perform such duties as
from time to time may be assigned to him or to her by the Board of Directors or
the President.
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SECTION 6. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books provided for
the purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation; shall see that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is so
affixed, he or she may attest the same; and, in general, the Secretary shall
perform all duties incident to the office of secretary of a corporation, and
such other duties as from time to time may be assigned to him or her by the
Board of Directors.
SECTION 7. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Secretary.
SECTION 8. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust companies
or other depositaries as shall, from time to time, be selected by the Board of
Directors; may endorse for collection on behalf of the Corporation checks, notes
and other obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; and in general, shall perform all the
duties incident to the office of treasurer of a corporation, and such other
duties as from time to time may be assigned by the Board of Directors.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 10. Controller. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe or as from time to time may be assigned by
the Chairman of the Board, if any, the President or the Treasurer.
SECTION 11. Assistant Controllers. The Assistant Controllers in order
of their seniority shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties as the Board of Directors shall prescribe or as from time to
time may be assigned by the Controller.
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SECTION 12. Subordinate Officers. The Board of Directors may appoint
such subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall fix the
compensation of all officers of the Corporation. It may authorize any officer,
upon whom the power of appointing subordinate officers may have been conferred,
to fix the compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may be removed,
with or without cause, by action of the Board of Directors.
SECTION 15. Bonds. The Board of Directors may require any officer of
the Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his or her duties, with one or more sureties and in such amount
as may be satisfactory to the Board of Directors.
ARTICLE VI CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President, Senior Vice President or a
Vice President and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Corporation, and may be countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, and shall
bear the corporate seal or a printed or engraved facsimile thereof. Where any
such certificate is signed by a transfer agent or transfer clerk acting on
behalf of the Corporation, the signatures of any such Chairman, Vice Chairman,
President, Executive Vice President, Senior Vice President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be
facsimiles, engraved or printed. In case any officer or officers, who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
such certificate or certificates, shall cease to be such officer or officers,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures shall have been used thereon had not
ceased to be such officer or officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate
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A Delaware Corporation
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or certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the seal affixed thereto, impressed thereon or reproduced therein had not
ceased to be the seal of the Corporation.
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to law, the Certificate of Incorporation, these
By-Laws, or any agreement to which the Corporation is a party, shall have the
restriction noted conspicuously on the certificate, and shall also set forth, on
the face or back, either the full text of the restriction or a statement of the
existence of such restriction and (except if such restriction is imposed by law)
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
either the full text of the preferences, voting powers, qualifications, and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
SECTION 2. Transfer of Shares. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person whether or not it shall have express or other notice thereof,
save as expressly provided by law, by the Certificate of Incorporation or these
By-Laws. It shall be the duty of each stockholder to notify the Corporation of
his or her post office address.
SECTION 3. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board of Directors (but
not the stockholders) may determine, preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the date for the
allotment of rights or the date when any issuance, change, conversion or
exchange of capital stock shall go into effect, during which time no transfer of
stock on the books of the Corporation may be made.
SECTION 4. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors (but not the stockholders) may fix a record date, which
record date shall not
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A Delaware Corporation
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precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (a) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; and (b) in the case of any other
action, shall not be more than sixty (60) days prior to such other action. If no
record date is fixed: (a) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (b) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors (but not the stockholders) may fix a new record date
for the adjourned meeting.
SECTION 5. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued under
the following conditions:
a. The owner of said certificate shall file with the Secretary or
any Assistant Secretary of the Corporation an affidavit giving
the facts in relation to the ownership, and in relation to the
loss or destruction of said certificate, stating its number
and the number of shares represented thereby; such affidavit
shall be in such form and contain such statements as shall
satisfy the Chairman or Vice Chairman of the Board, if any,
the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer, that said
certificate has been accidentally destroyed or lost, and that
a new certificate ought to be issued in lieu thereof. Upon
being so satisfied, any such officer may require such owner to
furnish the Corporation a bond in such sum and in such form as
he or she may deem advisable, and with a surety or sureties
approved by him or her, to indemnify and save harmless the
Corporation from any claim, loss, damage or liability which
may be occasioned by the issuance of a new certificate in lieu
thereof. Upon such bond being so filed, if so required, a new
certificate for the same number of shares shall be issued to
the owner of the certificate so lost or destroyed; and the
transfer agent and registrar, if any, of stock shall
countersign and register such new certificate upon receipt of
a written order signed by any such officer, and thereupon the
Corporation may save harmless said transfer agent and
registrar in the premises. In case of the surrender of the
original certificate, in lieu of which a new certificate has
been issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of
the issue of such new certificate may be surrendered; or
b. The Board of Directors of the Corporation may by resolution
authorize and direct any transfer agent or registrar of stock
of the Corporation to issue and register
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 15
respectively from time to time without further action or
approval by or on behalf of the Corporation new certificates
of stock to replace certificates reported lost, stolen or
destroyed upon receipt of an affidavit of loss and bond of
indemnity in form and amount and with surety satisfactory to
such transfer agent or registrar in each instance or upon such
terms and conditions as the Board of Directors may determine.
SECTION 6. Uncertificated Shares. The Board of Directors of the
Corporation may by resolution provide that one or more of any or all classes or
series of the stock of the Corporation shall be uncertificated shares, subject
to the provisions of Section 158 of the Delaware General Corporation Law.
SECTION 7. Transfer Agents and Registrars; Further Regulations. The
Board of Directors may appoint one or more banks, trust companies or
corporations doing a corporate trust business, in good standing under the laws
of the United States or any state therein, to act as the Corporation's transfer
agent and/or registrar for shares of one or more classes or series of its stock,
and the Board may make such other and further regulations, not inconsistent with
applicable law, as it may deem expedient concerning the issue, transfer and
registration of the Corporation's stock and stock certificates.
ARTICLE VII EXECUTION OF DOCUMENTS
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on
the Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors, which may in
its discretion authorize any such signatures to be facsimile.
SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board
of Directors shall have otherwise provided generally or in a specific instance,
all contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the Chairman or Vice Chairman of the
Board, if any, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall thereunto
authorize from time to time.
SECTION 3. Execution of Proxies. The Chairman or Vice Chairman of the
Board, if any, the President, any Executive Vice President, any Senior Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 16
ARTICLE VIII INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and
if allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
ARTICLE IX FISCAL YEAR
The fiscal year of the Corporation shall be determined from time to
time by vote of the Board of Directors.
ARTICLE X SEAL
The seal of the Corporation shall, subject to alteration by the Board
of Directors, consist of a flat-faced circular die with the word "Delaware",
together with the name of the Corporation and the year of incorporation, cut or
engraved thereon.
ARTICLE XI AMENDMENTS
These By-Laws may be altered, amended, changed or repealed and new
By-Laws adopted by the stockholders or by the Board of Directors in accordance
with the provisions set forth in the Certificate of Incorporation, in either
case at any meeting called for that purpose at which a quorum shall be present.
Any By-Law, whether made, altered, amended, changed or repealed by the
stockholders or the Board of Directors may be repealed, amended, changed,
further amended, changed, repealed or reinstated, as the case may be, either by
the stockholders or by the Board of Directors as above provided.
ARTICLE XII RESTRICTIONS ON TRANSFER OF
CERTAIN SHARES OF CAPITAL STOCK OF THE CORPORATION3
SECTION 1. Restrictions on Transfer. Any Person who receives any shares
of Common Stock of the Corporation (the "Merger Securities") issued pursuant to
the Agreement and Plan of Merger, dated as of February 19, 1997, by and among
the Corporation, IM-1 Acquisition
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3 Adopted June 12, 1997.
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 17
Corp. and Safesite Records Management Corporation, as amended (the "Merger
Agreement"), shall not Transfer (as defined herein), and the Corporation shall
not be required to register the Transfer of, the number of shares, rounded
upward to the nearest whole share (the "Subject Shares"), of the Merger
Securities equal to the product of (1) the quotient obtained by dividing (x) the
"Lock-up Value" by (y) the product of (A) the Common Stock Amount and (B) the
lesser of the Closing Price and the Determination Price multiplied by (2) the
Stock Merger Consideration received by such Person in connection with the
Merger, until the first anniversary date of the effective date of the Merger
Agreement (the "Effective Time"), except as otherwise allowed by the Board of
Directors of the Corporation in its sole discretion. The "Lock-up Value" shall
mean one half (1/2) of the sum of (x) the product of the Common Stock Amount and
the lesser of the Closing Price and the Determination Price plus (y) the Cash
Amount. The "Closing Price" shall mean the closing price per share of Acquiror
Stock for the trading day immediately prior to the Effective Time. The closing
price for such trading day shall be the last quoted sale price or, if not so
quoted, the average of the low bid and high asked prices on the Nasdaq National
Market System. Capitalized terms used herein and not otherwise defined shall
have the meanings prescribed therefor in the Merger Agreement. The term
"Transfer" means any indirect or direct transfer, offer to sell, sale,
assignment, grant of an option to acquire, pledge, or other disposition.
SECTION 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Subject Shares of Merger Securities issued upon
transfer that the shares represented by such certificates are subject to the
restrictions on transfer and registration of transfer imposed in this Article
XII.
SECTION 3. Termination of Restrictions on Transfers. The provisions of
this Article XII shall terminate in their entirety on the first anniversary of
the Effective Time.
ARTICLE XIII RESTRICTIONS ON TRANSFER OF CERTAIN
SHARES OF CAPITAL STOCK OF THE CORPORATION4
SECTION 1. Restrictions on Transfer. Except as otherwise allowed by the
Board of Directors of the Corporation in its sole discretion, until the earlier
of (i) the first anniversary of the effective date (the "Effective Time") under
the Agreement and Plan of Merger, dated as of September 26, 1997, by and among
the Corporation, Arcus Group, Inc. ("AGI"), United Acquisition Company ("UAC")
and Arcus Technology Services, Inc. ("ATSI, and together with AGI and UAC, the
"Arcus Parties") (as amended, the "Merger Agreement"), or (ii) the date on which
a Transfer (as such term is hereinafter defined in this Article XIII) may be
effected in a manner that the Corporation reasonably determines does not
adversely affect the tax-free nature of the Merger (as such term is defined in
the Merger Agreement) under Section 368(a) of the Internal Revenue Code of 1986,
as amended, any Person who receives any shares of
- --------
4 Adopted January 6, 1998.
<PAGE>
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 18
Common Stock of the Corporation issued pursuant to the Merger Agreement (the
"Merger Securities") shall not Transfer, and the Corporation shall not be
required to register the Transfer of, such Merger Securities. The term
"Transfer" means any indirect or direct transfer, offer to sell, sale,
assignment, grant of an option to acquire, pledge, or other disposition;
provided, however, that a Transfer by a partnership or a limited liability
company to its partners or members, which Transfer is to all partners or members
in proportion to their interests in such partnership or limited liability
company, shall be permissible except that the Merger Securities so Transferred
shall continue to be subject to the restrictions on transfer set forth in this
Article XIII; provided further that the provisions of this section shall not
apply to Merger Securities to the extent such Merger Securities were issued in
exchange for shares of common stock of AGI of any Person who received such
shares pursuant to the exercise of an option as a result of the application of
Section 5.10 of the Merger Agreement.
SECTION 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Merger Securities issued upon the Merger or upon any
Transfer thereof that the shares represented by such certificates are subject to
the restrictions on transfer and registration of transfer imposed in this
Article XIII.
EXHIBIT 5
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
January 13, 1998
Iron Mountain Incorporated
745 Atlantic Avenue
Boston, MA 02111
Re: Registration Statement on Form S-4;
1,000,000 shares of Iron Mountain
Incorporated Common Stock, par value $.01 per share
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933,
as amended (the "Securities Act"), by Iron Mountain Incorporated, a Delaware
corporation (the "Company"), of 1,000,000 shares (the "Registered Shares") of
its Common Stock, par value $.01 per share ("Common Stock"), all of which
Registered Shares are to be offered by the Company, 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-4
(the "Registration Statement") under the Securities Act. The Registered Shares
are to be offered on a delayed or continuous basis in connection with business
combination transactions pursuant to Rule 415 under the Securities Act.
We assume that the number, issuance and sale of the Registered Shares
to be offered from time to time will be determined and authorized by proper
action of the Board of Directors of the Company in accordance with the
parameters described in the Registration Statement (each a "Board Action") and
in accordance with the Company's Amended and Restated Certificate of
Incorporation and applicable Delaware law. We further assume that prior to the
issuance of any Registered Shares, there will exist, under the Company's Amended
and Restated Certificate of Incorporation, the requisite number of authorized
shares of Common Stock for such issuance which are unissued and are not
otherwise reserved for issuance.
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
<PAGE>
Iron Mountain Incorporated
January 13, 1998
Page 2
Incorporation of the Company as presently in effect, corporate records,
certificates andstatements of officers and accountants of the Company and of
public officials, 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, 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
the Registration Statement has become effective under the Securities Act, upon
due authorization by Board Action of an issuance of Registered Shares, and upon
delivery of certificates representing the Registered Shares against payment
therefor in the manner contemplated by such Board Action and in accordance with
the terms of such agreements (if any) relating to one or more business
combination transactions as the Company may enter into from time to time, the
Registration Statement and any applicable Prospectus Supplement, the Registered
Shares represented by such certificates will be duly authorized, validly issued,
fully paid and nonassessable by the Company.
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 Securities Act or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Sullivan & Worcester LLP
SULLIVAN & WORCESTER LLP
EXHIBIT 10.13
STOCKHOLDER AGREEMENT
AGREEMENT, dated as of September 17, 1997, among Iron Mountain
Incorporated, a Delaware corporation ("Acquiror"), and Kent P. Dauten, an
individual having a business address at Keystone Capital, Inc., 520 Lake Cook
Road, Suite 450, Deerfield, IL 60015 (the "Principal Stockholder").
W I T N E S S E T H:
WHEREAS, the Principal Stockholder is the beneficial and
record owner of 8,050 shares of the Class A Common Stock, $.01 par value per
share (the "Class A Company Stock") of HIMSCORP, Inc., a Delaware corporation
(the "Company"), and 8,346.2 shares of the Class B Common Stock, $.01 par value
per share (the "Class B Company Stock" and, collectively with the Class A
Company Stock, the "Company Stock") of the Company;
WHEREAS, concurrently with the execution of this Agreement,
Acquiror and the Company are entering into an Agreement and Plan of Merger (the
"Merger Agreement") pursuant to which the Company will be merged with and into a
wholly owned subsidiary of Acquiror (the "Merger"), with such subsidiary of
Acquiror continuing as the Surviving Corporation; and
WHEREAS, in order to induce Acquiror to enter into the Merger
Agreement, the Principal Stockholder wishes to make certain representations,
warranties, covenants and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein but not
otherwise defined herein shall have the respective meanings ascribed thereto in
the Merger Agreement and the following terms shall have the following meanings:
"beneficially own" shall have the meaning set forth in Rule
13d-3 under the Exchange Act.
"Equity Securities" shall have the meaning set forth in Rule
405 under the Securities Act.
"Intention" shall have the meaning set forth in Section
2.1(f).
<PAGE>
"Merger Agreement" shall have the meaning set forth in the
second recital of this Agreement.
"Principal Stockholder" shall have the meaning set forth in
the opening paragraph of this Agreement.
"Related Transaction" shall mean a transaction that is in
contemplation of, or related or pursuant to, the Merger or the Merger Agreement.
"Restricted Stockholder" shall mean any Person that,
individually or together with its Affiliates, beneficially owns, or is a member
of a "group" (within the meaning of Section 13(d)(3) of the Exchange Act) that
beneficially owns, 5% or more of Acquiror Stock.
"Sale" shall have the meaning set forth in Section 2.1(f).
"Principal Stockholder Disclosure Letter" shall have the
meaning set forth in Section 2.1(a).
"Third Party" shall mean a party or parties unaffiliated with
either the Company or Acquiror.
"Transfer" shall have the meaning set forth in Section 3.8.
"Voting Securities" shall have the meaning set forth in Rule
405 under the Securities Act.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1 Representations and Warranties of the Principal
Stockholder. The Principal Stockholder represents and warrants to Acquiror as
follows:
(a) Ownership of Company Shares. Except as disclosed in
Section 2.1(a) of the letter from the Principal Stockholder to Acquiror, dated
the date hereof (the "Principal Stockholder Disclosure Letter"), the Principal
Stockholder is the beneficial owner of 8,050 shares of Class A Company Stock and
8,346.2 shares of Class B Company Stock, free and clear of all Liens (other than
restrictions under securities laws generally) and, except for this Agreement and
the Merger Agreement, there are no options, warrants or other rights,
agreements, arrangements or commitments of any character to which the Principal
Stockholder is a party relating to the pledge, disposition or voting of any
shares of the Company Stock that are owned by the Principal Stockholder, and
there are no voting trusts or voting agreements with respect to such shares.
Such 8,050 shares of Class A Company Stock and 8,346.2 shares of Class B Company
Stock constitute all of the outstanding shares of capital stock of the Company
owned beneficially or of record by the Principal Stockholder and the Principal
Stockholder does not have any options,
-2-
<PAGE>
warrants or other rights to acquire any additional shares of capital stock of
the Company or any security exercisable or exchangeable for, or convertible
into, shares of capital stock of the Company.
(b) Authority to Execute and Perform Agreements. The Principal
Stockholder has the full legal right and power and all authority required to
enter into, execute and deliver this Agreement and to perform fully his
obligations hereunder. This Agreement has been duly executed and delivered and
constitutes the legal, valid and binding obligation of the Principal Stockholder
enforceable against the Principal Stockholder in accordance with its terms
(subject to the Enforceability Exceptions).
(c) No Conflicts; Consents. Except as set forth in Section
2.1(c)(i) of the Principal Stockholder Disclosure Letter, the execution and
delivery by the Principal Stockholder of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, conflict with or
result in any violation of or default (with or without notice or lapse of time,
or both) under (A) any contract, agreement or other binding arrangement to which
the Principal Stockholder is a party or (B) any judgment, order, writ,
injunction or decree of any court, governmental body, administrative agency or
arbitrator applicable to the Principal Stockholder. Except as set forth in
Section 2.1(c)(ii) of the Principal Stockholder Disclosure Letter, no
Governmental Authorizations or Private Authorizations are required to be
obtained or made by the Principal Stockholder in connection with the execution
and delivery by the Principal Stockholder of this Agreement and the consummation
of the transactions contemplated hereby.
(d) Information Supplied. None of the information specifically
supplied or to be supplied by the Principal Stockholder with respect to the
Principal Stockholder for inclusion or incorporation by reference in the proxy
statement or other written information to be delivered to all stockholders of
the Company (the "Proxy Statement") will, at the date the Proxy Statement is
first mailed to the Company's stockholders and at the time of the special
meeting of the Company's stockholders for the purpose of voting on the Merger
Agreement or at the time such stockholders execute written consents for the
purpose of approving the Merger Agreement, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading.
(e) Investigation. The Principal Stockholder has had a full
opportunity to review and discuss this Agreement, the Escrow Agreement and the
Merger Agreement (including, without limitation, with respect to the
representations and warranties in the Merger Agreement and the related
Disclosure Schedule) and to ask all questions of Acquiror and the Company and
their respective directors and executive officers necessary in order for the
Principal Stockholder to make an informed decision to enter into this Agreement.
In this regard, the Principal Stockholder acknowledges that, in connection with
the negotiations with respect to the Merger Agreement, Acquiror has disclosed to
the Principal Stockholder certain confidential information concerning Acquiror's
operations and business plans (including, without limitation, potential
-3-
<PAGE>
acquisitions) and has advised the Principal Stockholder that Acquiror
anticipates making further and more detailed public announcements of certain
business plans in the near future, none of which in Acquiror's opinion involves
a Material Adverse Change in Acquiror's business operations. Accordingly,
Acquiror has indicated its willingness, and has offered the Principal
Stockholder the option, to defer seeking approval of the Merger Agreement by the
Stockholders of the Company and, accordingly, the Closing under the Merger
Agreement until such time as those announcement are made, which Acquiror
anticipates would occur not later than the end of September. The Principal
Stockholder acknowledges that he nevertheless is prepared to seek such approval
and proceed with the Closing under the Merger Agreement at an earlier date. The
Principal Stockholder further acknowledges that he is a sophisticated investor
and has consented to the scope of the disclosure previously made to him about
Acquiror's business plans and that, subject to his rights in respect of a breach
of Acquiror's representations and warranties in Section 2.2 hereof, the
Principal Stockholder agrees to waive any claim or right he might otherwise have
arising out of the information concerning Acquiror's business plans referred to
above made public on or after the date hereof and on or prior to September 30,
1997.
(f) Intent to Transfer Shares. The Principal Stockholder has,
and as of the Closing Date, will have, no present plan or intention (an
"Intention") to sell, transfer, exchange, pledge (other than in a pre-existing
bona fide margin account) or otherwise dispose of, including a distribution by a
partnership to its partners, or a corporation to its shareholders, or any other
transaction which results in a reduction of ownership (any of the foregoing, a
"Sale") of more than 162/3% of the shares of Acquiror Stock issued to the
Principal Stockholder in the Merger, or any securities that may be paid as a
dividend otherwise distributed thereon or with respect thereto, or issued or
delivered in exchange or substitution therefor or upon exercise of options held
by the Principal Stockholder. For purposes of the preceding sentence, shares of
Company Stock (or the portion thereof) with respect to which a Sale will occur
prior to the Merger shall be considered to be shares of Company Stock that are
exchanged for Acquiror Stock in the Merger and then disposed of pursuant to an
Intention. A Sale of Acquiror Stock shall be considered to have occurred
pursuant to an Intention if, among other things, such Sale occurs in a related
transaction. Subject to the terms of the Investment Agreement between the
Principal Stockholder and Acquiror, the Principal Stockholder (i) reserves the
rights at any time after the Closing Date to evaluate his investment portfolio,
including shares of Acquiror Stock and any other securities issued by Acquiror,
in light of new, material developments, and to make such investment decision
with respect to such securities as the Principal Stockholder and his investment
advisors, if any, shall deem to be in his best interests, and (ii) specifically
disavows any undertaking to hold any securities issued by Acquiror for any
specific period.
2.2 Representations and Warranties of Acquiror. Acquiror
hereby represents and warrants to the Principal Stockholder that the
confidential information disclosed to the Principal Stockholder referred to in
Section 2.1(e) hereof (i) is, to Acquiror's knowledge, true in all material
respects and (ii) has not been disclosed in a manner that is intentionally
misleading to the Principal Stockholder.
-4-
<PAGE>
ARTICLE III
COVENANTS
3.1 No Disposition or Acquisition of Shares. The Principal
Stockholder agrees that he shall not sell, transfer, pledge, hypothecate,
encumber or otherwise dispose of (except in the Merger pursuant to the Merger
Agreement or upon the Principal Stockholder's death), or enter into any
contract, option or other arrangement or understanding with respect to the sale,
transfer, pledge, hypothecation, encumbrance or other disposition of (except in
the Merger pursuant to the Merger Agreement), any of the shares of Company Stock
owned of record or beneficially by him.
3.2 Voting Arrangements. The Principal Stockholder agrees
that, except pursuant to this Agreement, he shall not grant any proxies, deposit
any shares of Company Stock into a voting trust or enter into any voting
agreement with respect to any shares of Company Stock now or hereafter owned,
beneficially or of record, by him, other than proxies to vote such shares at any
annual or special meeting of stockholders of the Company on matters unrelated to
the matters set forth in Section 4.1 hereof.
3.3 Satisfaction of Conditions to the Merger. The Principal
Stockholder agrees that he, in his capacity as a Stockholder, shall assist and
cooperate with the parties to the Merger Agreement in doing all things
necessary, proper or advisable under Applicable Laws as promptly as practicable
to consummate and make effective the Merger and the other Transactions, and he
shall not take any action that would or is reasonably likely to result in any of
his representations and warranties set forth in this Agreement being untrue as
of the date made or in any of the conditions set forth in Article 6 of the
Merger Agreement not being satisfied.
In addition, Acquiror and the Principal Stockholder agree that they
will execute and deliver the Joinder to Registration Rights Agreement.
3.4 No Other Transactions. The Principal Stockholder agrees
that he shall not, nor shall he permit any of his Representatives (including,
without limitation, any investment banker, attorney or accountant retained by
him) to, initiate, solicit or facilitate, directly or indirectly, any inquiries
or the making of any proposal with respect to an Other Transaction, engage in
any discussions or negotiations concerning, or provide to any other person any
information or data relating to, the Company or any of its Subsidiaries for the
purposes of, or otherwise cooperate in any way with or assist or participate in,
or facilitate any inquiries or the making of any proposal which constitutes, or
may reasonably be expected to lead to, a proposal to seek or effect an Other
Transaction, or agree to or endorse any Other Transaction; provided, however,
that nothing contained in this Section shall prohibit the Principal Stockholder,
if he is a member of Board of Directors of the Company, from making any
disclosure, in his capacity as a director of the Company, to other stockholders
of the Company that, in the reasonable judgment of the Company's Board of
Directors in accordance with, and based upon the written advice of,
-5-
<PAGE>
outside counsel, is required under Applicable Law. The Principal Stockholder
shall promptly advise Acquiror of, and communicate the material terms of, any
proposal he may receive, or any inquiries he receives which may reasonably be
expected to lead to such a proposal relating to an Other Transaction, and the
identity of the Person making it. The Principal Stockholder shall further advise
Acquiror of the status and changes in the material terms of any such proposal or
inquiry (or any amendment to any of them). During the term of this Agreement,
the Principal Stockholder agrees that he shall not enter into any agreement oral
or written, and whether or not legally binding, with any Person that provides
for, or in any way facilitates, an Other Transaction.
3.5 Standstill. The Principal Stockholder agrees that, (i)
from the date hereof until the Closing Date and (ii) from and after the Closing
Date for so long as he shall be a Restricted Stockholder up to and including the
tenth anniversary of the date of this Agreement, he shall not, and shall use his
best efforts to cause his Affiliates not to, without the prior written consent
of the board of directors of Acquiror, (A) in any manner acquire, agree to
acquire or make any proposal to acquire, directly or indirectly, any Equity
Securities of Acquiror or any rights or options to acquire such Equity
Securities (other than the shares of Acquiror Stock received by him in the
Merger and other than options granted to directors of Acquiror), (B) propose to
enter into, directly or indirectly, a merger or other business combination
involving Acquiror or propose to purchase, directly or indirectly, a material
portion of the assets of Acquiror, (C) make, or in any way participate, directly
or indirectly, in, any "solicitation" of "proxies" (as such terms are used in
Regulation 14A under the Exchange Act) to vote or consent or seek to advise or
influence any Person with respect to the voting of, or granting of a consent
with respect to, any Voting Securities of Acquiror, (D) form, join or in any way
participate in a "group" (within the meaning of Section 13(d)(3) of the Exchange
Act) for the purpose of acquiring, holding voting or disposing of any Equity
Securities of Acquiror, (E) otherwise act, alone or in concert with others, to
seek to control or influence in any public manner or public forum the management
or policies of Acquiror; provided, however, that the foregoing shall not limit
the ability to vote any shares of any Equity Securities of Acquiror, (F)
disclose any intention, plan or arrangement inconsistent with the foregoing, (G)
advise, assist (including by knowingly providing or arranging financing for that
purpose) or encourage any other Person in connection with any of the foregoing
or (H) take any action (other than in exercising his registration rights under
the Registration Rights Agreement) which might require Acquiror to make a public
announcement regarding the possibility of a transaction between the Principal
Stockholder and Acquiror (including any of their respective Affiliates).
3.6 Confidentiality, Non-Competition and Non-Solicitation.
(a) Except with the prior written consent of Acquiror, for a
period of five years from the Closing Date, the Principal Stockholder shall not
disclose or make available, directly or indirectly, to others or use for his or
others' benefit confidential information, whether or not reduced to written or
other recorded form, related to Acquiror or the Company and its Subsidiaries,
including the names of customers, the contact persons at customers, pricing, the
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software programs utilized by Acquiror or the Company and its Subsidiaries in
the operation of its business and all other information material to the
operation, management, marketing or financing of Acquiror, the Company and its
Subsidiaries which is not known or generally available to the public or
competitors in the records management or records storage industries.
The confidentiality obligations of this Section shall not apply to information:
(i) which is required to be disclosed by judicial or
administrative process or order, or by other requirements of law;
(ii) which is or becomes generally available to the public
other than as a result of a breach of this Section;
(iii) which is received from a third party who obtained such
information other than under an obligation of confidentiality; or
(iv) which Acquiror discloses on a nonconfidential basis or
otherwise makes available to the general public or the trade.
(b) The Principal Stockholder agrees that he shall not, for a
period of five years from the Closing Date, directly or indirectly own, manage,
engage in, participate in, provide advice to, be employed by, have a financial
interest in, or solicit or attempt to obtain business from any customer of
Acquiror or the Company or any of its Subsidiaries on behalf of, any enterprise
which provides records management or records storage services to business
facilities (including, without limitation, the management, handling, storage,
filing, processing and retrieval of medical records used by hospitals, private
practitioners, and other medical institutions) located in the United States.
This Section 3.6(b) shall not prohibit the Principal Stockholder from
owning Equity Securities of Acquiror or acquiring up to five percent (5%) of any
class of securities registered pursuant to the Exchange Act of any corporation
which may engage in the records management storage service business in direct
competition with the business of Acquiror within the geographical areas set
forth in this Section 3.6(b).
(c) The Principal Stockholder agrees that he shall not on his
own behalf or on behalf of any other Person under his control or on behalf of
others, for a period of five years from the Closing Date, directly or indirectly
solicit for employment (including as an independent contractor), or endeavor to
entice away, any of the officers, employees or independent contractors of
Acquiror or the Company or any of their respective subsidiaries who perform
services for Acquiror or the Company or any of their respective subsidiaries.
For the avoidance of doubt, Acquiror acknowledges that this Section 3.6(c) shall
not prohibit the Principal Stockholder from employing, on his own behalf or on
behalf of any other Person under his control or on behalf of others, a former
officer, employee or independent contractor of Acquiror or the Company or its
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subsidiaries who has ceased to perform services for Acquiror or the Company or
any of their respective subsidiaries without enticement by the Principal
Stockholder and who seeks employment (including as an independent contractor) by
the Principal Stockholder without solicitation by the Principal Stockholder.
(d) The Principal Stockholder acknowledges that he has
carefully read all the terms herein stated and agrees that the same are
necessary for the reasonable and proper protection of the value of the Company;
and that each and every covenant is reasonable with respect to such matter,
length of time, and the geographical areas described; and that irrespective of
all other conditions, the covenants and restrictions hereinabove provided shall
be operative during the full period and throughout the geographical area
described. In the event any court finds any such restraint or limitation to be
unreasonable, then it is the intent of the parties that such court should
determine the maximum restraint or limitation which is reasonable and
enforcement will be of that restraint or limitation.
(e) The Principal Stockholder acknowledges that confidential
information in his possession related to the Company and its Subsidiaries has
particular value, the loss of confidentiality of which by communication to
unauthorized persons cannot be reasonably or adequately compensated for by
damages alone. Moreover, the Principal Stockholder agrees that any breach of
paragraphs (a), (b) and (c) of this Section 3.6 would give rise to damages which
would be difficult to calculate. Therefore, the parties hereby agree that in the
event of a breach of any of the terms and conditions of this Section 3.6,
Acquiror shall be entitled to equitable relief by way of an injunction. This
Section 3.6 shall not be construed as a limitation upon Acquiror's remedies for
such breach.
(f) The restrictions contained in this Section 3.6 shall be
broadly construed by any court having jurisdiction of the matter in order to
protect Acquiror to the maximum degree possible.
ARTICLE IV
PROXY; WAIVER OF RIGHTS
4.1 Proxy. The Principal Stockholder hereby agrees, at any
meeting of the stockholders of the Company, however called, and at every
adjournment thereof, and in any action by written consent of the stockholders of
the Company, to (a) vote all of the shares of Company Stock then owned,
beneficially or of record, by him in favor of the adoption of the Merger
Agreement as in effect on the date hereof (as such agreement may be amended (1)
as contemplated by Section 7.3 of the Merger Agreement or (2) with the consent
of the Principal Stockholder) and each of the other transactions contemplated
thereby and any action required in furtherance thereof, (b) vote such shares
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation of
the Company under the Merger Agreement, and (c) vote such shares against any
Other Transaction or any other action
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or agreement that, directly or indirectly, is inconsistent with or that would,
or is reasonably likely to, directly or indirectly, impede, interfere with or
attempt to discourage the Merger or any other transaction contemplated by the
Merger Agreement, including, but not limited to (i) any extraordinary corporate
transaction (other than the Merger on the terms set forth in the Merger
Agreement), such as a merger, consolidation, business combination,
reorganization recapitalization or liquidation involving the Company, (ii) a
sale or transfer of a material amount of assets of the Company, or (iii) any
material change in the Company's corporate structure or business; provided,
however, that, if the Principal Stockholder is a member of the Board of
Directors of the Company, nothing herein shall be construed to obligate him to
act in his capacity as a director in any manner which may conflict with his
fiduciary duties as a director of the Company.
In furtherance of the foregoing, (i) the Principal Stockholder
hereby appoints Acquiror and the proper officers of Acquiror, and each of them,
with full power of substitution in the premises, his proxies to vote all his
shares of Company Capital Stock at any meeting, general or special, of the
stockholders of the Company, and to execute one or more written consents or
other instruments from time to time in order to take such action without the
necessity of a meeting of the stockholders of the Company, in accordance with
the provisions of the preceding paragraph and (ii) Acquiror hereby agrees to
vote such shares or execute written consents or other instruments in accordance
with the provisions of the preceding paragraph.
The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest and shall revoke all prior proxies granted by the Principal
Stockholder. The Principal Stockholder shall not grant any proxy to any person
which conflicts with the proxy granted herein, and any attempt to do so shall be
void. The power of attorney granted herein is a durable power of attorney and
shall survive the disability or incompetence of the Principal Stockholder.
4.2 Appraisal Rights. The Principal Stockholder hereby waives
his rights to appraisal under Section 262 of the DGCL with respect to any shares
of Company Stock owned by him in connection with the transactions contemplated
by the Merger Agreement. The Principal Stockholder hereby agrees that he will
not in any way attempt to influence, encourage or persuade any Person who
beneficially owns any Company Stock to exercise any rights to appraisal such
Person may have pursuant to Section 262 of the DGCL in connection with said
transactions.
ARTICLE V
MISCELLANEOUS
5.1 Termination. Except as otherwise expressly provided
herein, this Agreement and the parties' respective obligations hereunder shall
terminate upon the earlier to occur of (i) the mutual consent of Acquiror and
the Principal Stockholder, (ii) the termination of the Merger Agreement prior to
the consummation of the Merger (except in the event of a
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termination of the Merger Agreement pursuant to Section 7.1(d)(i) or (iii)
thereof, in which case this Agreement and the parties' respective obligations
hereunder shall terminate one year after such termination of the Merger
Agreement) (it being understood that the Principal Stockholder's obligations
under this Agreement shall not affect the Company's rights under the Merger
Agreement to terminate the Merger Agreement in accordance with the terms
thereof) and (iii) the tenth anniversary of the Closing Date.
5.2 Amendment. This Agreement may be amended only by a written
instrument executed by the parties or their respective successors or assigns.
5.3 Notices. Notices, requests, permissions, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given if signed by the respective persons giving them (in the case of any
corporation the signature shall be by an officer thereof) and delivered by hand,
deposited in the United States mail (registered or certified, return receipt
requested), properly addressed and postage prepaid, or delivered by telecopy:
If to Acquiror, to:
Iron Mountain Incorporated
745 Atlantic Avenue, 10th Floor
Boston, Massachusetts 02111
Telephone: (617) 357-4455
Telecopy: (617) 350-7881
Attention: Chairman of the Board
with a copy to:
Sullivan & Worcester LLP
One Post Office Square
Boston, Massachusetts 02109
Telephone: (617) 338-2800
Telecopy: (617) 338-2880
Attention: William J. Curry, Esq.
If to the Principal Stockholder, to:
Kent P. Dauten
Keystone Capital, Inc.
520 Lake Cook Road, Suite 450
Deerfield, IL 60015
Telephone: (847) 236-5350
Telecopy: (847) 236-9529
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with a copy to:
Kirkland & Ellis
200 East Randolph Drive
Chicago, IL 60601
Telephone: (312) 861-2000
Telecopy: (312) 861-2200
Attention: Edward T. Swan, Esq.
5.4 Counterparts. This Agreement may be executed in one or
more counterparts and each counterpart shall be deemed to be an original, but
all of which shall constitute one and the same original.
5.5 Applicable Law. This Agreement shall be governed by, and
construed in accordance with the laws of the State of Delaware without reference
to choice of law principles, including all matters of construction, validity and
performance.
5.6 Severability; Enforcement. The invalidity of any portion
hereof shall not affect the validity, force or effect of the remaining portions
hereof. If it is ever held that any restriction hereunder is too broad to permit
enforcement of such restriction to its fullest extent, each party agrees that a
court of competent jurisdiction may enforce such restriction to the maximum
extent permitted by law, and each party hereby consents and agrees that such
scope may be judicially modified accordingly in any proceeding brought to
enforce such restriction. In furtherance of the foregoing, if any court
construes any of the provisions of Section 3.6, or any part thereof, to be
unreasonable because of the duration of such provision or the geographic scope
thereof, such court shall have the power to reduce the duration or restrict the
geographic scope of such provision and to enforce such provision as so reduced
or restricted.
5.7 Further Assurances. Each party hereto shall execute and
deliver such additional documents as may be necessary or desirable to consummate
the transactions contemplated by this Agreement.
5.8 Parties in Interest; Assignment. Neither this Agreement
nor any of the rights, interest or obligations hereunder shall be assigned by
any of the parties hereto without the prior written consent of the other
parties. Notwithstanding the foregoing, for the purposes of Sections 3.5 and
3.6, the term Acquiror shall include any Entity controlling, controlled by or
under common control with Acquiror, any successor, by operation of law or
otherwise of Acquiror, or any entity controlling, controlled by or under common
control with Acquiror, and any assignee of Acquiror.
5.9 Entire Agreement. This Agreement and the Merger Agreement
and the Collateral Documents contain the entire understanding of the parties
hereto and thereto with respect to the subject matter contained herein and
therein, and supersede and cancel all prior
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agreements, negotiations, correspondence, undertakings and communications of the
parties, oral or written, respecting such subject matter. There are no
restrictions, promises, representations, warranties, agreements or undertakings
of any party hereto or to the Merger Agreement or any of the Collateral
Documents with respect to the transactions contemplated by this Agreement and
the Merger Agreement and the Collateral Documents other than those set forth
herein or therein or made hereunder or thereunder.
5.10 Specific Performance. The parties hereto agree that the
remedy at law for any breach of this Agreement will be inadequate and that any
party by whom this Agreement is enforceable shall be entitled to specific
performance in addition to any other appropriate relief or remedy. Such party
may, in its sole discretion, apply to a court of competent jurisdiction for
specific performance or injunctive or such other relief as such court may deem
just and proper in order to enforce this Agreement or prevent any violation
hereof and, to the extent permitted by applicable law, each party waives any
objection to the imposition of such relief.
5.11 Headings; References. The section and paragraph headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. All references
herein to "Sections" or "Exhibits" shall be deemed to be references to Articles
or Sections hereof or Exhibits hereto unless otherwise indicated.
[Signatures appear on following page.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman and Chief Executive Officer
/s/ Kent P. Dauten
Kent P. Dauten
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in Iron
Mountain Incorporated's Registration Statement and related Prospectus filed on
or about January 12, 1998 on Form S-4 and to the incorporation by reference
therein of our reports dated February 28, 1997 (except for Note 12, as to which
the date is September 26, 1997), and April 30, 1997 (except for Note 15, as to
which the date is September 26, 1997) with respect to the financial statements
of Arcus Technology Services, Inc. and Arcus Group, Inc., respectively, included
in Iron Mountain Incorporated's Current Reports on Form 8-K dated October 30,
1997 and November 25, 1997, filed with the Securities and Exchange Commission.
Ernst & Young LLP
Dallas, Texas
January 6, 1998
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-4 of our report dated April
4, 1995, for Arcus Group, Inc. included in Iron Mountain Incorporated's Form 8-K
filed with the Securities and Exchange Commission on November 25, 1997, and to
all references to our Firm included in this registration statement.
Arthur Andersen LLP
Houston Texas
January 5, 1998
EXHIBIT 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-4 of Iron Mountain Incorporated and to the
incorporation by reference therein of our report dated February 21, 1997, with
respect to the consolidated statements of HIMSCORP, Inc. included in Iron
Mountain Incorporated's Current Report on Form 8-K dated November 25, 1997 filed
with the Securities and Exchange Commission.
Ernst & Young LLP
Chicago, Illinois
January 5, 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-4 of our report dated March
4, 1997, (except for Note 11, as to which the date is October 1, 1997) for
Allegiance Business Archives, Ltd. included in Iron Mountain Incorporated's Form
8-K filed with the Securities and Exchange Commission on November 25, 1997, and
to all references to our Firm included in this registration statement.
Stout, Causey & Horning, P.A.
Cockeysville, Maryland
January 5, 1998
EXHIBIT 23.5
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our report dated August
7, 1997, for Records Retention/FileSafe included in Iron Mountain Incorporated's
Form 8-K filed with the Securities and Exchange Commission on November 25, 1997,
and to all references to our Firm included in this registration statement.
Abbott, Stringham & Lynch
Campbell, California
January 5, 1998
EXHIBIT 23.6
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our reports dated August
15, 1997, April 25, 1997 and September 12, 1997, for Security Archives of
Minnesota, Wellington Financial Services, Inc. and Data Securities
International, Inc., respectively, included in Iron Mountain Incorporated's Form
8-K filed with the Securities and Exchange Commission on October 30, 1997, and
to all references to our Firm included in this registration statement.
Arthur Andersen LLP
Minneapolis, Minnesota
Detroit, Michigan
San Jose, California
January 5, 1998
EXHIBIT 23.7
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our report dated August
8, 1997, for Concorde Group, Inc. and Neil Tucker Trust included in Iron
Mountain Incorporated's Form 8-K filed with the Securities and Exchange
Commission on October 30, 1997, and to all references to our Firm included in
this registration statement.
Fisher, Schacht & Oliver, LLP
Rochester, New York
January 5, 1998
EXHIBIT 23.8
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our reports dated March
14, 1997, and September 6, 1996, for Safesite Records Management Corporation and
Mohawk Business Record Storage, Inc., respectively, included in Iron Mountain
Incorporated's Form S-4/A filed with the Securities and Exchange Commission on
May 13, 1997, and to all references to our Firm included in this registration
statement.
Arthur Andersen LLP
Boston, Massachusetts
Minneapolis, Minnesota
January 5, 1998
EXHIBIT 23.9
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our report dated January
16, 1996, for Nashville Vault Company, Ltd. included in Iron Mountain
Incorporated's Form S-4/A filed with the Securities and Exchange Commission on
May 13, 1997, and to all references to our Firm included in this registration
statement.
Geo. S. Olive & Co. LLC
Indianapolis, Indiana
January 5, 1998
EXHIBIT 23.10
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement of
Iron Mountain Incorporated on Form S-4 of our report dated July 19, 1996,
(except as to Note 11 which is as of September 1, 1996) on our audit of the
financial statements of International Record Storage and Retrieval Service, Inc.
as of and for the year ended December 31, 1995, included in Iron Mountain
Incorporated's Form S-4/A filed with the Securities Exchange Commission on May
13, 1997, and the reference in this registration statement to our Firm as
experts.
Rothstein, Kass & Company, P.C.
Roseland, New Jersey
January 5, 1998
EXHIBIT 23.11
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement on Form S-4 of our reports dated March
4, 1997, (except for Note 11.a. and e. for which the date is March 19, 1997) for
Iron Mountain Incorporated included in Iron Mountain Incorporated's Form 10-K
filed with the Securities and Exchange Commission on March 28, 1997, and to all
references to our Firm included in this registration statement.
Arthur Andersen LLP
Boston, Massachusetts
January 5, 1998
