As filed with the Securities and Exchange Commission on May 24, 2002
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IRON MOUNTAIN INCORPORATED
(Exact name of registrant as specified in its charter)
Pennsylvania 23-2588479
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification No.)
745 Atlantic Avenue, Boston, Massachusetts 02111
(617) 535-4766
(Address of Principal Executive Offices including zip code)
Iron Mountain Incorporated 2002 Stock Incentive Plan
(Full Title of the Plan)
C. Richard Reese COPY TO:
Chairman of The Board of William J. Curry, Esq.
Directors and Chief Executive Officer Sullivan & Worcester LLP
Iron Mountain Incorporated One Post Office Square
745 Atlantic Avenue Boston, Massachusetts 02109
Boston, Massachusetts 02111 (617) 338-2800
(617) 535-4766
(Name, Address and Telephone Number of Agent For Service)
If, as a result of stock splits, stock dividends or similar transactions, the
number of securities purported to be registered on this registration statement
changes, the provisions of Rule 416 under the Securities and Exchange Act of
1933, as amended, shall apply to this registration statement.
CALCULATION OF REGISTRATION FEE
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Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered Registered Unit(1) Price(1) Registration Fee
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Common Stock, $0.01 par value 1,352,543 $31.88 43,119,070.84 $3,966.95
per share
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(1) The proposed maximum offering price per share and the proposed maximum aggregate offering price have been
estimated solely for the purpose of calculating the amount of the registration fee in accordance with Rules 457(c)
and 457(h) under the Securities Act of 1933 on the basis of the average of the high and low prices of the Common
Stock on the New York Stock Exchange on May 22, 2002.
PART I - INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information; Item 2. Registrant Information and Employee Plan
Annual Information.
The documents containing the information required by these items will
be given to employees participating in the Iron Mountain Incorporated 2002 Stock
Incentive Plan (the "Plan") and are not required to be filed with the Securities
and Exchange Commission as part of the registration statement or as an exhibit
thereto.
Employees participating in the Plan may obtain a copy of the Plan or
the documents incorporated by reference in Item 3 of Part II below, at no cost
by writing or telephoning us at: 745 Atlantic Avenue, Boston, Massachusetts
02111, (617) 535-4799, Attention: Investor Relations. These documents are also
incorporated by reference in the Section 10(a) prospectus.
PART II - INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following additional documents, which have been filed by the
Company with the Securities and Exchange Commission (the "Commission"), are
incorporated by reference in and made a part of this registration statement, as
of their respective dates:
(a) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 2001;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2002;
(c) The Company's definitive proxy statement on Schedule 14A, filed
with the Commission on April 25, 2002; and
(d) The description of the Company's common stock contained in the
registration statement on Form 8-A dated May 27, 1997 (File No.
1-13045), including all amendments or reports filed for the purpose of
updating such description.
All documents subsequently filed by the Company pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended,
prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which deregisters all securities then
remaining unsold, shall be deemed to be incorporated by reference in this
registration statement and to be part hereof from the date of filing of such
documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this registration statement to the extent that a statement
herein, or in any subsequently filed document which also is or is deemed to be
incorporated by reference, modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or
superseded, to constitute a part of this registration statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
Subchapter D (Sections 1741 through 1750) of Chapter 17 of the
Pennsylvania Business Corporation Law of 1988, as amended (the "PBCL"), contains
provisions for mandatory and discretionary indemnification of a corporation's
directors, officers, employees and agents (collectively "Representatives") and
related matters.
Under Section 1741, subject to certain limitations, a corporation has
the power to indemnify directors, officers and other Representatives under
certain prescribed circumstances against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
in connection with a threatened, pending or completed action or proceeding,
whether civil, criminal, administrative or investigative, to which any of them
is a party or threatened to be made party by reason of he or she or she being a
Representative of the corporation or serving at the request of the corporation
as a Representative of another corporation, partnership, joint venture, trust or
other enterprise, 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, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The termination of any action
or proceeding by judgment, order or settlement or conviction upon a plea of nolo
contendere shall not itself create a presumption that the Representative did not
act in good faith and in a manner he or she reasonably believes to be in, or not
opposed to, the best interests of the corporation, and with respect to any
criminal proceeding, has reasonable cause to believe that his or her conduct was
unlawful.
Section 1742 provides for indemnification with respect to derivative
and corporate actions similar to that provided by Section 1741. However,
indemnification is not provided under Section 1742 in respect of any claim,
issue or matter as to which a Representative has been adjudged to be liable to
the corporation unless and only to the extent that the proper court determines
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, a Representative is fairly and reasonably
entitled to indemnity for the expenses that the court deems proper.
Section 1743 provides that indemnification against expenses actually
and reasonably incurred is mandatory to the extent that a Representative has
been successful on the merits or otherwise in defense of any such action or
proceeding referred to in Section 1741 or 1742.
Section 1744 provides that unless ordered by a court, any
indemnification under Section 1741 or 1742 shall be made by the corporation as
authorized in the specific case upon a determination that indemnification of a
Representative is proper because the Representative met the applicable standard
of conduct, and such determination will be made by the board of directors by a
majority vote of a quorum of directors not parties to the action or proceeding;
if a
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quorum is not obtainable or is obtainable and a majority of disinterested
directors so directs, by independent legal counsel in a written opinion; or by
the shareholders.
Section 1745 provides that expenses incurred by a Representative in
defending any action or proceeding referred to in Subchapter D of Chapter 17 of
the PBCL may be paid by the corporation in advance of the final disposition of
such action or proceeding upon receipt of any undertaking by or on behalf of the
Representative to repay such amount if it shall ultimately be determined that he
or she is not entitled to be indemnified by the corporation.
Section 1746 provides generally that, except in any case where the act
or failure to act giving rise to the claim for indemnification is determined by
a court to have constituted willful misconduct or recklessness, the
indemnification and advancement of expenses provided by Subchapter D of Chapter
17 of the PBCL shall not be deemed exclusive of any other rights to which a
Representative seeking indemnification or advancement of expenses may be
entitled under any bylaw, agreement, vote of shareholders or disinterested
directors or otherwise, both as to action in his or her official capacity and as
to action in another capacity while holding that office.
Section 1747 grants a corporation the power to purchase and maintain
insurance on behalf of any Representative against any liability incurred by him
or her in his or her capacity as a Representative, whether or not the
corporation would have the power to indemnify him against that liability under
Subchapter D of Chapter 17 of the PBCL.
Section 1748 and 1749 apply the indemnification and advancement of
expenses provisions contained in Subchapter D of Chapter 17 of the PBCL to
successor corporations resulting from consolidation, merger or division and to
service as a representative of a corporation with respect to an employee benefit
plan.
Section 7.2 of the Company's bylaws provides indemnification to
directors and officers for all actions taken by them and for all failures to
take action to the fullest extent permitted by Pennsylvania law against all
expense, liability and loss reasonably incurred or suffered by them in
connection with any threatened, pending or completed action, suit or proceeding
(including, without limitation, an action, suit or proceeding by or in the right
of the Company), whether civil, criminal, administrative, investigative or
through arbitration. Section 7.2 also permits the Company, by action of its
board of directors, to indemnify officers, employees and other persons to the
same extent as directors. Amendments, repeals or modifications of Section 7.2
can only be prospective and such changes require the unanimous vote of all of
the directors then serving or the affirmative vote of the holders of a majority
of the outstanding shares of stock of the Company entitled to vote in elections
of directors. Section 7.2 further permits the Company to maintain insurance, at
its expense, for the benefit of any person on behalf of whom insurance is
permitted to be purchased by Pennsylvania law against any such expenses,
liability or loss, whether or not the Company would have the power to indemnify
such person against such expense, liability or loss under Pennsylvania or other
law.
Pursuant to a certain employment agreement, dated February 1, 2000,
between the Company and J. Peter Pierce, a director of the Company, Mr. Pierce
received specific indemnification rights. In addition to those rights he holds
generally as a director pursuant to our
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bylaws, Mr. Pierce is entitled (i) to obtain an advance of all costs and
expenses incurred in connection with any proceeding giving rise to a potential
indemnification claim within twenty (20) days of receipt by the Company of a
request for such amounts, and (ii) to indemnification if in fact he meets the
applicable standard of conduct, without regard to any determination by the
Company (whether through the board, the shareholders, independent legal counsel
or other party) regarding such conduct. Mr. Pierce's written consent, which may
not be unreasonably withheld, is required before the Company may settle any
proceeding or claim which would impose any penalty or limitation on Mr. Pierce.
Item 7. Exemption from Registration Claimed.
Not Applicable.
Item 8. Exhibits.
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
5.1 Opinion of Sullivan & Worcester LLP.*
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP.*
23.1 Consent of Sullivan & Worcester LLP (contained in the opinion
of Sullivan & Worcester LLP filed herewith as Exhibit 5.1).
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP (contained
in the opinion of Ballard Spahr Andrews & Ingersoll, LLP filed
herewith as Exhibit 5.2).
23.3 Consent of Arthur Andersen LLP (Iron Mountain Incorporated).*
23.4 Consent of RSM Robson Rhodes (Iron Mountain Europe Limited
(f/k/a Britannia Data Management Limited)).*
24 Powers of Attorney (included in the signature page to this
registration statement).
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* filed herewith
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
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(ii) To reflect in the prospectus any facts or events
arising after the effective date of the registration
statement (or the most recent post-effective
amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the
information set forth in 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 end of the estimated maximum
offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule
424(b) under the Securities Act of 1933 if, in the
aggregate, the changes in volume and price represent
no more than a 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement; and
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in
this registration statement or any material change to
such information in this registration statement;
provided, however, that subparagraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in the periodic reports
filed with or furnished to the Commission by the Company pursuant to
Section 13 or Section 15(d) of the Exchange Act of 1934, that are
incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned registrant hereby further undertakes that, for the
purposes of determining any liability under the Securities Act of 1933,
each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act of 1934 (and, where applicable, each
filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Exchange Act of 1934) 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.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described under
Item 6 of this registration statement, or otherwise, the registrant has
been advised that in the opinion of the Commission such indemnification
is against public policy as expressed in the Securities Act of 1933 and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
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the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Company
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement on Form S-8 to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Boston, Commonwealth of Massachusetts, on the
24th day of May, 2002.
IRON MOUNTAIN INCORPORATED
By: /s/ John F. Kenny, Jr.
John F. Kenny, Jr.
Executive Vice President
Chief Financial Officer and Director
Pursuant to the requirements of the Securities Act of 1933, this
registration statement on Form S-8 has been signed below by the following
persons in the capacities and on the dates indicated. The undersigned officers
and directors of the Company hereby severally constitute and appoint C. Richard
Reese and John F. Kenny, Jr., and each of them acting singly, our true and
lawful attorneys to sign for us and in our names in the capacities indicated
below any and all amendments or supplements, whether pre-effective or
post-effective, to this registration statement on Form S-8 (including, without
limitation, any registration statement and post-effective amendment thereto
filed pursuant to Rule 462(b) under the Securities Act of 1933) and to file the
same, with exhibits thereto and other documents in connection therewith, with
the Commission, granting unto each of said attorneys, acting singly, full power
and authority to do and perform each and every act and thing requisite or
necessary to be done in and about the premises, as fully to all intents and
purposes as he or she might or could do in person, hereby ratifying and
confirming our signatures to said amendments to this registration statement
signed by our said attorneys and all else that said attorneys may lawfully do
and cause to be done by virtue hereof.
Signature Title Date
/s/ C. Richard Reese Chairman, Chief Executive Officer, May 24, 2002
C. Richard Reese President and Director
/s/ John F. Kenny, Jr. Executive Vice President, Chief May 24, 2002
John F. Kenny, Jr. Financial Officer and Director
/s/ Clarke H. Bailey Director May 24, 2002
Clarke H. Bailey
/s/ Constantin R. Boden Director May 24, 2002
Constantin R. Boden
/s/ Kent P. Dauten Director May 24, 2002
Kent P. Dauten
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/s/ Eugene B. Doggett Director May 24, 2002
Eugene B. Doggett
_____________________ Director
B. Thomas Golisano
/s/ Arthur D. Little Director May 24, 2002
Arthur D. Little
/s/ J. Peter Pierce Director May 24, 2002
J. Peter Pierce
/s/ Vincent J. Ryan Director May 24, 2002
Vincent J. Ryan
/s/ Jean A. Bua Vice President and Corporate May 24, 2002
Jean A. Bua Controller
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