As filed with the Securities and Exchange Commission on May 22, 2003
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
IRON MOUNTAIN INCORPORATED Pennsylvania 23-2588479
IM CAPITAL TRUST I Delaware 32-6001073
(Exact name of registrant as specified in (State or other jurisdiction (I.R.S. Employer
its charter) of incorporation or organization) Identification No.)
745 Atlantic Avenue, Boston, Massachusetts 02111, (617) 535-4766
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
C. RICHARD REESE Copy to:
Chairman of the Board of Directors and Chief WILLIAM J. CURRY, ESQ.
Executive Officer Sullivan & Worcester LLP
745 Atlantic Avenue One Post Office Square
Boston, Massachusetts 02111 Boston, Massachusetts 02109
(617) 535-4766 (617) 338-2800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement as determined in
light of market conditions and other factors.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /X/
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(c)
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 delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
CALCULATION OF REGISTRATION FEE
=====================================================================================================================
Proposed Maximum Proposed Maximum
Title of Each Class of Amount to be Offering Price Per Aggregate Offering Amount of
Securities to be Registered(1) Registered(2) Unit(2)(3) Price(1)(2)(3)(4) Registration Fee
- ---------------------------------------------------------------------------------------------------------------------
Debt Securities of Iron
Mountain(5)(9)
- ---------------------------------------------------------------------------------------------------------------------
Common Stock, $0.01 par value
per share, of Iron
Mountain(6)(9)
- ---------------------------------------------------------------------------------------------------------------------
Preferred Stock, $0.01 par
value per share, of Iron
Mountain(7)(9)
- ---------------------------------------------------------------------------------------------------------------------
Depositary Shares Representing
Preferred Stock of Iron
Mountain(8)(9)
- ---------------------------------------------------------------------------------------------------------------------
Warrants of Iron Mountain(10)
- ---------------------------------------------------------------------------------------------------------------------
Stock Purchase Contracts of
Iron Mountain(11)
- ---------------------------------------------------------------------------------------------------------------------
Stock Purchase Units of Iron
Mountain(12)
- ---------------------------------------------------------------------------------------------------------------------
Trust Preferred Securities of
IM Capital Trust I(13)
- ---------------------------------------------------------------------------------------------------------------------
Guarantees of Trust Preferred
Securities of IM Capital Trust
I by Iron Mountain(14)
- ---------------------------------------------------------------------------------------------------------------------
Guarantees of Debt Securities
of Iron Mountain(15)
=====================================================================================================================
Total $412,000,000(1)(16) 100% $412,000,000(1)(16) $33,331(17)
=====================================================================================================================
(1) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to the prospectus contained in this
registration statement exceed $500,000,000 or the equivalent thereof in
one or more foreign currencies, foreign currency units or composite
currencies. The aggregate amount of common stock of Iron Mountain
registered hereunder is further limited to that which is permissible under
Rule 415(a)(4) under the Securities Act of 1933, as amended. The
securities registered hereunder may be sold separately, together or as
units with other securities registered hereunder. There are also being
registered hereunder contracts that may be issued by the registrants under
which the counterparty may be required to purchase or sell the other
securities registered hereunder. These contracts would be issued together
with securities registered hereunder. There are also being registered
hereunder an indeterminate principal amount of the securities as may be
issuable upon conversion or exchange of debt securities, preferred stock
or warrants or pursuant to antidilution provisions thereof. There are also
being registered an indeterminate principal amount of guarantees of debt
securities by the Guarantors (as defined herein).
(2) Not required to be included in accordance with General Instruction II.D.
of Form S-3 under the Securities Act of 1933.
(3) The proposed maximum offering price per unit and the aggregate offering
price per class of security will be determined from time to time by Iron
Mountain in connection with the issuance by the registrants of the
securities registered hereunder.
(4) Estimated solely for purposes of determining the registration fee pursuant
to Rule 457(o) under the Securities Act of 1933.
(5) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of debt securities of Iron Mountain as may be sold,
from time to time. If any debt securities are issued at an original issue
discount, then the offering price shall be in such greater principal
amount as shall not result in an aggregate initial offering price
exceeding $500,000,000 or the equivalent thereof in one or more foreign
currencies, foreign currency units or composite currencies. Debt
securities may be issued and sold to IM Capital Trust I in which event
such debt securities may later be distributed to the holders of trust
preferred securities of IM Capital Trust I in certain circumstances
including upon a dissolution of IM Capital Trust I and the distribution of
its assets.
(6) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of common stock of
Iron Mountain as may be sold from time to time.
(7) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of preferred stock of Iron Mountain as may be sold
from time to time.
(8) Subject to Note (1) above there is being registered hereunder an
indeterminate amount of depositary shares representing preferred stock of
Iron Mountain as may be sold from time to time.
(9) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of debt securities, common stock, preferred stock and
depositary shares of Iron Mountain, as shall be issuable upon conversion
or redemption of debt securities, common stock, preferred stock or
depositary shares of Iron Mountain, as the case may be, or upon the
exercise of warrants or upon settlement of the stock purchase contracts of
Iron Mountain registered hereunder.
(10) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of warrants of Iron Mountain, representing rights to
purchase certain of the debt securities, common stock, preferred stock or
depositary shares of Iron Mountain registered hereunder.
(11) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of stock purchase contracts of Iron Mountain as may
be sold from time to time.
(12) Subject to Note (1) above, there is being registered hereunder an
indeterminate number of stock purchase units of Iron Mountain as may be
sold from time to time. Each stock purchase unit consists of (a) a stock
purchase contract, under which the holder, upon settlement, will purchase
an indeterminate number of shares of common stock of Iron Mountain and (b)
a beneficial interest in either trust preferred securities of IM Capital
Trust I or debt obligations of third parties, including U.S. treasury
securities. Each beneficial interest will be pledged to secure the
obligation of such holder to purchase such shares of common stock. No
separate consideration will be received for the stock purchase contracts.
(13) Subject to Note (1) above, there is being registered hereunder an
indeterminate amount of trust preferred securities of IM Capital Trust I
as may be sold from time to time.
(14) Subject to Note (1) above, there is being registered hereunder all
guarantees and other obligations that Iron Mountain may have with respect
to trust preferred securities that may be issued by IM Capital Trust I. No
separate consideration will be received for the guarantees or any other
such obligations.
(15) Subject to Note (1) above, there is being registered hereunder all
guarantees and other obligations that certain of Iron Mountain's
subsidiaries may have with respect to debt securities that may be issued
by Iron Mountain. No separate consideration will be received for the
guarantees or any other such obligations.
(16) Pursuant to Rule 429 under the Securities Act of 1933, in addition to the
$412,000,000 aggregate amount of securities being registered under this
registration statement, the combined prospectuses contained herein will
also relate to $88,000,000 aggregate amount of securities previously
registered under Iron Mountain's registration statement on Form S-3
(Registration No. 333-75068), initially filed on December 13, 2001, as
amended by Amendment No. 1 filed on February 11, 2002, and remaining
unsold, for which a registration fee in the amount of $8,096 was paid.
(17) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, and not including the filing fee of $8,096
previously paid in respect of $88,000,000 aggregate amount of unsold
securities being carried forward from Iron Mountain's registration
statement on Form S-3 (Registration No. 333-75068) pursuant to Rule 429.
The registrants hereby amend this registration statement on such date or
dates as may be necessary to delay its effective date until the registrants
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Securities and Exchange Commission, acting
pursuant to said Section 8(a), may determine.
PURSUANT TO RULE 429(A) UNDER THE SECURITIES ACT OF 1933, THE PROSPECTUSES
CONTAINED IN THIS REGISTRATION STATEMENT ARE COMBINED PROSPECTUSES AND RELATE TO
SECURITIES REGISTERED UNDER THIS REGISTRATION STATEMENT AND THE SECURITIES
REGISTERED AND REMAINING UNSOLD UNDER IRON MOUNTAIN'S
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-75068), INITIALLY FILED ON
DECEMBER 13, 2001, AS AMENDED BY AMENDMENT NO. 1 FILED ON FEBRUARY 11, 2002, AND
DECLARED EFFECTIVE ON FEBRUARY 11, 2002. PURSUANT TO RULE 429(B) THIS
REGISTRATION STATEMENT, WHICH IS A NEW REGISTRATION STATEMENT, SHALL ACT, UPON
EFFECTIVENESS, AS A POST-EFFECTIVE AMENDMENT NO. 1 TO IRON MOUNTAIN'S
REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-75068). IN THE EVENT THAT
SECURITIES PREVIOUSLY REGISTERED UNDER IRON MOUNTAIN'S REGISTRATION STATEMENT ON
FORM S-3 (FILE NO. 333-75068) ARE OFFERED AND SOLD PRIOR TO THE EFFECTIVE DATE
OF THIS REGISTRATION STATEMENT, THE AMOUNT OF SUCH PREVIOUSLY REGISTERED
SECURITIES SO SOLD WILL NOT BE INCLUDED IN THE PROSPECTUSES HEREUNDER.
--------------
EXPLANATORY NOTE
This registration statement consists of two separate prospectuses
covering:
(1) debt securities, guarantees, common stock, preferred stock,
depositary shares, warrants, stock purchase contracts and stock purchase units
of Iron Mountain and trust preferred securities of IM Capital Trust I, and
guarantees thereof by Iron Mountain, to be offered from time to time by the
registrants; and
(2) common stock of Iron Mountain to be issued under a direct stock
purchase plan of Iron Mountain.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
Subject to Completion
Preliminary Prospectus Dated May 22, 2003
$500,000,000
Iron Mountain Incorporated
Debt Securities, Preferred Stock, Depositary Shares,
Common Stock and Warrants
----------------------
We may from time to time offer:
o debt securities;
o shares of our preferred stock;
o fractional shares of our preferred stock in the form of depositary
shares;
o shares of our common stock;
o warrants to purchase any of these securities; or
o stock purchase contracts.
The securities we offer will have an aggregate public offering price of up
to $500,000,000. These securities may be offered and sold separately or together
in units with other securities described in this prospectus.
In connection with the debt securities, substantially all of our present
and future wholly owned domestic subsidiaries may, on a joint and several basis,
offer full and unconditional guarantees of our obligations under the debt
securities.
IM Capital Trust I may, from time to time, offer trust preferred securities
which will be fully and unconditionally guaranteed by us. Our guarantees may be
senior or subordinated. The trust preferred securities may be offered and sold
separately or together in units with other securities described in this
prospectus.
We and IM Capital Trust I will indicate the particular securities we offer
and their specific terms in a supplement to this prospectus. In each case we
would describe the type and amount of securities we are offering, the initial
public offering price and the other terms of the offering.
Our common stock is listed on the New York Stock Exchange under the symbol
"IRM." We will make applications to list any shares of common stock sold
pursuant to a supplement to this prospectus on the NYSE. We have not determined
whether we will list any of the other securities we may offer on any exchange or
over-the-counter market. If we decide to seek listing of any securities, the
supplement will disclose the exchange or market.
Investing in our securities involves risks. See "Risk Factors" beginning on
page 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
Our and IM Capital Trust I's principal executive office is 745 Atlantic
Avenue, Boston, Massachusetts 02111 and our and IM Capital Trust I's telephone
number is (617) 535-4766.
The date of this prospectus is ___________ 2003.
TABLE OF CONTENTS
Page
About This Prospectus...................................................... (i)
Cautionary Note Regarding Forward-Looking Statements....................... (ii)
Our Company................................................................ 1
IM Capital Trust........................................................... 1
Risk Factors............................................................... 2
Ratio of Earnings to Fixed Charges......................................... 7
Use of Proceeds............................................................ 8
Description of Our Debt Securities......................................... 8
Description of Our Capital Stock........................................... 15
Description of Our Depositary Shares....................................... 17
Description of Our Warrants................................................ 21
Description of the Stock Purchase Contracts and the Stock Purchase Units... 22
Description of the Trust Preferred Securities.............................. 22
Description of the Trust Preferred Securities Guarantee.................... 24
Relationship Among the Debt Securities, the Trust Preferred Securities
and the Trust Preferred Securities Guarantee........................ 27
Description of Certain Provisions of Pennsylvania Law and Our
Articles of Incorporation and Bylaws................................ 28
Plan of Distribution....................................................... 30
Validity of the Offered Securities......................................... 31
Notice Regarding Arthur Andersen LLP....................................... 31
Experts.................................................................... 31
Where You Can Find More Information........................................ 32
Documents Incorporated By Reference........................................ 32
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement we filed with the
Securities and Exchange Commission, or the SEC, using a "shelf" registration
process. Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of proceeds of $500,000,000 or the equivalent denominated in foreign
currency. This prospectus provides you with a general description of the
securities we may offer. Each time we sell securities, we will provide a
prospectus supplement containing specific information about the terms of that
offering. The prospectus supplement may also add, update, or change information
contained in this prospectus. You should read both this prospectus and any
prospectus supplement, together with additional information described under the
heading "Where You Can Find More Information" and "Documents Incorporated By
Reference."
We have not included, or incorporated by reference, separate financial
statements of IM Capital Trust I in this prospectus. Neither we nor IM Capital
Trust I consider these financial statements material to holders of the trust
preferred securities because:
o IM Capital Trust is a special purpose entity;
o IM Capital Trust does not have any operating history or independent
operations; and
o IM Capital Trust is not engaged in, nor will it engage in, any
activity other than issuing trust preferred and trust common
securities, investing in and holding our debt securities and engaging
in related activities.
Furthermore, the combination of our obligations under our debt securities,
the associated indentures, IM Capital Trust's declaration of trust and our
related guarantees provide a full and unconditional guarantee of payments of
distributions and other amounts due on the trust preferred securities. In
addition, we do not expect that IM Capital Trust will file reports with the SEC
under the Securities Exchange Act of 1934, as amended.
(i)
You should rely only on the information incorporated by reference or
provided in this document and any prospectus supplement. Neither we nor IM
Capital Trust have authorized anyone else to provide you with different
information. Neither we nor IM Capital Trust are making an offer of these
securities in any jurisdiction where it is unlawful. If anyone provides you with
different or inconsistent information, you should not rely on it. You should not
assume that the information in this prospectus is accurate as of any date other
than the date on the front of this document.
References in this prospectus to the terms "we," "our" or "us" or other
similar terms mean Iron Mountain Incorporated and its consolidated subsidiaries,
unless we state otherwise or the context indicates otherwise. References in this
prospectus to "IM Capital Trust" mean IM Capital Trust I.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
We have made and incorporated by reference statements in this document that
constitute "forward-looking statements" as that term is defined in the federal
securities laws. These forward-looking statements concern our operations,
economic performance, goals, beliefs, strategies, objectives, plans, current
expectations and financial condition. The forward-looking statements are subject
to various known and unknown risks, uncertainties and other factors. When we use
words such as "believes," "expects," "anticipates," "estimates" or similar
expressions, we are making forward-looking statements.
Although we believe that our forward-looking statements are based on
reasonable assumptions, our expected results may not be achieved and actual
results may differ materially from our expectations. Important factors that
could cause actual results to differ from expectations include, among others,
those set forth below. For a more detailed discussion of some of these factors,
please read carefully the information under "Risk Factors" beginning on page 2.
o changes in customer preferences and demand for our services;
o changes in the price for our services relative to the cost of
providing such services;
o the cost and availability of financing for contemplated growth;
o our ability or inability to complete acquisitions on satisfactory
terms and to integrate acquired companies efficiently;
o in the various digital businesses on which we are embarking, capital
and technical requirements will be beyond our means, markets for our
services will be less robust than anticipated, or competition will be
more intense than anticipated;
o the possibility that business partners upon whom we depend for
technical assistance or management and acquisition expertise outside
the United States will not perform as anticipated;
o changes in the political and economic environments in the countries in
which our international subsidiaries operate; and
o other trends in competitive or economic conditions affecting our
financial condition or results of operations not presently
contemplated.
These cautionary statements should not be construed by you to be exhaustive
and they are made only as of the date of this prospectus. You should not rely
upon forward-looking statements except as statements of our present intentions
and of our present expectations, which may or may not occur. You should read
these cautionary statements as being applicable to all forward-looking
statements wherever they appear. We assume no obligation to update the
forward-looking statements or the reasons why actual results could differ from
those projected in the forward-looking statements to reflect events or
circumstances after the date hereof.
(ii)
OUR COMPANY
We are the leader in records and information management services. We are an
international, full-service provider of records and information management and
related services, enabling customers to outsource these functions. We have a
diversified customer base that includes more than half of the Fortune 500 and
numerous commercial, legal, banking, healthcare, accounting, insurance,
entertainment and government organizations. Our comprehensive solutions help
customers save money and manage risks associated with legal and regulatory
compliance, protection of vital assets, and business continuity challenges.
Our core business records management services include: records management
program development and implementation based on best-practices; secure,
cost-effective storage for all major media, including paper, which is the
dominant form of records storage, flexible retrieval access and retention of
records; digital archiving services for secure, legally compliant and
cost-effective long-term archiving of electronic records; secure shredding
services that ensure privacy and a secure chain of record custody; and
customized services for vital records, film and sound and regulated industries
such as healthcare and financial services.
Our off-site data protection services include: disaster recovery planning,
testing, impact analysis and consulting; secure, off-site vaulting of backup
tapes for fast and efficient data recovery in the event of a disaster, human
error or virus; managed, online data backup and recovery services for personal
computers and server data; and intellectual property escrow services to secure
source code and other proprietary information with a trusted, neutral third
party.
In addition to our core records management and off-site data protection
services, we sell storage materials, including cardboard boxes and magnetic
media, and provide consulting, facilities management, fulfillment and other
outsourcing services.
As of March 31, 2003, we provided services to over 150,000 customer
accounts in 82 markets in the United States and 47 markets outside of the United
States. We employ over 11,500 people and operate nearly 650 records management
facilities in the United States, Canada, Europe and Latin America.
IM CAPITAL TRUST
IM Capital Trust is a subsidiary of ours. IM Capital Trust was created
under the Delaware Statutory Trust Act and is governed by a declaration of
trust, as it may be amended and restated from time to time, among the trustees
of IM Capital Trust and us.
When IM Capital Trust issues its trust preferred securities, the holders of
the trust preferred securities will own all of the issued and outstanding trust
preferred securities of IM Capital Trust. We will acquire all of the issued and
outstanding trust common securities of IM Capital Trust, representing an
undivided beneficial interest in the assets of IM Capital Trust of at least 3%.
IM Capital Trust will exist primarily for the purposes of:
o issuing its trust preferred and trust common securities;
o investing the proceeds from the sale of its trust preferred and trust
common securities in our debt securities; and
o engaging in other activities only as are necessary or incidental to
issuing its securities and purchasing and holding our debt securities.
The debt securities IM Capital Trust purchases from us may be subordinated
debt securities or senior debt securities, and may be fully and unconditionally
guaranteed by substantially all of our present and future wholly owned domestic
subsidiaries. We will specify the type of debt security in a prospectus
supplement.
-1-
IM Capital Trust has three trustees. One of the trustees, referred to as
the regular trustee, is an individual who is an officer and employee of Iron
Mountain. Additional regular trustees may be appointed in the future. The second
trustee is The Bank of New York, which serves as the property trustee under the
declaration of trust for purposes of the Trust Indenture Act of 1939, as
amended. The third trustee is The Bank of New York (Delaware), which has its
principal place of business in the State of Delaware, and serves as the Delaware
trustee of IM Capital Trust.
The Bank of New York, acting in its capacity as guarantee trustee, will
hold for the benefit of the holders of trust preferred securities a trust
preferred securities guarantee, which will be separately qualified under the
Trust Indenture Act of 1939.
Unless otherwise provided in the applicable prospectus supplement, because
we will own all of the trust common securities of IM Capital Trust, we will have
the exclusive right to appoint, remove or replace trustees and to increase or
decrease the number of trustees. In most cases, there will be at least three
trustees. The term of IM Capital Trust will be described in the applicable
prospectus supplement, but it may dissolve earlier, as provided in IM Capital
Trust's declaration of trust, as it may be amended and restated from time to
time.
The rights of the holders of the trust preferred securities of IM Capital
Trust, including economic rights, rights to information and voting rights and
the duties and obligations of the trustees of IM Capital Trust, will be
contained in and governed by the declaration of trust of IM Capital Trust, as it
may be amended and restated from time to time, the Delaware Statutory Trust Act
and the Trust Indenture Act of 1939.
RISK FACTORS
You should consider carefully the following factors and other information
in this prospectus before deciding to invest in our securities.
Acquisition and International Expansion Risks
Failure to successfully integrate acquired operations could reduce our future
results of operations.
The success of any acquisition depends in part on our ability to integrate
the acquired company. The process of integrating acquired businesses may involve
unforeseen difficulties and may require a disproportionate amount of our
management's attention and our financial and other resources.
We can give no assurance that we will ultimately be able to effectively
integrate and manage the operations of any acquired business. Nor can we assure
you that we will be able to maintain or improve the historical financial
performance of Iron Mountain or our acquisitions. The failure to successfully
integrate these cultures, operating systems, procedures and information
technologies could have a material adverse effect on our results of operations.
Failure to achieve expected cost savings and unanticipated costs related to
integrating acquired companies could adversely affect our results of operations.
Our estimates of annual operating cost savings for acquired companies are a
function of the nature and timing of individual acquisition integration plans.
These savings result primarily from the elimination of redundant corporate
expenses and more efficient operations and utilization of real estate. However,
unanticipated future operating expenses or acquisition related expenses, or
other adverse developments, could reduce or delay realization of these cost
savings and materially affect our results of operations.
As a result, our operating results may fluctuate from quarter to quarter
due to the integration of current and future acquisitions. It is difficult to
precisely forecast the magnitude and timing of integration costs. These costs
may be material to the financial results of a given quarter. Therefore,
operating results for any fiscal quarter may not be indicative of the results
that may be achieved for any subsequent quarter or for a full fiscal year.
-2-
We may be unable to continue our international expansion.
Our growth strategy involves expanding operations into international
markets, and we expect to continue this expansion. Europe and Latin America have
been our primary areas of focus for international expansion. We have entered
into joint ventures and have acquired all or a majority of the equity in records
and information management services businesses operating in these areas and are
actively pursuing additional opportunities. This growth strategy involves risks.
We may be unable to pursue this strategy in the future. For example, we may be
unable to:
o identify suitable companies to acquire;
o complete acquisitions on satisfactory terms;
o incur additional debt necessary to acquire suitable companies if we
are unable to pay the purchase price out of working capital, common
stock or other equity securities; or
o enter into successful business arrangements for technical assistance
or management and acquisition expertise outside of the United States.
We also compete with other records and information management services
providers for companies to acquire. Some of our competitors may possess greater
financial and other resources than we do. If any such competitor were to devote
additional resources to such acquisition candidates or focus its strategy on our
international markets, our results of operations could be adversely affected.
Operational Risks
We face competition for customers.
We compete with our current and potential customers' internal records and
information management services capabilities. We can provide no assurance that
these organizations will begin or continue to use an outside company, such as
our company, for their future records and information management services needs
or that they will use us to provide these services. We also compete with
multiple records and information management services providers in all geographic
areas where we operate.
We may not be able to effectively expand our digital businesses.
We have implemented the early stages of our planned expansion into various
digital businesses. Our entrance into these markets poses certain unique risks.
For example, we may be unable to:
o raise the amount of capital necessary to effectively participate in
these businesses;
o develop, hire or otherwise obtain the necessary technical expertise;
o accurately predict the size of the markets for any of these services;
or
o compete effectively against other companies who possess greater
technical expertise, capital or other necessary resources.
In addition, the business partners upon whom we depend for technical and
management expertise, as well as the hardware and software products we need to
complement our services, may not perform as expected.
Our customers may shift from paper storage to alternative technologies that
require less physical space.
We derive most of our revenues from the storage of paper documents and
related services. This storage requires significant physical space. Alternative
storage technologies exist, many of which require significantly less space than
paper. These technologies include computer media, microform, CD-ROM and optical
disk. To date,
-3-
none of these technologies has replaced paper as the principal means for storing
information. However, we can provide no assurance that our customers will
continue to store most of their records in paper format. A significant shift by
our customers to storage of data through non-paper based technologies, whether
now existing or developed in the future, could adversely affect our business.
We may be subject to certain costs and potential liabilities associated with the
real estate required for our businesses.
Because our businesses are heavily dependent on real estate, we face
special risks attributable to the real estate we own or operate. Such risks
include:
o variable occupancy costs and difficulty locating suitable sites due to
fluctuations in the real estate market;
o uninsured losses or damage to our storage facilities due to an
inability to obtain full coverage on a cost-effective basis for some
casualties, such as earthquakes, or any coverage for certain losses,
such as losses from riots or terrorist activities;
o loss of our investment in, and anticipated profits and cash flow from,
damaged property that is uninsured;
o liability under certain environmental laws for the costs of
investigation and cleanup of contaminated real estate owned or leased
by us, whether or not we know of, or were responsible for, the
contamination, or the contamination occurred while we owned or leased
the property;
o third party claims resulting from the off-site migration of
contamination initiating on real estate that we own or operate, or
exposure to hazardous substances, including asbestos-containing
materials, located on our property; and
o an inability to sell, rent, mortgage or use contaminated real estate
owned or leased by us.
Some of our current and formerly owned or operated properties were
previously used for industrial or other purposes that involved the use, storage,
generation and/or disposal of hazardous substances and wastes and petroleum
products. In some instances these properties included the operation of
underground storage tanks. Although we have from time to time conducted limited
environmental investigations and remedial activities at some of our former and
current facilities, we have not undertaken an in-depth environmental review of
all of our properties. We therefore may be potentially liable for environmental
costs like those discussed above.
International operations may pose unique risks.
As of March 31, 2003, we provided services in 47 markets outside the United
States. As part of our growth strategy, we expect to continue to acquire records
and information management services businesses in foreign markets. International
operations are subject to numerous risks, including:
o the risk that the business partners upon whom we depend for technical
assistance or management and acquisition expertise outside of the
United States will not perform as expected;
o the impact of foreign government regulations;
o the volatility of certain foreign economies in which we operate;
o political uncertainties;
o differences in business practices; and
o foreign currency fluctuations.
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In particular, our net income can be significantly affected by fluctuations
in foreign currencies associated with the U.S. dollar denominated debt of some
of our foreign subsidiaries and certain intercompany balances between our
domestic entities and our foreign subsidiaries.
Indebtedness and Other Risks
Our substantial indebtedness could adversely affect our financial health.
We have substantial indebtedness, which could have important consequences
to you. The risks associated with our substantial indebtedness include:
o inability to adjust to adverse economic conditions;
o inability to fund future working capital, acquisitions, capital
expenditures and other general corporate requirements;
o limits on our flexibility in planning for, or reacting to, changes in
our business and the records and information management services
industry;
o limits on future borrowings under our existing or future credit
arrangements, which could affect our ability to pay our indebtedness
or to fund our other liquidity needs;
o inability to generate sufficient funds to cover required interest or
principal amortization payments; and
o restrictions on our ability to refinance our indebtedness on
commercially reasonably terms.
Our indebtedness may increase as we continue to borrow under existing and future
credit arrangements in order to finance future acquisitions and for general
corporate purposes, which would increase the associated risks.
Restrictive loan covenants may limit our ability to pursue our growth strategy.
Our credit facility and our indentures contain covenants restricting or
limiting our ability to, among other things:
o incur additional indebtedness;
o pay dividends or make other restricted payments;
o make asset dispositions;
o create or permit liens; and
o make capital expenditures and other investments.
These restrictions may adversely affect our ability to pursue our
acquisition and other growth strategies.
Certain provisions in our governing documents and indentures, and the
composition of our shareholders, might discourage or prevent third parties from
acquiring control of our outstanding capital stock.
Certain provisions of our articles of incorporation, our bylaws and
existing indentures might discourage or prevent a third party from acquiring
actual or potential control of us by:
o making it more difficult to consummate certain types of transactions
such as mergers, tender offers or proxy contests;
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o limiting shareholders' ability to quickly change the composition of
our board of directors due to our classified board of directors;
o allowing existing management to exercise significant control over our
affairs during periods where we are threatened by a change in control;
o allowing our board of directors to issue shares of preferred stock in
the future without further shareholder approval and with full
discretion as to terms, conditions, rights, privileges and
preferences; and
o requiring that we offer to purchase all or some of our outstanding
senior subordinated notes and other publicly issued notes in certain
circumstances that amount to a change of control under our indentures.
In addition, because relatively few large shareholders control a
significant percentage of our voting power, these shareholders may:
o prevent certain types of transactions involving an actual or potential
change of control of us, including transactions made at prices above
the prevailing market price of our common stock; and
o significantly affect the election of our directors who, in turn,
control our management and affairs.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our consolidated ratio of earnings to fixed
charges for the periods indicated (dollars in thousands):
Three Months Ended
Year Ended December 31, March 31,
--------------------------------------------------------
1998 1999 2000 2001 2002 2003
---- ---- ---- ---- ---- ----
Ratio of earnings to
fixed charges 1.1x 1.1x 0.9x(1) 1.0x(1) 1.7x 1.9x
- -------------------------------
(1) We reported a loss from continuing operations before provision for income
taxes and minority interest for the years ended December 31, 2000 and December
31, 2001 and we would have needed to generate additional income from operations
before provision for income taxes and minority interest of $18,032 and $8,131 to
cover our fixed charges of $154,975 and $177,032, respectively.
The ratios of earnings to fixed charges presented above were computed by
dividing our earnings by fixed charges. For this purpose, earnings have been
calculated by adding fixed charges to income (loss) from continuing operations
before provision for income taxes and minority interest. Fixed charges consist
of interest costs, whether expensed or capitalized, the interest component of
rental expense, if any, amortization of debt discounts and deferred financing
costs, whether expensed or capitalized.
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USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we intend to use the
net proceeds from the sale of the offered securities for general corporate
purposes, which may include acquisitions, investments and the repayment of
indebtedness outstanding at a particular time. Pending this utilization, the
proceeds from the sale of the offered securities will be invested in short-term,
dividend-paying or interest-bearing investment grade securities.
IM Capital Trust will use all net proceeds from the sale of its trust
preferred securities and its trust common securities to purchase our debt
securities.
DESCRIPTION OF OUR DEBT SECURITIES
The debt securities will be direct obligations of ours, which may be
secured or unsecured, and which may be senior or subordinated indebtedness. The
debt securities may be fully and unconditionally guaranteed on a secured or
unsecured, senior or subordinated basis, jointly and severally by substantially
all of our direct and indirect wholly owned domestic subsidiaries. The debt
securities will be issued under one or more indentures between us and a trustee.
Any indenture will be subject to, and governed by, the Trust Indenture Act of
1939. The statements made in this prospectus relating to any indentures and the
debt securities to be issued under the indentures are summaries of certain
anticipated provisions of the indentures and are not complete.
We have filed copies of the forms of indentures as exhibits to the
registration statement of which this prospectus is part and will file any final
indentures and supplemental indentures if we issue debt securities. You should
refer to those indentures for the complete terms of the debt securities. See
"Where You Can Find More Information." In addition, you should consult the
applicable prospectus supplement for particular terms of our debt securities.
General
We may issue debt securities that rank "senior," "senior subordinated" or
"subordinated." The debt securities that we refer to as "senior securities" will
be direct obligations of ours and will rank equally and ratably in right of
payment with other indebtedness of ours that is not subordinated. We may issue
debt securities that will be subordinated in right of payment to the prior
payment in full of senior indebtedness, as defined in the applicable prospectus
supplement, and may rank equally and ratably with our outstanding senior
subordinated indebtedness and any other senior subordinated indebtedness. We
refer to these as "senior subordinated securities." We may also issue debt
securities that may be subordinated in right of payment to the senior
subordinated securities. These would be "subordinated securities." We have filed
with the registration statement of which this prospectus is part three separate
forms of indenture, one each for the senior securities, the senior subordinated
securities and the subordinated securities.
We may issue the debt securities without limit as to aggregate principal
amount, in one or more series, in each case as we establish in one or more
supplemental indentures. We need not issue all debt securities of one series at
the same time. Unless we otherwise provide, we may reopen a series, without the
consent of the holders of such series, for issuances of additional securities of
that series.
We anticipate that any indenture will provide that we may, but need not,
designate more than one trustee under an indenture, each with respect to one or
more series of debt securities. Any trustee under any indenture may resign or be
removed with respect to one or more series of debt securities and we may appoint
a successor trustee to act with respect to that series.
The applicable prospectus supplement will describe the specific terms
relating to the series of debt securities we will offer, including, where
applicable, the following:
o the title and series designation and whether they are senior
securities, senior subordinated securities or subordinated securities;
o the aggregate principal amount of the securities;
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o the percentage of the principal amount at which we will issue the debt
securities and, if other than the principal amount of the debt
securities, the portion of the principal amount of the debt securities
payable upon maturity of the debt securities;
o if convertible, the initial conversion price, the conversion period
and any other terms governing such conversion;
o the stated maturity date;
o any fixed or variable interest rate or rates per annum;
o the place where principal, premium, if any, and interest will be
payable and where the debt securities can be surrendered for transfer,
exchange or conversion;
o the date from which interest may accrue and any interest payment
dates;
o any sinking fund requirements;
o any provisions for redemption, including the redemption price and any
remarketing arrangements;
o whether the securities are denominated or payable in U.S. dollars or a
foreign currency or units of two or more foreign currencies;
o the events of default and covenants of such securities, to the extent
different from or in addition to those described in this prospectus;
o whether we will issue the debt securities in certificated or
book-entry form;
o whether the debt securities will be in registered or bearer form and,
if in registered form, the denominations if other than in even
multiples of $1,000 and, if in bearer form, the denominations and
terms and conditions relating thereto;
o whether we will issue any of the debt securities in permanent global
form and, if so, the terms and conditions, if any, upon which
interests in the global security may be exchanged, in whole or in
part, for the individual debt securities represented by the global
security;
o the applicability, if any, of the defeasance and covenant defeasance
provisions described in this prospectus or any prospectus supplement;
o whether we will pay additional amounts on the securities in respect of
any tax, assessment or governmental charge and, if so, whether we will
have the option to redeem the debt securities instead of making this
payment;
o the subordination provisions, if any, relating to the debt securities;
o if the debt securities are to be issued upon the exercise of debt
warrants, the time, manner and place for them to be authenticated and
delivered;
o whether any of our subsidiaries will be bound by the terms of the
indenture, in particular any restrictive covenants;
o the provisions relating to any security provided for the debt
securities; and
o the provisions relating to any guarantee of the debt securities.
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We may issue debt securities at less than the principal amount payable upon
maturity. We refer to these securities as "original issue discount securities."
We may also issue debt securities over par from time to time. If material or
applicable, we will describe in the applicable prospectus supplement special
U.S. federal income tax, accounting and other considerations applicable to
original issue discount securities or debt securities issued over par.
Except as may be set forth in any prospectus supplement, an indenture will
not contain any other provisions that would limit our ability to incur
indebtedness or that would afford holders of the debt securities protection in
the event of a highly leveraged or similar transaction involving us or in the
event of a change of control. You should review carefully the applicable
prospectus supplement for information with respect to events of default and
covenants applicable to the securities being offered.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, we will
issue the debt securities of any series that are registered securities in
denominations that are even multiples of $1,000, other than global securities,
which may be of any denomination.
Unless otherwise specified in the applicable prospectus supplement, we will
pay the interest, principal and any premium at the corporate trust office of the
trustee. At our option, however, we may make payment of interest by check mailed
to the address of the person entitled to the payment as it appears in the
applicable register or by wire transfer of funds to that person at an account
maintained within the United States.
If we do not punctually pay or duly provide for interest on any interest
payment date, the defaulted interest will be paid either:
o to the person in whose name the debt security is registered at the
close of business on a special record date we will fix; or
o in any other lawful manner as the applicable indenture describes.
You may have your debt securities divided into more debt securities of
smaller denominations or combined into fewer debt securities of larger
denominations, as long as the total principal amount is not changed. We call
this an "exchange."
You may exchange or transfer debt securities at the office of the
applicable trustee. The trustee acts as our agent for registering debt
securities in the names of holders and transferring debt securities. We may
change this appointment to another entity or perform it ourselves. The entity
performing the role of maintaining the list of registered holders is called the
"registrar." It will also perform transfers.
You will not be required to pay a service charge to transfer or exchange
debt securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The registrar will
make the transfer or exchange only if it is satisfied with your proof of
ownership.
Merger, Consolidation or Sale of Assets
Under any indenture, we are generally permitted to consolidate or merge
with another company. We are also permitted to sell substantially all of our
assets to another company. However, we may not take any of these actions unless
all of the following conditions are met:
o If we merge out of existence or sell our assets, the other company must
be a corporation, partnership or other entity organized under the laws
of a State or the District of Columbia or under federal law. The other
company must agree to be legally responsible for the debt securities.
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o Immediately after the consolidation or merger or sale of assets we are
not in default on the debt securities. A default for this purpose would
include any event that would be an event of default without regard to
notice obligations or the length of time of the default.
Certain Covenants
Provision of Financial Information. We will deliver to the trustee a copy
of our annual report to shareholders, our reports on Forms 10-K, 10-Q and 8-K
and any other reports that we are required to file with the SEC pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934.
Additional Covenants. Any additional or different covenants, or
modifications to these covenants, with respect to any series of debt securities
will be set forth in the applicable prospectus supplement.
Events of Default and Related Matters
Events of Default. The term "event of default" means any of the following:
o we do not pay the principal or any premium on a debt security on its
due date;
o we do not pay interest on a debt security within 30 days of its due
date;
o we do not deposit any sinking fund payment on its due date;
o we fail to comply with any "change of control" covenant included in
the applicable indenture;
o we remain in breach of any other term of the applicable indenture for
60 days after we receive a notice of default stating we are in breach.
Either the trustee or the holders of 25% in principal amount of debt
securities of the affected series may send the notice;
o we default in the payment of any of our other indebtedness over a
specified amount that results in the acceleration of the maturity of
the indebtedness or constitutes a default in the payment of the
indebtedness at final maturity, but only if the indebtedness is not
discharged or the acceleration is not rescinded or annulled;
o we or one of our "significant subsidiaries" files for bankruptcy or
certain other events in bankruptcy, insolvency or reorganization
occur; and
o any other event of default, or modification of any of the foregoing
events of default, described in the applicable prospectus supplement
occurs.
The term "significant subsidiary" means each of our significant subsidiaries (as
defined in Regulation S-X promulgated under the Securities Act of 1933).
Remedies If an Event of Default Occurs. If an event of default has occurred
and has not been cured, the trustee or the holders of at least 25% in principal
amount of the debt securities of the affected series may declare the entire
principal amount of all the debt securities of that series to be due and
immediately payable. We call this a "declaration of acceleration of maturity."
If an event of default occurs because of certain events in bankruptcy,
insolvency or reorganization, the principal amount of all the debt securities of
that series will be automatically accelerated, without any action by the trustee
or any holder. At any time after the trustee or the holders have accelerated any
series of debt securities, the holders of at least a majority in principal
amount of the debt securities of the affected series may, under certain
circumstances, rescind and annul such acceleration.
The trustee will be required to give notice to the holders of debt
securities within 90 days of a default of which the trustee has knowledge under
the applicable indenture unless the default has been cured or waived. The
trustee may withhold notice to the holders of any series of debt securities of
any default with respect to that series, except a
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default in the payment of the principal of or interest on any debt security of
that series, if specified responsible officers of the trustee in good faith
determine that withholding the notice is in the interest of the holders.
Except in cases of default, where the trustee has some special duties, the
trustee is not required to take any action under the applicable indenture at the
request of any holders unless the holders offer the trustee reasonable
protection from expenses and liability. We refer to this as an "indemnity." If
reasonable indemnity is provided, the holders of a majority in principal amount
of the outstanding securities of the relevant series may direct the time, method
and place of conducting any lawsuit or other formal legal action seeking any
remedy available to the trustee. These majority holders may also direct the
trustee in performing any other action under the applicable indenture, subject
to certain limitations.
Before you bypass the trustee and bring your own lawsuit or other formal
legal action or take other steps to enforce your rights or protect your
interests relating to the debt securities, the following must occur:
o you must give the trustee written notice that an event of default has
occurred and remains uncured;
o the holders of at least 25% in principal amount of all outstanding
securities of the relevant series must make a written request that the
trustee take action because of the default, and must offer indemnity
satisfactory to the trustee against the costs, expenses and other
liabilities of taking that action;
o the trustee must have not taken action for 60 days after receipt of
the above notice, request and offer of indemnity; and
o the trustee does not receive direction contrary to the holders'
written request, within 60 days following receipt of the holders'
written request, from holders of a majority in principal amount of the
outstanding securities of that series.
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your security after its due date.
Every year we will furnish to the trustee a written statement by certain of
our officers certifying that to their knowledge we are in compliance with the
applicable indenture and the debt securities, or else specifying any default.
Modification of an Indenture
There are three types of changes we can make to the indentures and the debt
securities:
Changes Requiring Your Approval. First, there are changes we cannot make to
your debt securities without your specific approval. The following is a list of
those types of changes:
o reduce the principal amount of debt securities whose holders must
consent to an amendment, supplement or waiver;
o reduce the principal of or change the fixed maturity of any security
or change any of the redemption provisions in a manner adverse to you;
o reduce the rate of or change the time for payment of interest on any
debt security;
o waive a default in the payment of principal of or premium, if any, or
interest on any debt security (except a rescission of acceleration of
such debt securities by the holders of at least a majority in
aggregate principal amount of the then outstanding debt securities and
a waiver of the payment default that resulted from such acceleration);
o make any debt security payable in money other than that stated in such
debt security;
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o make any change in the provisions of the indenture relating to waivers
of past defaults or your right to receive payments of principal of or
premium, if any, or interest on the debt securities;
o except under certain circumstances described in the applicable
prospectus supplement, waive a redemption payment with respect to any
debt security;
o if the debt securities are guaranteed, other than as described in the
applicable prospectus supplement, release any guarantor from its
obligations under its subsidiary guarantee, or change any subsidiary
guarantee in any manner that would materially adversely affect you; or
o make any change in the foregoing amendment and waiver provisions.
Changes Requiring a Majority Vote. The second type of change to an
indenture and the debt securities is the kind that requires a vote in favor by
holders of a majority of the principal amount of the particular series of debt
securities affected. Most changes fall into this category, except for clarifying
changes and certain other changes that would not materially adversely affect
holders of the debt securities. We require the same vote to obtain a waiver of a
past default. However, we cannot obtain a waiver of a payment default or any
other aspect of an indenture or the debt securities listed under "--Changes
Requiring Your Approval" unless we obtain your individual consent to the waiver.
Changes Not Requiring Approval. The third type of change does not require
any vote by holders of debt securities. This type is limited to clarifications
and certain other changes that would not materially adversely affect holders of
the debt securities.
Further Details Concerning Voting. Debt securities are not considered
outstanding, and therefore not eligible to vote, if we have deposited or set
aside in trust for you money for their payment or redemption or if we or one of
our affiliates own them. Debt securities are also not eligible to vote if they
have been fully defeased as described immediately below under "--Defeasance and
Covenant Defeasance--Full Defeasance." For original issue discount securities,
we will use the principal amount that would be due and payable on the voting
date if the maturity of the debt securities were accelerated to that date
because of a default.
Defeasance and Covenant Defeasance
Full Defeasance. We can, under particular circumstances, effect a full
defeasance of your series of debt securities. By this we mean we can legally
release ourselves from any payment or other obligations on the debt securities
if we deliver certain certificates and opinions to the trustee and put in place
the following arrangements to repay you:
o We must deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the
debt securities on their various due dates. If the debt securities are
denominated in a foreign currency, then we may deposit foreign
government notes or bonds.
o The current federal tax law must be changed or an Internal Revenue
Service ruling must be issued permitting the above deposit without
causing you to be taxed on the debt securities any differently than if
we did not make the deposit and just repaid the debt securities
ourselves. Under current federal tax law, the deposit and our legal
release from the debt securities would be treated as though we took
back your debt securities and gave you your share of the cash and
notes or bonds deposited in trust. In that event, you could recognize
gain or loss on the debt securities you give back to us.
o We must deliver to the trustee a legal opinion confirming the tax law
change described above.
o No default shall be in effect on the date of deposit or, insofar as
bankruptcy and insolvency defaults are concerned, at any time in the
period ending on the 91st day after the date of deposit (or greater
period of
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time in which any such deposit of trust funds may remain subject to
bankruptcy law insofar as those apply to the deposit by us).
o The full defeasance must not result in a breach or violation of, or
constitute a default under, any material agreement or instrument
(other than the applicable indenture) to which we are a party or by
which we are bound.
o We must deliver to the trustee an opinion of counsel to the effect
that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally
and various other opinions of counsel and officers' certificates.
If we did accomplish a full defeasance, you would have to rely solely on
the trust deposit for repayment on the debt securities. You could not look to us
for repayment in the unlikely event of any shortfall. The trust deposit would,
however, most likely be protected from claims of our lenders and other creditors
if we ever became bankrupt or insolvent. You would also be released from any
subordination provisions.
Notwithstanding the foregoing, the following rights and obligations shall
survive full defeasance:
o your rights to receive payments from the trust when payments are due;
o our obligations relating to registration and transfer of securities
and lost or mutilated certificates;
o our obligations to maintain a payment office and to hold moneys for
payment in trust;
o the rights, powers, trusts, duties and immunities of the trustee, and
our obligations in connection therewith; and
o the provisions of the indenture relating to defeasance.
Covenant Defeasance. Under current federal tax law, we can make the same
type of deposit described above and be released from some of the restrictive
covenants in the debt securities. This is called "covenant defeasance." In that
event, you would lose the protection of those restrictive covenants but would
gain the protection of having money and securities set aside in trust to repay
the debt securities and you would be released from any subordination provisions.
In order to achieve covenant defeasance, we must do certain things, including
the following:
o we must deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money and U.S.
government or U.S. government agency notes or bonds (or, in the case
of debt securities denominated in a foreign currency, foreign
government notes or bonds) that will generate enough cash to make
interest, principal and any other payments on the debt securities on
their various due dates;
o we must deliver to the trustee a legal opinion confirming that under
current federal tax law we may make the above deposit without causing
you to be taxed on the debt securities any differently than if we did
not make the deposit and just repaid the debt securities ourselves;
o no default shall be in effect on the date of deposit or, insofar as
bankruptcy and insolvency defaults are concerned, at any time in the
period ending on the 91st day after the date of deposit (or greater
period of time in which any such deposit of trust funds may remain
subject to bankruptcy law insofar as those apply to the deposit by
us);
o the covenant defeasance must not result in a breach or violation of,
or constitute a default under, any material agreement or instrument
(other than the applicable indenture) to which we are a party or by
which we are bound; and
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o we must deliver to the trustee an opinion of counsel to the effect
that after the 91st day following the deposit, the trust funds will
not be subject to the effect of any applicable bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally
and various other opinions of counsel and officers' certificates.
If we accomplish covenant defeasance, we will be released from certain
covenants that we will describe in the applicable prospectus supplement. If we
accomplish covenant defeasance, you can still look to us for repayment of the
debt securities if a shortfall in the trust deposit occurred. If one of the
remaining events of default occurs, for example, our bankruptcy, and the debt
securities become immediately due and payable, there may be a shortfall.
Depending on the event causing the default, you may not be able to obtain
payment of the shortfall.
Subordination
We will set forth in the applicable prospectus supplement the terms and
conditions, if any, upon which any series of senior subordinated securities or
subordinated securities is subordinated to debt securities of another series or
to other indebtedness of ours. The terms will include a description of:
o the indebtedness ranking senior to the debt securities being offered;
o the restrictions, if any, on payments to the holders of the debt
securities being offered while a default with respect to the senior
indebtedness is continuing;
o the restrictions, if any, on payments to the holders of the debt
securities being offered following an event of default; and
o provisions requiring holders of the debt securities being offered to
remit some payments to holders of senior indebtedness.
Conversion Rights
The terms and conditions, if any, upon which the debt securities are
convertible into shares of our common or preferred stock will be set forth in
the prospectus supplement relating thereto. Such terms will include whether the
debt securities are convertible into shares of our common or preferred stock,
the conversion price (or manner of calculation thereof), the conversion period,
provisions as to whether conversion will be at the option of the holders, the
events requiring an adjustment of the conversion price and provisions affecting
conversion in the event of the redemption of such debt securities and any
restrictions on conversion.
Global Securities
If so set forth in the applicable prospectus supplement, we may issue the
debt securities of a series, in whole or in part, in the form of one or more
global securities that will be deposited with a depositary identified in the
prospectus supplement. We may issue global securities in either registered or
bearer form and in either temporary or permanent form. The specific terms of the
depositary arrangement with respect to any series of debt securities will be
described in the prospectus supplement.
DESCRIPTION OF OUR CAPITAL STOCK
The description below summarizes the more important terms of our capital
stock. We have previously filed with the SEC copies of our articles of
incorporation and bylaws, as amended. See "Where You Can Find More Information."
You should refer to those documents for the complete terms of our capital stock.
This summary is subject to and qualified by reference to the description of the
particular terms of your securities described in the applicable prospectus
supplement.
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General
Our authorized capital stock consists of 150,000,000 shares of common
stock, par value $.01 per share, and 10,000,000 shares of preferred stock, par
value $.01 per share.
Preferred Stock
We are authorized to issue up to 10,000,000 shares of preferred stock,
$0.01 par value per share.
This section describes the general terms and provisions of our preferred
stock that we may offer from time to time. The applicable prospectus supplement
will describe the specific terms of the shares of preferred stock offered
through that prospectus supplement. We will file a copy of the statement with
respect to shares that contains the terms of each new series of preferred stock
with the SEC each time we issue a new series of preferred stock, and these
statements with respect to shares will be incorporated by reference into the
registration statement of which this prospectus is a part. Each statement with
respect to shares will establish the number of shares included in a designated
series and fix the designation, powers, privileges, preferences and rights of
the shares of each series as well as any applicable qualifications, limitations
or restrictions. A holder of our preferred stock should refer to the applicable
statement with respect to shares, our articles of incorporation and the
applicable prospectus supplement for more specific information.
Our board of directors has been authorized, subject to limitations provided
in our articles of incorporation, to provide for the issuance of shares of our
preferred stock in multiple series. No shares of our preferred stock are
currently outstanding.
With respect to each series of our preferred stock, our board of directors
has the authority to fix the following terms:
o the designation of the series;
o the number of shares within the series;
o whether dividends are cumulative and, if cumulative, the dates from
which dividends are cumulative;
o the rate of any dividends, any conditions upon which dividends are
payable, and the dates of payment of dividends;
o whether the shares are redeemable, the redemption price and the terms
of redemption;
o the amount payable to a holder for each share owned if we are
dissolved or liquidated;
o whether the shares are convertible or exchangeable, the price or rate
of exchange, and the applicable terms and conditions;
o any restrictions on issuance of shares in the same series or any other
series; and
o your voting rights for the shares you own.
Holders of our preferred stock will not have preemptive rights with respect
to shares of our preferred stock. In addition, rights with respect to shares of
our preferred stock will be subordinate to the rights of our general creditors.
If we receive the appropriate payment, shares of our preferred stock that we
issue will be fully paid and nonassessable.
As described under "Description of Our Depositary Shares," we may, at our
option, elect to offer depositary shares evidenced by depositary receipts. If we
elect to do this, each depositary receipt will represent a fractional
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interest in a share of the particular series of the preferred stock issued and
deposited with a depositary. The applicable prospectus supplement will specify
that fractional interest.
We currently plan to retain EquiServe Trust Company, N.A. as the registrar
and transfer agent of any series of our preferred stock.
Common Stock
Voting Rights. Holders of common stock are entitled to one vote per share
on each matter to be decided by our shareholders, subject to the rights of
holders of any series of preferred stock that may be outstanding from time to
time. Pursuant to our articles of incorporation, there are no cumulative voting
rights in the election of directors. Accordingly, the holders of a majority of
common stock entitled to vote in any election of directors may elect all of the
directors standing for election.
Dividend Rights and Limitations. Holders of common stock will be entitled
to receive ratably any dividends or distributions that our board of directors
may declare from time to time out of funds legally available for this purpose.
Dividends and other distributions on common stock are also subject to the
rights of holders of any series of preferred stock that may be outstanding from
time to time and to the restrictions in our credit agreement and indentures. See
"--Preferred Stock."
Liquidation Rights. In the event of liquidation, dissolution or winding up
of our affairs, after payment or provision for payment of all of our debts and
obligations and any preferential distributions to holders of shares of preferred
stock, if any, the holders of the common stock will be entitled to share ratably
in our remaining assets available for distribution.
Miscellaneous. All outstanding shares of common stock are validly issued,
fully paid and nonassessable. Our board of directors has the power to issue
shares of authorized but unissued common stock without further shareholder
action. The issuance of these unissued shares could have the effect of diluting
the earnings per share and book value per share of currently outstanding shares
of common stock. The holders of common stock have no preemptive, subscription,
redemption or conversion rights.
Reference is made to the applicable prospectus supplement relating to the
common stock offered by that prospectus supplement for specific terms,
including:
o amount and number of shares offered;
o the initial offering price, if any, and market price; and
o information with respect to dividends.
Transfer Agent and Registrar. The transfer agent and registrar for our
common stock is EquiServe Trust Company, N.A., 150 Royall Street, Canton,
Massachusetts 02021. Its telephone number is (781) 575-2000.
DESCRIPTION OF OUR DEPOSITARY SHARES
General
The description shown below, and in any applicable prospectus supplement,
of certain provisions of any deposit agreement and of the depositary shares and
depositary receipts representing depositary shares does not purport to be
complete and is subject to and qualified in its entirety by reference to the
forms of deposit agreement and depositary receipts relating to each applicable
series of preferred stock. The deposit agreement and the depositary receipts
contain the full legal text of the matters described in this section. We will
file a copy of those documents with the SEC at or before the time of the
offering of the applicable series of preferred stock. This summary also is
subject to
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and qualified by reference to the description of the particular terms of your
series of depositary shares described in the applicable prospectus supplement.
We may, at our option, elect to offer depositary shares representing
fractional interests in shares of preferred stock, rather than shares of
preferred stock. If we exercise this option, we will appoint a depositary to
issue depositary receipts representing those fractional interests. Preferred
stock of each series represented by depositary shares will be deposited under a
separate deposit agreement between us and the depositary. The prospectus
supplement relating to a series of depositary shares will disclose the name and
address of the depositary. Subject to the terms of the applicable deposit
agreement, each holder of depositary shares will be entitled to all of the
distribution, voting, conversion, redemption, liquidation and other rights and
preferences of the preferred stock represented by those depositary shares.
Depositary receipts issued pursuant to the applicable deposit agreement
will evidence ownership of depositary shares. Upon surrender of depositary
receipts at the office of the depositary, and upon payment of the charges
provided in and subject to the terms of the deposit agreement, a holder of
depositary shares will be entitled to receive the shares of preferred stock
underlying the surrendered depositary receipts.
Distributions
A depositary will be required to distribute all cash distributions received
in respect of the applicable preferred stock to the record holders of depositary
shares in proportion to the number of depositary shares held by the holders on
the relevant record date, which will be the same as the record date fixed by us
for the applicable series of preferred stock. Fractions will be rounded down to
the nearest whole cent.
If the distribution is other than in cash, a depositary will be required to
distribute property received by it to the record holders of depositary shares
entitled thereto, in proportion, as nearly as practicable, to the number of
depositary shares owned by those holders on the relevant record date, unless the
depositary determines that it is not feasible to make the distribution. In that
case, the depositary may, with our approval, sell the property and distribute
the net proceeds from the sale to the holders.
Depositary shares that represent preferred stock converted or exchanged
will not be entitled to distributions. The deposit agreement will also contain
provisions relating to the manner in which any subscription or similar rights we
offer to holders of the preferred stock will be made available to holders of
depositary shares. All distributions will be subject to obligations of holders
to file proofs, certificates and other information and to pay certain charges
and expenses to the depositary.
Withdrawal of Preferred Stock
Holders of depositary shares may receive the number of whole shares of the
applicable series of preferred stock and any money or other property represented
by those depositary shares after surrendering the depositary receipts at the
corporate trust office of the depositary and paying the charges provided in the
depositary agreement. Partial shares of preferred stock will not be issued. If
the depositary receipts that a holder surrenders evidence a number of depositary
shares in excess of the number of depositary shares representing the number of
whole shares of preferred stock the holder wishes to withdraw, then the
depositary will deliver to the holder at the same time a new depositary receipt
evidencing the excess number of depositary shares. Once a holder has withdrawn
the holder's preferred stock, the holder will not be entitled to re-deposit
those shares of preferred stock under the deposit agreement in order to receive
depositary shares. We do not expect that there will be any public trading market
for withdrawn shares of preferred stock.
Redemption of Depositary Shares
If we redeem a series of the preferred stock underlying the depositary
shares, the depositary will redeem those depositary shares representing the
preferred stock so redeemed from the proceeds received by it in connection with
the redemption. The depositary will mail notice of redemption not less than 30
and not more than 60 days before the date fixed for redemption to the record
holders of the depositary shares we are redeeming at their addresses
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appearing in the depositary's books. The redemption price per depositary share
will be equal to the applicable fraction of the redemption price per share
payable with respect to the series of the preferred stock. The redemption date
for depositary shares will be the same as that of the preferred stock. If we are
redeeming less than all of the depositary shares, the depositary will select the
depositary shares we are redeeming by lot or pro rata as the depositary may
determine.
After the date fixed for redemption, the depositary shares called for
redemption will no longer be deemed outstanding. All rights of the holders of
the depositary shares and the related depositary receipts will cease at that
time, except the right to receive the money or other property to which the
holders of depositary shares were entitled upon redemption. Receipt of the money
or other property is subject to surrender to the depositary of the depositary
receipts evidencing the redeemed depositary shares.
Voting of the Preferred Stock
Upon receipt of notice of any meeting at which the holders of preferred
stock represented by depositary shares are entitled to vote, a depositary will
be required to mail the information contained in the notice of meeting to the
record holders of the applicable depositary shares. Each record holder of
depositary shares on the record date, which will be the same date as the record
date for the preferred stock, will be entitled to instruct the depositary as to
the exercise of the voting rights pertaining to the amount of preferred stock
represented by the holder's depositary shares. The depositary will try, as
practical, to vote the depositary shares as instructed by the record holder of
depositary shares. We will agree to take all reasonable action that the
depositary deems necessary in order to enable it to do so. If a record holder of
depositary shares does not instruct the depositary how to vote the holder's
depositary shares, the depositary will abstain from voting those shares.
Liquidation Preference
Upon our liquidation, whether voluntary or involuntary, each holder of
depositary shares will be entitled to the fraction of the liquidation preference
accorded each share of preferred stock represented by the depositary shares, as
shown in the applicable prospectus supplement.
Conversion or Exchange of Preferred Stock
The depositary shares will not themselves be convertible into or
exchangeable for common stock, preferred stock or any of our other securities or
property. Nevertheless, if so specified in the applicable prospectus supplement,
the depositary receipts may be surrendered by holders to the applicable
depositary with written instructions to it to instruct us to cause conversion of
the preferred stock represented by the depositary shares. Similarly, if so
specified in the applicable prospectus supplement, we may require holders of
depositary shares to surrender all of their depositary receipts to the
applicable depositary upon our requiring the conversion or exchange of the
preferred stock represented by the depositary shares into a different class of
our securities. We will agree that, upon receipt of the instruction and any
amounts payable in connection with the conversion or exchange, we will cause the
conversion or exchange using the same procedures as those provided for delivery
of preferred stock to effect the conversion or exchange. If a holder of
depositary shares is converting only a part of the depositary shares, the
depositary will issue the holder a new depositary receipt for any unconverted
depositary shares.
Taxation
A holder of depositary shares will be treated for U.S. federal income tax
purposes as if it were a holder of the series of preferred stock represented by
the depositary shares. Therefore, the holder of depositary shares will be
required to take into account for U.S. federal income tax purposes income and
deductions to which it would be entitled if it were a holder of the underlying
series of preferred stock. In addition:
o no gain or loss will be recognized for U.S. federal income tax
purposes upon the withdrawal of preferred stock in exchange for
depositary shares provided in the deposit agreement;
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o the tax basis of each share of preferred stock issued to a holder as
exchanging owner of depositary shares will, upon exchange, be the same
as the aggregate tax basis of the depositary shares exchanged for the
preferred stock; and
o if a holder held the depositary shares as a capital asset at the time
of the exchange for preferred stock, the holding period for shares of
the preferred stock will include the period during which the holder
owned the depositary shares.
Amendment and Termination of a Deposit Agreement
We and the applicable depositary are permitted to amend the form of the
depositary receipt and the provisions of the deposit agreement. However, the
holders of at least a majority of the applicable depositary shares then
outstanding must approve any amendment that adds or increases fees or materially
and adversely alters the rights of holders. Every holder of an outstanding
depositary receipt at the time any amendment becomes effective, by continuing to
hold the receipt, will be bound by the applicable deposit agreement, as amended.
Any deposit agreement may be terminated by us upon not less than 30 days'
prior written notice to the applicable depositary if a majority of each series
of preferred stock affected by the termination consents to the termination. When
that event occurs, the depositary will be required to deliver or make available
to each holder of depositary shares, upon surrender of the depositary receipts
held by the holder, the number of whole or fractional shares of preferred stock
as are represented by the depositary shares evidenced by the depositary
receipts, together with any other property held by the depositary with respect
to the depositary shares. In addition, a deposit agreement will automatically
terminate if:
o all outstanding depositary shares have been redeemed;
o there shall have been a final distribution in respect of the related
preferred stock in connection with our liquidation and the
distribution has been made to the holders of depositary receipts
evidencing the depositary shares underlying the preferred stock; or
o each of the shares of related preferred stock shall have been
converted or exchanged into securities not represented by depositary
shares.
Charges of a Depositary
We will pay all transfer and other taxes and governmental charges arising
solely from the existence of a deposit agreement. In addition, we will pay the
fees and expenses of a depositary in connection with the initial deposit of the
preferred stock and any redemption of the preferred stock. However, holders of
depositary shares will pay any transfer taxes or other governmental charges and
the fees and expenses of a depositary, including a fee for the withdrawal of
shares of preferred stock upon surrender of depositary receipts, as are
expressly provided in the deposit agreement to be for their accounts.
Resignation and Removal of Depositary
A depositary may resign at any time by delivering to us notice of its
election to do so. In addition, we may at any time remove a depositary. Any
resignation or removal will take effect when we appoint a successor depositary
and it accepts the appointment. We must appoint a successor depositary within 60
days after delivery of the notice of resignation or removal. A depositary must
be a bank or trust company having its principal office in the United States that
has a combined capital and surplus of at least $50 million.
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Miscellaneous
A depositary will be required to forward to holders of depositary shares
any reports and communications that it receives from us with respect to the
related preferred stock. Holders of depository shares will be able to inspect
the transfer books of the depository and the list of holders of depositary
shares upon reasonable notice.
Neither we nor a depositary will be liable if either of us are prevented
from, or delayed in performing, by law or any circumstances beyond our control,
our obligations under a deposit agreement. Our obligations and those of the
depositary under a deposit agreement will be limited to performing our duties in
good faith and without gross negligence or willful misconduct. Neither we nor
any depositary will be obligated to prosecute or defend any legal proceeding in
respect of any depositary receipts, depositary shares or related preferred stock
unless satisfactory indemnity is furnished. We and each depositary will be
permitted to rely on written advice of counsel or accountants, on information
provided by persons presenting preferred stock for deposit, by holders of
depositary shares, or by other persons believed in good faith to be competent to
give the information, and on documents believed in good faith to be genuine and
signed by a proper party.
If a depositary receives conflicting claims, requests or instructions from
any holders of depositary shares, on the one hand, and us, on the other hand,
the depositary shall be entitled to act on the claims, requests or instructions
received from us.
DESCRIPTION OF OUR WARRANTS
This section describes the general terms and provisions of our warrants to
acquire our securities that we may issue from time to time. The applicable
prospectus supplement will describe the specific terms of the warrants offered
through that prospectus supplement.
We may issue, together with any other securities being offered or
separately, warrants entitling the holder to purchase from or sell to us, or to
receive from us the cash value of the right to purchase or sell, our debt
securities, preferred stock, depositary shares or common stock. We and a warrant
agent will enter a warrant agreement pursuant to which the warrants will be
issued. The warrant agent will act solely as our agent in connection with the
warrants and will not assume any obligation or relationship of agency or trust
for or with any holders or beneficial owners of warrants. We will file a copy of
the warrants and the warrant agreement with the SEC at or before the time of the
offering of the applicable series of warrants. A holder of our warrants should
refer to the provisions of the applicable warrant agreement and prospectus
supplement for more specific information.
In the case of each series of warrants, the applicable prospectus
supplement will describe the terms of the warrants being offered thereby. These
include the following, if applicable:
o the offering price;
o the number of warrants offered;
o the securities underlying the warrants;
o the exercise price, the amount of securities you will receive upon
exercise, the procedure for exercise of the warrants and the
circumstances, if any, that will cause the warrants to be
automatically exercised;
o the rights, if any, we have to redeem the warrants;
o the date on which the warrants will expire;
o U.S. federal income tax consequences;
o the name of the warrant agent; and
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o any other terms of the warrants.
Warrants may be exercised at the appropriate office of the warrant agent or
any other office indicated in the applicable prospectus supplement. Before the
exercise of warrants, holders will not have any of the rights of holders of the
securities purchasable upon exercise and will not be entitled to payments made
to holders of those securities.
The warrant agreements may be amended or supplemented without the consent
of the holders of the warrants to which it applies to effect changes that are
not inconsistent with the provisions of the warrants and that do not materially
and adversely affect the interests of the holders of the warrants. However, any
amendment that materially and adversely alters the rights of the holders of
warrants will not be effective unless the holders of at least a majority of the
applicable warrants then outstanding approve the amendment. Every holder of an
outstanding warrant at the time any amendment becomes effective, by continuing
to hold the warrant, will be bound by the applicable warrant agreement as
amended. The prospectus supplement applicable to a particular series of warrants
may provide that certain provisions of the warrants, including the securities
for which they may be exercisable, the exercise price and the expiration date,
may not be altered without the consent of the holder of each warrant.
DESCRIPTION OF THE STOCK PURCHASE CONTRACTS
AND THE STOCK PURCHASE UNITS
We may issue contracts obligating holders to purchase from us, and us to
sell to the holders, a specified number of shares of common stock at a future
date or dates, which we refer to herein as "stock purchase contracts." The price
per share of common stock and the number of shares of common stock may be fixed
at the time the stock purchase contracts are issued or may be determined by
reference to a specific formula set forth in the stock purchase contracts. The
stock purchase contracts may be issued separately or as part of units consisting
of a stock purchase contract and debt securities, trust preferred securities or
debt obligations of third parties, including U.S. treasury securities, which
secure the holders' obligations to purchase the common stock under the stock
purchase contracts. We refer to these units herein as "stock purchase units."
The stock purchase contracts may require holders to secure their obligations
thereunder in a specified manner. The stock purchase contracts also may require
us to make periodic payments to the holders of the stock purchase units or vice
versa, and such payments may be unsecured or refunded on some basis.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units. The description in the applicable
prospectus supplement will not necessarily be complete, and reference will be
made to the stock purchase contracts, and, if applicable, collateral or
depositary arrangements, relating to the stock purchase contracts or stock
purchase units. Material U.S. federal income tax considerations applicable to
the stock purchase units and the stock purchase contracts will also be discussed
in the applicable prospectus supplement.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES
If and when IM Capital Trust issues trust preferred securities, its
declaration of trust will be replaced by an amended and restated declaration of
trust which will authorize its trustees to issue one series of trust preferred
securities and one series of trust common securities. The form of amended and
restated declaration of trust is filed with the SEC as an exhibit to the
registration statement of which this prospectus is a part.
The terms of the trust preferred securities will include those stated in IM
Capital Trust's declaration of trust, as it may be amended and restated from
time to time, and those made a part of that declaration by the Trust Indenture
Act of 1939. This section describes the general terms and provisions of IM
Capital Trust's amended and restated declaration of trust and the trust
securities IM Capital Trust may offer from time to time. The applicable
prospectus supplement will describe the specific terms of the amended and
restated declaration of trust and the trust preferred securities offered through
that prospectus supplement. Any final amended and restated declaration of trust
will be filed with the SEC if IM Capital Trust issues trust preferred
securities. A holder of trust preferred securities should read the applicable
prospectus supplement and the amended and restated declaration of trust for more
specific information.
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The prospectus supplement relating to the trust preferred securities being
offered will include specific terms relating to the offering. These terms will
include some or all of the following:
o the designation of the trust preferred securities;
o the number of trust preferred securities to be issued;
o the annual distribution rate and any conditions upon which
distributions are payable, the distribution payment dates, the record
dates for distribution payments and the additional amounts, if any,
that may be payable with respect to the trust preferred securities;
o whether distributions will be cumulative and compounding and, if so,
the dates from which distributions will be cumulative or compounded;
o the amounts that will be paid out of the assets of IM Capital Trust,
after the satisfaction of liabilities to creditors of IM Capital
Trust, to the holders of trust preferred securities upon dissolution,
winding up or termination of IM Capital Trust;
o any repurchase, redemption or exchange provisions;
o any preference or subordination rights upon a default or liquidation
of IM Capital Trust;
o any voting rights of the trust preferred securities in addition to
those required by law, including the number of votes per trust
preferred security and any requirement for the approval by the holders
of trust preferred securities, as a condition to a specified action or
amendments to the declaration of trust;
o terms for any conversion or exchange of the related series of our debt
securities or the trust preferred securities into other securities;
o any rights to defer distributions on the trust preferred securities by
extending the interest payment period on the related series of our
debt securities;
o any terms and conditions upon which the related series of our debt
securities may be distributed to holders of trust preferred
securities; and
o any other relevant terms, rights, preferences, privileges, limitations
or restrictions of the trust preferred securities.
The regular trustee, on behalf of IM Capital Trust and pursuant to the
declaration of trust, will issue one class of trust preferred securities and one
class of trust common securities. The trust preferred and trust common
securities will represent undivided beneficial ownership interests in the assets
of IM Capital Trust. Except as described in the applicable prospectus
supplement, the trust preferred securities will rank equally, and payments will
be made thereon proportionately, with the trust common securities. The trust
preferred securities will be issued to the public under the registration
statement of which this prospectus is a part. The trust common securities will
be issued directly or indirectly to us.
The only source of cash to make payments on the trust preferred securities
issuable by IM Capital Trust will be payments on debt securities IM Capital
Trust purchases from us. The property trustee of IM Capital Trust will hold
legal title to the debt securities IM Capital Trust purchases in trust for the
benefit of the holders of its trust preferred securities. If IM Capital Trust is
dissolved, after satisfaction of IM Capital Trust's creditors, the property
trustee may distribute the debt securities held in trust on a proportionate
basis to the holders of trust preferred and trust common securities.
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We will execute a guarantee agreement for the benefit of the holders of the
trust preferred securities. The terms of our guarantee will be set forth in the
applicable prospectus supplement and are summarized under the caption
"Description of the Trust Preferred Securities Guarantee" included elsewhere in
this prospectus. As discussed below, the guarantee will not guarantee the
payment of distributions, or any amounts payable on redemption or liquidation of
the trust preferred securities when IM Capital Trust does not have funds
available to make these payments.
In the applicable prospectus supplement we will also describe certain
material U.S. federal income tax consequences and special considerations
applicable to the trust preferred securities.
DESCRIPTION OF THE TRUST PREFERRED SECURITIES GUARANTEE
If and when IM Capital Trust issues trust preferred securities, we will
fully and unconditionally guarantee payments on the trust preferred securities
as described in this section, any applicable prospectus supplement and the
guarantee executed by us in connection with the issuance of the trust preferred
securities. The Bank of New York, as guarantee trustee, will hold the guarantee
for the benefit of the holders of trust preferred securities.
This section describes the general terms and provisions of our trust
preferred securities guarantee. The applicable prospectus supplement will
describe the specific terms of the trust preferred securities guarantee. The
form of trust guarantee is filed with the SEC as an exhibit to the registration
statement of which this prospectus is a part. We will file with the SEC a final
guarantee if IM Capital Trust issues trust preferred securities. A holder of
trust preferred securities should refer to the applicable prospectus supplement
and to the full text of our guarantee, and those terms made a part of the
guarantee by the Trust Indenture Act of 1939, for more specific information.
We will irrevocably and unconditionally agree to pay in full to holders of
trust preferred securities the following amounts to the extent not paid by IM
Capital Trust:
o any accumulated and unpaid distributions and any additional amounts
with respect to the trust preferred securities and any redemption
price for trust preferred securities called for redemption by IM
Capital Trust, if and to the extent that we have made corresponding
payments on the debt securities to the property trustee of IM Capital
Trust; and
o payments upon the dissolution of IM Capital Trust equal to the lesser
of:
(1) the liquidation amount plus all accumulated and unpaid
distributions and additional amounts on the trust preferred
securities to the extent IM Capital Trust has funds legally
available for those payments; and
(2) the amount of assets of IM Capital Trust remaining legally
available for distribution to the holders of trust preferred
securities in liquidation of IM Capital Trust.
We will not be required to make these liquidation payments if:
o IM Capital Trust distributes the debt securities to the holders of
trust preferred securities in exchange for their trust preferred
securities; or
o IM Capital Trust redeems the trust preferred securities in full upon
the maturity or redemption of the debt securities.
We may satisfy our obligation to make a guarantee payment either by making
payment directly to the holders of trust preferred securities or to the
guarantee trustee for remittance to the holders or by causing IM Capital Trust
to make the payment to them.
The guarantee is a guarantee from the time of issuance of the applicable
series of trust preferred securities. THE GUARANTEE ONLY COVERS, HOWEVER,
DISTRIBUTIONS AND OTHER PAYMENTS ON TRUST
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PREFERRED SECURITIES IF AND TO THE EXTENT THAT WE HAVE MADE CORRESPONDING
PAYMENTS ON THE DEBT SECURITIES TO THE APPLICABLE PROPERTY TRUSTEE. IF WE DO NOT
MAKE THOSE CORRESPONDING PAYMENTS ON THE DEBT SECURITIES, IM CAPITAL TRUST WILL
NOT HAVE FUNDS AVAILABLE FOR PAYMENTS AND WE WILL HAVE NO OBLIGATION TO MAKE A
GUARANTEE PAYMENT.
The obligations under the debt securities, the associated indenture, IM
Capital Trust's declaration of trust and our related guarantee, taken together,
will provide a full and unconditional guarantee of payments of distributions and
other amounts due on the trust preferred securities.
Iron Mountain Covenants
In the guarantee, we will agree that, as long as any trust preferred
securities issued by IM Capital Trust are outstanding, we will not make the
payments and distributions described below if:
o we are in default on our guarantee payments or other payment
obligations under the related guarantee;
o any trust enforcement event under IM Capital Trust's declaration of
trust has occurred and is continuing; or
o we elect to defer payments of interest on the related debt securities
by extending the interest payment period, and that deferral period is
continuing.
In these circumstances, we will agree that we will not:
o declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of our
capital stock; or
o make any payment of principal, interest or premium, if any, on or
repay, repurchase or redeem any debt securities that rank equally
with, or junior in interest to, the debt securities we issue to IM
Capital Trust or make any guarantee payments with respect to any
guarantee by us of the debt of any of our subsidiaries if that
guarantee ranks equally with or junior in interest to the debt
securities we issue to IM Capital Trust.
However, even during these circumstances, we may:
o purchase or acquire our capital stock in connection with the
satisfaction of our obligations under any employee benefit plans or
pursuant to any contract or security outstanding on the first day of
any extension period requiring us to purchase our capital stock (other
than a contract or security ranking expressly by its terms on a parity
with or junior to the debt securities);
o reclassify our capital stock or exchange or convert one class or
series of our capital stock for another class or series of our capital
stock;
o purchase fractional interests in shares of our capital stock pursuant
to the conversion or exchange provisions of our capital stock or the
security being converted or exchanged;
o declare dividends or distributions in our capital stock where the
dividend stock is the same stock as that on which the dividend is
being paid;
o redeem, repurchase or issue any rights pursuant to a rights agreement;
and
o make payments under the guarantee related to the trust preferred
securities.
In addition, as long as trust preferred securities issued by IM Capital
Trust are outstanding, we will agree that we will:
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o remain the sole direct or indirect owner of all the outstanding trust
common securities of IM Capital Trust, except as permitted by its
declaration of trust;
o permit the trust common securities of IM Capital Trust to be
transferred only as permitted by its declaration of trust; and
o use reasonable efforts to cause IM Capital Trust to continue to be
treated as a grantor trust for U.S. federal income tax purposes,
except in connection with a distribution of debt securities to the
holders of trust preferred securities as provided in its declaration
of trust, in which case IM Capital Trust would be dissolved.
Amendments and Assignment
We and the guarantee trustee may amend the guarantee without the consent of
any holder of trust preferred securities if the amendment does not adversely
affect the rights of the holders in any material respect. In all other cases, we
and the guarantee trustee may amend the guarantee only with the prior approval
of the holders of at least a majority of outstanding trust preferred securities
issued by IM Capital Trust.
We may assign our obligations under the guarantee only in connection with a
consolidation, merger or asset sale involving us that is permitted under the
indenture governing the debt securities.
Termination of the Guarantee
Our guarantee will terminate upon:
o full payment of the redemption price of all trust preferred securities
of IM Capital Trust;
o distribution of the related debt securities, or any securities into
which those debt securities are convertible, to the holders of the
trust preferred and trust common securities of IM Capital Trust in
exchange for all the securities issued by IM Capital Trust; or
o full payment of the amounts payable upon liquidation of IM Capital
Trust.
The guarantee will, however, continue to be effective, or will be
reinstated, if any holder of trust preferred securities must repay any amounts
paid on those trust preferred securities or under the guarantee.
Status of the Guarantee
We will specify in the applicable prospectus supplement the ranking of the
guarantee with respect to our capital stock and other liabilities, including
other guarantees.
The guarantee will be deposited with the guarantee trustee to be held for
the benefit of the holders of the trust preferred securities. The guarantee
trustee will have the right to enforce the guarantee on the holders' behalf. In
most cases, the holders of a majority of outstanding trust preferred securities
issued by IM Capital Trust will have the right to direct the time, method and
place of:
o conducting any proceeding for any remedy available to the applicable
guarantee trustee; or
o exercising any trust or other power conferred upon that guarantee
trustee under the guarantee.
The guarantee will constitute a guarantee of payment and not merely of
collection. This means that the guarantee trustee may institute a legal
proceeding directly against us to enforce the payment rights under the
guarantee, without first instituting a legal proceeding against IM Capital Trust
or any other person or entity.
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If the guarantee trustee fails to enforce the guarantee or we fail to make
a guarantee payment, a holder of the trust preferred securities may institute a
legal proceeding directly against us to enforce the holder's rights under that
guarantee without first instituting a legal proceeding against IM Capital Trust,
the guarantee trustee or any other person or entity.
Periodic Reports Under Guarantee
We will be required to provide annually to the guarantee trustee a
statement as to our performance of our obligations and our compliance with all
conditions under the guarantee.
Duties of Guarantee Trustee
The guarantee trustee normally will perform only those duties specifically
set forth in the guarantee. The guarantee will not contain any implied
covenants. If a default occurs on the guarantee, the guarantee trustee will be
required to use the same degree of care and skill in the exercise of its powers
under the guarantee as a prudent person would exercise or use under the
circumstances in the conduct of his own affairs. The guarantee trustee will
exercise any of its rights or powers under the guarantee at the request or
direction of holders of the trust preferred securities only if the guarantee
trustee is offered security and indemnity satisfactory to it.
RELATIONSHIP AMONG THE DEBT SECURITIES, THE TRUST PREFERRED SECURITIES
AND THE TRUST PREFERRED SECURITIES GUARANTEE
To the extent set forth in the guarantee and to the extent funds are
available, we will irrevocably guarantee the payment of distributions and other
amounts due on the trust preferred securities. If and to the extent we do not
make payments on the debt securities to the property trustee, IM Capital Trust
will not have sufficient funds to pay distributions or other amounts due on the
trust preferred securities. The guarantee does not cover any payment of
distributions or other amounts due on the trust preferred securities unless IM
Capital Trust has sufficient funds for the payment of such distributions or
other amounts. In such event, a holder of trust preferred securities may
institute a legal proceeding directly against us to enforce payment of such
distributions or other amounts to such holder after the respective due dates.
Taken together, our obligations under the debt securities, the associated
indenture, IM Capital Trust's declaration of trust and our related guarantee
will provide a full and unconditional guarantee of payments of distributions and
other amounts due on the trust preferred securities. No single document standing
alone or operating in conjunction with fewer than all of the other documents
constitutes such guarantee. It is only the combined operation of these documents
that provides a full and unconditional guarantee of IM Capital Trust's payment
obligations under the trust preferred securities.
Sufficiency of Payments
As long as payments of interest and other amounts are made when due on the
debt securities, such payments will be sufficient to cover distributions and
payments due on the trust preferred securities because of the following factors:
o the aggregate principal amount of the debt securities will be equal to
the sum of the aggregate stated liquidation amount of the trust
preferred securities;
o the interest rate and the interest and other payment dates on the debt
securities will match the distribution rate and distribution and other
payment dates for the trust preferred securities;
o we, as issuer of the debt securities, will pay, and IM Capital Trust
will not be obligated to pay, directly or indirectly, any costs,
expenses, debts and obligations of IM Capital Trust, other than with
respect to the trust preferred securities; and
o the declaration of trust will further provide that IM Capital Trust
will not engage in any activity that is not consistent with the
limited purposes of IM Capital Trust.
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Notwithstanding anything to the contrary in the indenture, we have the
right to set off any payment we are otherwise required to make thereunder
against and to the extent we have already made, or are concurrently on the date
of such payment making, a related payment under the guarantee.
Enforcement Rights of Holders of Preferred Securities
The declaration of trust provides that if we fail to make interest or other
payments on the debt securities when due, taking account of any extension
period, the holders of the trust preferred securities may direct the property
trustee to enforce its rights under the applicable indenture. If the property
trustee fails to enforce its rights under the indenture in respect of an event
of default under the indenture, any holder of record of trust preferred
securities may, to the fullest extent permitted by applicable law, institute a
legal proceeding against us to enforce the property trustee's rights under the
indenture without first instituting any legal proceeding against IM Capital
Trust, the property trustee or any other person or entity. Notwithstanding the
foregoing, if a trust enforcement event has occurred and is continuing and such
event is attributable to our failure to pay interest, premium or principal on
the debt securities on the date such interest, premium or principal is otherwise
payable, then a holder of trust preferred securities may institute a direct
action against us for payment of such holder's pro rata share. If a holder
brings such a direct action, we will be entitled to that holder's rights under
IM Capital Trust's declaration of trust to the extent of any payment made by us
to that holder.
If we fail to make payments under the guarantee, a holder of trust
preferred securities may institute a proceeding directly against us for
enforcement of the guarantee for such payments.
Limited Purpose of Trust
The trust preferred securities evidence undivided beneficial ownership
interests in the assets of IM Capital Trust, and IM Capital Trust exists for the
sole purpose of issuing and selling the trust preferred and trust common
securities and using the proceeds to purchase our debt securities. A principal
difference between the rights of a holder of trust preferred securities and a
holder of our debt securities is that a holder of our debt securities is
entitled to receive from us the principal amount of, and interest accrued on,
the debt securities held, while a holder of trust preferred securities is
entitled to receive distributions and other payments from IM Capital Trust, or
from us under the guarantee, only if, and to the extent, IM Capital Trust has
funds available for the payment of such distributions and other payments.
Rights Upon Dissolution
Upon any voluntary or involuntary dissolution of IM Capital Trust involving
the redemption or repayment of the debt securities, the holders of the trust
preferred securities will be entitled to receive, out of assets held by IM
Capital Trust, subject to the rights of creditors of IM Capital Trust, if any,
the liquidation distribution in cash. Because we are the guarantor under the
guarantee and, as issuer of the debt securities, we have agreed to pay for all
costs, expenses and liabilities of IM Capital Trust other than IM Capital
Trust's obligations to the holders of the trust preferred securities, the
positions of a holder of trust preferred securities and a holder of debt
securities relative to other creditors and to our stockholders in the event of
liquidation or bankruptcy of us would be substantially the same.
DESCRIPTION OF CERTAIN PROVISIONS OF PENNSYLVANIA LAW AND OUR
ARTICLES OF INCORPORATION AND BYLAWS
We are organized as a Pennsylvania corporation. The following is a summary
of our articles of incorporation and bylaws and certain provisions of
Pennsylvania law. Because it is a summary, it does not contain all the
information that may be important to you. If you want more information, you
should read our entire articles of incorporation and bylaws, copies of which we
have previously filed with the SEC, see "Where You Can Find More Information,"
or refer to the provisions of Pennsylvania law.
Pennsylvania law, our articles of incorporation and our bylaws contain some
provisions that could delay or make more difficult the acquisition of us by
means of a tender offer, a proxy contest or otherwise. These provisions,
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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 us first to negotiate with us. We believe that the
benefits of increased protection of our ability to negotiate with the proponent
of an unfriendly or unsolicited proposal to acquire or restructure us 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.
Pennsylvania Anti-Takeover Statutory Provisions
We are subject to the anti-takeover provisions of Section 2538 and Sections
2551-2556 of the Pennsylvania Business Corporation Law of 1988, as amended (the
"PBCL"), which in certain cases impose restrictions on, including providing for
supermajority shareholder approval of, business combinations involving us and
any "interested shareholder." "Interested shareholder" includes generally, in
the case of Section 2538, shareholders who are a party to the business
combination or who are treated differently from other shareholders, and, in the
case of Sections 2551-2556, shareholders beneficially owning 20% or more of the
voting power of a "registered" corporation, such as us, or an affiliate or
associate of such corporation which, during the prior five year period,
beneficially owned 20% or more of the voting power of such corporation. The term
"business combination" is broadly defined to include various transactions
including mergers, consolidations, asset sales and other similar transactions to
or with the interested shareholder or with, involving or resulting in any other
corporation which is or would be after the transaction, an affiliate or
associate of an interested shareholder. The PBCL provides for further statutory
anti-takeover provisions relating to control transactions, control-share
acquisitions and disgorgement. We have specifically opted out of these
provisions pursuant to our articles of incorporation.
The PBCL also provides that when making decisions concerning takeovers or
any other matters, the directors of a corporation may consider, to the extent
that they deem appropriate, among other things, (1) the effects of any proposed
transaction upon any or all groups affected by the transaction, including, among
others, shareholders, employees, suppliers, customers, creditors and communities
in which we have offices, (2) the short-term and long-term interests of the
corporation and (3) the resources, intent and conduct of the person seeking
control.
Classified Board of Directors and Other Provisions of Our Articles of
Incorporation and Bylaws
Our bylaws provide that, other than directors to be elected by holders of
any series of preferred stock, our board of directors is to be composed of three
classes, with staggered three-year terms, each class to be as nearly equal in
number as reasonably possible. Accordingly, at each annual meeting of
shareholders, only approximately one-third of the directors will be elected. The
classification of directors has the effect of making it more difficult to change
the composition of our board of directors.
Our bylaws provide that a vacancy on the board of directors, including a
vacancy created by an increase in the size of the board of directors by the
directors, may be filled by a majority of the remaining directors, or by a sole
remaining director, or by the shareholders, and each person so elected shall be
a director to serve for the balance of the unexpired term of that class of
directors. Likewise, under the PBCL, without an unanimous vote, shareholders may
only remove directors for cause. These provisions are to ensure that a third
party would be precluded from removing incumbent directors and simultaneously
gaining control of the board of directors by filling the vacancies with its own
nominees.
Certain other provisions of our articles of incorporation and bylaws could
also have the effect of preventing or delaying any change in control of us,
including:
o the advance notification procedures imposed on shareholders for
shareholder nominations of candidates for the board of directors and
for other shareholder business to be conducted at annual or special
meetings;
o the absence of authority for shareholders to call special shareholder
meetings, except in certain limited circumstances mandated by the
PBCL; and
o the absence of authority for shareholder action by unanimous or
partial written consent in lieu of an annual or special meeting.
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These provisions, the classified board of directors and statutory
anti-takeover provisions, could make it more difficult for a third party to
acquire, or discourage a third party from seeking to acquire, control of us.
Limitation of Directors' Liability and Indemnification of Directors and Officers
As permitted by the PBCL, our bylaws provide that a director shall not be
personally liable for monetary damages for any action taken, or any failure to
take any action, unless the director breaches or fails to perform the duties of
his office under the PBCL, and the breach or failure to perform constitutes
self-dealing, willful misconduct or recklessness. These provisions of our
bylaws, however, do not apply to the responsibility or liability of a director
pursuant to any criminal statute, or to the liability of a director for the
payment of taxes pursuant to local, state or federal law. These provisions offer
persons who serve on the board of directors protection against awards of
monetary damages for negligence in the performance of their duties.
Our bylaws also provide that directors or officers made a party to, or
threatened to be made a party to, or otherwise involved in, any proceeding,
because he or she is or was a representative of us or is or was serving as a
representative of another corporation or any partnership, joint venture, trust,
employee benefit plan or other enterprise, on our behalf, shall be indemnified
and held harmless by us to the fullest extent permitted by Pennsylvania law
against all expenses, liabilities and losses reasonably incurred by or imposed
upon him or her, in connection with any threatened, pending or completed action,
suit or proceeding. Indemnification is not available, however, if a court
determines that the act or failure to act giving rise to the claim constitutes
willful misconduct or recklessness.
Pursuant to our bylaws, amending the provisions to reduce the limitation of
director's liability or limit the right to indemnification requires unanimous
vote of the directors or a majority vote of the shareholders.
PLAN OF DISTRIBUTION
We and IM Capital Trust may sell the offered securities to one or more
underwriters for public offering and sale by them. We and IM Capital Trust may
also sell the offered securities to investors directly or through agents. We
will name any underwriter or agent involved in the offer and sale of the offered
securities in the applicable prospectus supplement.
The distribution of offered securities may be effected from time to time in
one or more transactions at:
o a fixed price or varying prices;
o market prices prevailing at the time of sale;
o prices related to the market prices; or
o negotiated prices.
Underwriters, dealers and agents participating in the distribution of the
securities may be deemed to be underwriters, and any discounts and commissions
received by them and any profit realized by them on resale of the securities may
be deemed to be underwriting discounts and commissions under the Securities Act
of 1933. Underwriters, dealers and agents may be entitled, under agreements with
us and/or IM Capital Trust, to indemnification against and contribution toward
certain civil liabilities, including liabilities under the Securities Act of
1933, and to reimbursement by us and/or IM Capital Trust for certain expenses.
If an underwriter or underwriters are used in the offer or sale of
securities, we and/or IM Capital Trust will execute an underwriting agreement
with the underwriters at the time of sale of the securities to the underwriters,
and the names of the underwriters and the principal terms of our and/or IM
Capital Trust's agreements with the underwriters will be provided in the
applicable prospectus supplement.
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If we so indicate in the prospectus supplement, we and IM Capital Trust may
authorize agents, underwriters or dealers to solicit offers from certain types
of institutions to purchase securities from us or IM Capital Trust at the public
offering price under delayed delivery contracts. These contracts would provide
for payment and delivery on a specified date in the future. The contracts would
be subject only to those conditions described in the prospectus supplement. The
prospectus supplement will describe the commission payable for solicitation of
those contracts.
Unless otherwise specified in the related prospectus supplement, each
series of offered securities, other than shares of common stock, will be a new
issue with no established trading market. Any shares of common stock sold
pursuant to a prospectus supplement will be listed on the New York Stock
Exchange, subject to official notice of issuance. We and IM Capital Trust may
elect to list any other series or class of offered securities on an exchange or
on the Nasdaq National Market, but are not obligated to do so. Any underwriters
to whom offered securities are sold by us for public offering and sale may make
a market in those offered securities. Underwriters will not be obligated to make
any market, however, and may discontinue any market making at any time without
notice. No assurance can be given as to the liquidity of, or the trading markets
for, any offered securities.
Certain of the underwriters and their affiliates may engage in transactions
with and perform services for us in the ordinary course of business for which
they receive compensation.
The specific terms and manner of sale of the offered securities will be
shown or summarized in the applicable prospectus supplement.
VALIDITY OF THE OFFERED SECURITIES
Sullivan & Worcester LLP, Boston, Massachusetts, will pass upon the
validity of the debt securities, preferred stock, depositary shares, common
stock, warrants, guarantees, stock purchase contracts and stock purchase units.
As to certain matters of Pennsylvania law, Sullivan & Worcester LLP will rely
upon an opinion of Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia,
Pennsylvania.
The validity of the trust preferred securities to be issued by IM Capital
Trust, and the enforceability of its declaration of trust and the creation of IM
Capital Trust, will be passed upon by Richards, Layton and Finger, P.A.,
Wilmington, Delaware.
NOTICE REGARDING ARTHUR ANDERSEN LLP
Effective June 19, 2002, we dismissed Arthur Andersen LLP, our former
independent auditor. Our audited consolidated financial statements as of
December 31, 2001 and for the years ended December 31, 2001 and 2000 that are
incorporated by reference in the registration statement of which this prospectus
forms a part were audited by Andersen as stated in their reports incorporated by
reference herein, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in auditing and accounting.
Andersen has not consented to the incorporation by reference of its audit
reports in the registration statement of which this prospectus forms a part, and
we have dispensed with the requirement to file Andersen's consent in reliance on
Rule 437a under the Securities Act. Since Andersen has not consented to the
incorporation by reference of their audit reports in the registration statement,
an investor's ability to seek potential recoveries from Andersen related to any
claims that an investor may assert as a result of the work performed by Andersen
may be limited significantly by the lack of such consent and the diminished
amount of assets of Andersen that are or may be available to satisfy any such
claims.
EXPERTS
The consolidated financial statements as of and for the year ended December 31,
2002 incorporated in this prospectus by reference from the Iron Mountain
Incorporated Annual Report on Form 10-K for the year ended December 31, 2002
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report (which report expresses an unqualified opinion on the 2002
financial statements and includes an explanatory paragraph concerning the
application of procedures relating to certain disclosures and reclassifications
of financial statement amounts related to the 2001 and 2000 financial statements
that were audited by other auditors who have ceased operations) which
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is incorporated by reference, and have been so incorporated in reliance upon the
report of such firm given their authority as experts in accounting and auditing.
The report dated February 21, 2003 of RSM Robson Rhodes, the independent
auditors, on the consolidated financial statements of Iron Mountain Europe
Limited as of October 31, 2001 and 2002 and for the three years ended October
31, 2002, is incorporated into the registration statement of which this
prospectus forms a part by reference from the Iron Mountain Incorporated Annual
Report on Form 10-K for the year ended December 31, 2002 and, is incorporated by
reference herein in reliance upon the authority of said firm as experts in
accounting and auditing.
On May 3, 2003, RSM Robson Rhodes transferred its business to RSM Robson
Rhodes LLP (a Limited Liability Partnership under the Limited Liability
Partnerships Act 2000). Under the powers given by Paragraph 3 of Section 26 of
the Companies Act 1989, the Board of Directors of Iron Mountain Europe Limited
resolved that the previous appointment of RSM Robson Rhodes as the auditors of
Iron Mountain Europe Limited should be extended, with effect from May 3, 2003,
to RSM Robson Rhodes LLP.
The consolidated financial statements of Iron Mountain Incorporated and its
subsidiaries as of December 31, 2001 and for the years ended December 31, 2001
and 2000, and its supplemental schedule, Valuation and Qualifying Accounts,
included in its Annual Report on Form 10-K for the year ended December 31, 2002,
filed with the Securities and Exchange Commission on March 21, 2003 and
incorporated by reference into the registration statement of which this
prospectus forms a part, have been audited by Arthur Andersen LLP, independent
public accountants, as set forth in their report dated February 22, 2002 (except
with respect to Note 17, as to which the date is March 15, 2002). In their
report on Iron Mountain's consolidated financial statements, that firm states
that, with respect to certain subsidiaries, its opinion is based on the report
of RSM Robson Rhodes, independent public accountants. The consolidated
financial statements and supporting schedule referred to above have been
incorporated by reference herein in reliance upon the authority of those firms
as experts in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information on file at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. You can request copies of those documents upon
payment of a duplicating fee to the SEC. Please call the SEC at 1-800-SEC-0330
for further information on the operation of the public reference rooms. You can
review our SEC filings and the registration statement by accessing the SEC's
Internet site at http://www.sec.gov. Our common stock is listed on the New York
Stock Exchange where reports, proxy statements and other information concerning
us can also be inspected. The offices of the NYSE are located at 20 Broad
Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. Statements in this prospectus
regarding the contents of any contract or other document may not be complete.
You should refer to the copy of the contract or other document filed as an
exhibit to the registration statement. Later information filed with the SEC will
update and supersede information we have included or incorporated by reference
in this prospectus.
We incorporate by reference the following documents filed by us:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2002.
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
o Definitive Proxy on Schedule 14A filed April 17, 2003.
o Current Reports on Form 8-K filed April 9, 2003, April 30, 2003 and
May 7, 2003.
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o The description of our common stock contained in the Registration
Statement on Form 8-A dated May 27, 1997, including all amendments and
reports filed for the purpose of updating such description.
In addition to the documents listed above, we incorporate by reference any
future filings made by us, including filings made prior to the effectiveness of
this registration statement, with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until our offering of the
securities made by this prospectus is completed or terminated.
We will provide you with a copy of the information we have incorporated by
reference, excluding exhibits other than those to which we specifically refer.
You may obtain this information at no cost by writing or telephoning us at: 745
Atlantic Avenue, Boston, Massachusetts 02111, (617) 535-4799, Attention:
Investor Relations.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
PRELIMINARY PROSPECTUS
Subject To Completion
Preliminary Prospectus Dated May 22, 2003
Iron Mountain Incorporated
Direct Stock Purchase Plan
This prospectus relates to our Direct Stock Purchase Plan. The plan is
designed to provide investors with a convenient and economical way to purchase
shares of our common stock. Under the plan, participants may:
o Purchase their first shares of our common stock by making an initial
cash investment of at least $1,000 and up to $10,000.
o Purchase additional shares of our common stock by making optional cash
investments at any time of at least $500 per payment and up to a
maximum of $10,000 per month.
o Make optional cash investments in excess of $10,000 per month, but
only after submission of a written request for waiver has been made to
us and after we have given our written approval, which we may grant or
refuse to grant in our sole discretion.
o On investments in excess of $10,000 that we approve, purchase newly
issued shares of our common stock at a discount of up to 5%, as we may
determine from time to time in our sole discretion.
o Elect to automatically reinvest cash dividends, if any, that we pay in
the future on all or a portion of their shares of common stock.
Please read this prospectus in its entirety for a more detailed description
of our Direct Stock Purchase Plan and its features.
Our common stock is listed on the New York Stock Exchange under the symbol
"IRM."
Investing in our securities involves risks. See "Risk Factors" beginning on
page 2.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
Our principal executive office is 745 Atlantic Avenue, Boston,
Massachusetts 02111 and our telephone number is (617) 535-4766.
The date of this prospectus is _____________, 2003
TABLE OF CONTENTS
Page
Cautionary Note Regarding Forward-Looking Information.................. 1
Our Company............................................................ 2
Risk Factors........................................................... 2
Description of Our Direct Stock Purchase Plan.......................... 3
Use of Proceeds........................................................ 18
Plan of Distribution................................................... 18
Sales of Shares by Participants........................................ 19
Validity of the Offered Securities..................................... 19
Notice Regarding Arthur Andersen LLP................................... 19
Experts................................................................ 19
Where You Can Find More Information.................................... 20
Documents Incorporated By Reference.................................... 20
You should rely only on the information incorporated by reference or
provided in this document and any prospectus supplement. We have not authorized
anyone else to provide you with different information. We are not making an
offer of these securities in any jurisdiction where it is unlawful. If anyone
provides you with different or inconsistent information, you should not rely on
it. You should not assume that the information in this prospectus is accurate as
of any date other than the date on the front of this document.
References in this prospectus to the terms "we," "our" or "us" or other
similar terms mean Iron Mountain Incorporated and its consolidated subsidiaries,
unless we state otherwise or the context indicates otherwise.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
We have made and incorporated by reference statements in this document that
constitute "forward-looking statements" as that term is defined in the federal
securities laws. These forward-looking statements concern our operations,
economic performance, goals, beliefs, strategies, objectives, plans, current
expectations and financial condition. The forward-looking statements are subject
to various known and unknown risks, uncertainties and other factors. When we use
words such as "believes," "expects," "anticipates," "estimates" or similar
expressions, we are making forward-looking statements.
Although we believe that our forward-looking statements are based on
reasonable assumptions, our expected results may not be achieved and actual
results may differ materially from our expectations. Important factors that
could cause actual results to differ from expectations include, among others,
those set forth below. For a more detailed discussion of some of these factors,
please read carefully the information under "Risk Factors" beginning on page 2.
o changes in customer preferences and demand for our services;
o changes in the price for our services relative to the cost of
providing such services;
o the cost and availability of financing for contemplated growth;
o our ability or inability to complete acquisitions on satisfactory
terms and to integrate acquired companies efficiently;
o in the various digital businesses on which we are embarking, capital
and technical requirements will be beyond our means, markets for our
services will be less robust than anticipated, or competition will be
more intense than anticipated;
o the possibility that business partners upon whom we depend for
technical assistance or management and acquisition expertise outside
the United States will not perform as anticipated;
o changes in the political and economic environments in the countries in
which our international subsidiaries operate; and
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o other trends in competitive or economic conditions affecting our
financial condition or results of operations not presently
contemplated.
These cautionary statements should not be construed by you to be exhaustive
and they are made only as of the date of this prospectus. You should not rely
upon forward-looking statements except as statements of our present intentions
and of our present expectations, which may or may not occur. You should read
these cautionary statements as being applicable to all forward-looking
statements wherever they appear. We assume no obligation to update the
forward-looking statements or the reasons why actual results could differ from
those projected in the forward-looking statements to reflect events or
circumstances after the date hereof.
OUR COMPANY
We are the leader in records and information management services. We are an
international, full-service provider of records and information management and
related services, enabling customers to outsource these functions. We have a
diversified customer base that includes more than half of the Fortune 500 and
numerous commercial, legal, banking, healthcare, accounting, insurance,
entertainment and government organizations. Our comprehensive solutions help
customers save money and manage risks associated with legal and regulatory
compliance, protection of vital assets, and business continuity challenges.
Our core business records management services include: records management
program development and implementation based on best-practices; secure,
cost-effective storage for all major media, including paper, which is the
dominant form of records storage, flexible retrieval access and retention of
records; digital archiving services for secure, legally compliant and
cost-effective long-term archiving of electronic records; secure shredding
services that ensure privacy and a secure chain of record custody; and
customized services for vital records, film and sound and regulated industries
such as healthcare and financial services.
Our off-site data protection services include: disaster recovery planning,
testing, impact analysis and consulting; secure, off-site vaulting of backup
tapes for fast and efficient data recovery in the event of a disaster, human
error or virus; managed, online data backup and recovery services for personal
computers and server data; and intellectual property escrow services to secure
source code and other proprietary information with a trusted, neutral third
party.
In addition to our core records management and off-site data protection
services, we sell storage materials, including cardboard boxes and magnetic
media, and provide consulting, facilities management, fulfillment and other
outsourcing services.
As of March 31, 2003, we provided services to over 150,000 customer
accounts in 82 markets in the United States and 47 markets outside of the United
States. We employ over 11,500 people and operate nearly 650 records management
facilities in the United States, Canada, Europe and Latin America.
RISK FACTORS
Investing in our securities involves risk. Potential investors are urged to
read and consider the risk factors relating to an investment in Iron Mountain
described in our Securities and Exchange Commission filings, which are
incorporated by reference in this prospectus. Before making an investment
decision, you should carefully consider these risks as well as other information
we include or incorporate by reference in this prospectus. The risks and
uncertainties we have described are not the only ones facing our company.
Additional risks and uncertainties not presently known to us or that we
currently consider immaterial may also affect our business operations.
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DESCRIPTION OF OUR DIRECT STOCK PURCHASE PLAN
The following questions and answers explain and constitute our Direct Stock
Purchase Plan, which we refer to below as the plan.
1. WHAT IS THE PURPOSE OF THE PLAN?
The plan is intended to provide investors with a simple, convenient and
economical method of purchasing shares of our common stock.
In turn, the plan provides us with an economical and flexible mechanism to
raise equity capital through sales of our common stock. To the extent shares of
common stock are purchased directly from us under the plan, we will receive
proceeds that we will use for our general corporate purposes. We will not,
however, receive any proceeds from shares of our common stock that the plan
administrator may purchase, at our direction, in the open market or in
negotiated transactions with third parties in order to supply shares issued to
participants under the plan.
2. WHAT FEATURES ARE AVAILABLE UNDER THE PLAN?
The plan allows participants to:
o make initial cash investments in our common stock in amounts of at
least $1,000 and up to $10,000;
o make additional cash investments in our common stock at any time in
amounts of at least $500 per payment and up to $10,000 per month;
o make additional cash investments in excess of $10,000 per month, but
only after submission of a written request for waiver has been made to
us and after we have given our written approval, which we may grant or
refuse to grant in our sole discretion;
o on investments in excess of $10,000 that we approve, purchase newly
issued shares of our common stock at a discount of up to 5%, as we may
determine from time to time in our sole discretion; and
o have cash dividends, if any, that we pay in the future on our common
stock automatically reinvested in additional shares of our common
stock.
3. WHAT ARE THE ADVANTAGES OF PARTICIPATING IN THE PLAN?
Participants in the plan will enjoy certain benefits:
o You will be able to purchase our common stock without paying any
brokerage commission and, for purchases in excess of $10,000 per
month, potentially at a discount of up to 5%, which discount will be
determined at our sole discretion.
o Your funds will be fully invested because the plan permits fractions
of shares to be credited to your plan account, although fractional
share certificates will not be issued.
o You can be free of cumbersome safekeeping requirements, as our
custodial service will safely hold your shares in book-entry form.
o You will have a simple way of making periodic cash investments in our
company, when and as you choose, in order to build your ownership over
time and also to utilize dollar-cost-averaging if such technique is
part of your general investment strategy.
o You may direct the plan administrator to sell or transfer all or a
portion of the shares held in your plan account and therefore you may
find the plan an economical way to liquidate holdings from time to
time.
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o You will receive periodic statements, called statements of holdings,
reflecting all current activity in your plan account, including
purchases, sales and latest balances, which will simplify your record
keeping.
4. WHAT ARE THE DISADVANTAGES OF MAKING INVESTMENTS IN IRON MOUNTAIN THROUGH
THE PLAN?
The plan may present certain disadvantages to a participant as compared to
investing in our company through a brokerage firm:
o We may, without giving you prior notice, change our determination as
to whether the plan administrator will purchase shares of common stock
directly from us, in the open market or in privately negotiated
transactions from third parties.
o You will not know the actual number of shares purchased in any month
for your account under the plan until after the applicable investment
date.
o Because the investment price may represent an average of numerous
market prices, it may actually exceed the price at which you could
have purchased shares in the open market on the investment date.
o Sales of shares for participants that have made valid sale elections
are made daily when practicable, at specified times and in a manner
designed not to disrupt the market for our common stock. Accordingly,
you may experience delays in the execution of sales of your shares
held in the plan.
o On purchases in excess of $10,000 that we approve, you may not be able
to depend on the availability of a discount on newly issued shares
acquired under the plan. While a discount from market prices of up to
5% may be established for a particular period, a discount for one
period will not ensure the availability of the same discount or any
discount in future periods. For any period we may, without giving you
prior notice, change or eliminate the discount.
o Shares deposited in a plan account may not be pledged. If you desire
to pledge shares deposited in a plan account, you must withdraw the
shares from the plan.
o You will not receive interest on funds held by the plan administrator
pending investment or on funds returned if we suspend or terminate the
plan or if your investment does not meet our minimum threshold or
exceeds $10,000 and is not approved.
5. WHO WILL ADMINISTER THE PLAN?
The plan will be administered by EquiServe Trust Company, N.A.
("EquiServe"), a federally chartered trust institution, or any successor plan
administrator we designate. EquiServe, Inc., an affiliate of EquiServe and a
transfer agent registered with the Securities and Exchange Commission, acts as
service agent for EquiServe. The plan administrator acts as agent for
participants, keeps records of the accounts of participants, sends regular
account statements to participants, and performs other duties relating to the
plan. Shares purchased for each participant under the plan will be held by the
plan administrator and will be registered in the name of the plan administrator
or its nominee, unless and until a participant requests that a stock certificate
for all or part of such shares be issued, as more fully described in this
prospectus. Correspondence with the plan administrator should be sent to:
Iron Mountain Incorporated
c/o EquiServe Trust Company, N.A.
P.O. Box 43010
Providence, RI 02940-3010
Plan participants may also contact the plan administrator by telephoning
toll free (866) 897-1803, 24 hours a day, seven days a week. Customer service
representatives are available between the hours of 9:00 a.m. and 5:00 p.m.,
Eastern Time, Monday through Friday.
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Important Telephone Numbers
TO OBTAIN CALL
Information Concerning Your Plan Account........................ (866) 897-1803
Authorization and enrollment forms ............................. (866) 897-1803
Whether Requests for Waiver are being accepted;
Price and Discount Information............................. (617) 535-4799
Requests for Waiver............................................. (617) 535-4799
6. WHO IS ELIGIBLE TO PARTICIPATE IN THE PLAN?
Our existing shareholders, as well as persons seeking to purchase their
first shares in our company, may participate in the plan.
A registered holder, which means a shareholder whose shares of common stock
are registered in our stock transfer books in his or her name, may participate
in the plan directly. A beneficial owner, which means a shareholder whose shares
are registered in our stock transfer books in a name other than his or her name,
for example, in the name of a broker, bank, or other nominee, must either become
a registered holder by having the shares transferred into his or her name, make
arrangements with his or her broker, bank or other nominee to participate in the
plan on the participant's behalf, or follow procedures for interested investors
who are not already shareholders.
An interested investor that is not currently a shareholder may participate
in the plan by making an initial cash investment in our common stock of not less
than $1,000 and not more than $10,000. In some circumstances, however, we may
permit greater optional cash investments if an appropriate request for waiver is
filed with us and accepted.
The right to participate in the plan is not transferable to another person.
We reserve the right to exclude from participation in the plan persons who use
the plan to engage in short-term trading activities that cause aberrations in
the trading of our common stock. In addition, we reserve the right to treat
optional cash investments submitted with forms reflecting participants with the
same name, address or social security or taxpayer identification number as a
single investment for purposes of determining whether the maximum investment of
$10,000 per month would be exceeded.
If you live outside the United States and are not a citizen, you can
participate in the plan provided there are not any laws or governmental
regulations that would prohibit your participation in the plan. We reserve the
right to terminate participation of any shareholder if we deem it advisable
under any foreign laws or regulations. All plan funds must be in United States
dollars and drawn on a United States financial institution. If you are not in
the United States, please contact your financial institution to verify that they
can provide you with a check that clears through a United States financial
institution and can print the dollar amount in United States dollars. Due to the
longer clearing period, we are unable to accept checks clearing through
non-United States financial institutions. Please contact your local financial
institution for details on how to make the transaction. If we ever pay dividends
to shareholders, all dividends will be subject to withholding under the terms of
any applicable tax treaty provisions. Please see Questions 9 and 13 for
additional information on dividend reinvestment.
Participants residing in jurisdictions, foreign or United States, in which
their participation in the plan would be unlawful will not be eligible to
participate in the plan.
7. HOW DOES AN ELIGIBLE PERSON PARTICIPATE IN THE PLAN?
A person may participate in the plan by following the appropriate procedure
set forth below.
Our Registered Holders
If you are a registered holder of our common stock, you may enroll in the
plan and become a participant by:
o completing and signing a shareholder authorization form; and
o returning it to the plan administrator at the address set forth in
Question 5.
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Please note, that if the shares you currently own are registered in more
than one name, for example, joint tenants or trustees, all registered holders of
such shares must sign the shareholder authorization form exactly as their names
appear on the account registration.
Registered holders may obtain additional information and the necessary
shareholder authorization form at any time by contacting the plan administrator
at the address or phone number set forth in Question 5.
Our Beneficial Owners
If you are a beneficial owner of our common stock and you desire to
participate in the plan, you must:
o instruct the registered holder who holds the shares of common stock on
your behalf, usually a broker, bank or other nominee, to have all or a
portion of those shares registered directly in your name. You would
then follow the procedures described above for registered holders; or
o make arrangements with the broker, bank or other nominee to
participate in the plan on your behalf.
Alternatively, a beneficial holder may enroll in the plan in the same
manner as someone who is not currently an owner of our common stock, as
described in the procedures below for interested investors. Some state
securities laws require that a registered broker-dealer send the information to
their residents. A registered broker-dealer, rather than the plan administrator,
will forward a copy of this prospectus and the enrollment form to residents of
those states.
Interested Investors Who Do Not Currently Own Our Common Stock.
An interested investor who is not presently one of our shareholders, but
desires to become a participant in the plan by making an initial cash investment
in our common stock, may join the plan by:
o completing and signing an initial purchase form; and
o forwarding it, together with a check in the amount of the initial cash
investment of at least $1,000 and not more than $10,000, unless an
appropriate waiver is filed with us and accepted, to the plan
administrator at the address set forth in Question 5.
Any offer to make an initial cash investment greater than $10,000 must be
made in accordance with the procedures described below in Question 17. Initial
cash investments can be made by check payable to "EquiServe - Iron Mountain
Incorporated." All forms of payment must be in United States dollars and drawn
on a United States bank. Cash, money orders, and third party checks will not be
accepted. Investments in excess of $10,000 and approved by us must be made by
wire transfer as described below in Question 17.
Interested investors may obtain additional information and the necessary
initial purchase form at any time by contacting the plan administrator at the
address or phone number set forth in Question 5. Some state securities laws
require that a registered broker-dealer send the information to their residents.
A registered broker-dealer, rather than the plan administrator, will forward a
copy of this prospectus and the enrollment form to residents of those states.
8. WHAT IS THE PURPOSE AND EFFECT OF COMPLETING AND FORWARDING THE SHAREHOLDER
AUTHORIZATION FORM AND THE INITIAL PURCHASE FORM?
The shareholder authorization form and the initial purchase form will
appoint the plan administrator as your agent for purposes of your participation
in the plan. The forms direct the plan administrator to apply any optional cash
investments made by you, whether transmitted with the shareholder authorization
form, the initial purchase form or made at dates subsequent to your enrollment,
to the purchase on your behalf of additional full and fractional shares of our
common stock in accordance with the plan.
9. CAN PLAN PARTICIPANTS REINVEST THE DIVIDENDS, IF ANY, ON THEIR COMMON STOCK
THROUGH THE PLAN?
The shareholder authorization form and the initial purchase form allow
participants to provide for the reinvestment of dividends, if any, through the
following options (in all cases minus any applicable withholding tax):
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o Full dividend reinvestment. This option allows you to reinvest
automatically all cash dividends received on all shares of our common
stock registered in your name and/or held in your plan account.
o Partial dividend reinvestment. This option allows you to receive cash
dividends on a specified number of full shares of our common stock
registered in your name and/or held in your plan account and to
reinvest automatically only the dividends on any remaining shares of
common stock.
o No dividend reinvestment. This option allows you to receive cash
dividends on all shares of our common stock registered in your name
and/or held in your plan account. None of your cash dividends will be
reinvested.
Any one of the above three options may be selected. In each case, cash
dividends, if any, will be reinvested on all shares designated for participation
in the plan until the participant specifies otherwise or withdraws from the plan
altogether, or until the plan is terminated. Participation in the dividend
reinvestment portion of the plan will commence with the next dividend payment
date after the plan administrator receives your shareholder authorization form
or initial purchase form, as the case may be, provided that the plan
administrator receives the form on or prior to the record date for such dividend
payment. If the plan administrator does not receive your shareholder
authorization form or initial purchase form on or prior to the record date for a
particular dividend payment, participation in the dividend reinvestment portion
of the plan may not commence until the following dividend payment date.
A participant may change his or her dividend reinvestment election at any
time by contacting the plan administrator. Changes in the dividend reinvestment
election will be effective for a particular dividend payment date provided the
request is received prior to the related dividend record date. If a change in
the dividend reinvestment election is not received prior to the related dividend
record date, the change will not be effective until the following dividend
payment date.
Notwithstanding our discussion of your ability to reinvest dividends, it is
unlikely that we will pay cash dividends in the foreseeable future and nothing
in this prospectus is intended to indicate otherwise.
Any participant who returns a properly executed shareholder authorization
form or initial purchase form to the plan administrator without electing a
dividend reinvestment option will be enrolled as having selected full dividend
reinvestment.
10. WHAT ARE THE EXPENSES OF THE PLAN, AND WHO PAYS THEM?
We will pay all fees, brokerage commissions, and related expenses
associated with the purchase of common stock in the open market or in negotiated
transactions with third parties on behalf of participants. Shares for the plan
purchased directly from us will not involve brokerage commissions or trading
fees. There is, however, a one-time enrollment fee of $10.00 which will be
deducted from the initial investment of interested investors who are not already
shareholders of Iron Mountain.
In the event that any form of payment is returned unpaid for any reason,
such as a returned check, the participant will be subject to a $25.00 fee which
will be deducted from the participant's plan account. This fee and any other
incidental costs associated with the insufficient funds will be collected by our
plan administrator through the sale of an appropriate number of shares from your
plan account.
In addition, participants that request the sale of any of their shares held
in the plan must pay a service fee equal to $15.00 per sale, plus a commission
currently equal to $0.12 per share sold plus any applicable taxes. The plan
administrator may effect any sales of shares for the plan through a
broker-dealer, in which case the broker-dealer will receive the commission for
effecting the transaction.
The plan administrator may also charge participants for additional services
not provided under the plan. Brokers or nominees that participate on behalf of
beneficial owners for whom they are holding shares may charge such beneficial
owners additional fees in connection with such participation, for which neither
the plan administrator nor we will be responsible.
Participation in the plan is voluntary and a participant may discontinue
his or her participation at any time.
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11. WHAT ARE THE SOURCES OF SHARES PURCHASED UNDER THE PLAN?
Purchases of shares of our common stock by the plan administrator for
participants in the plan may be made, at our election, either (1) directly from
us out of our authorized but unissued shares of common stock or treasury stock,
or (2) in the open market or in negotiated transactions with third parties.
12. WHEN ARE SHARES PURCHASED UNDER THE PLAN; WHAT IS THE INVESTMENT DATE?
Purchases of shares of common stock made with initial cash payments from
enrolling investors and with optional cash payments from current shareholders
will begin on an investment date which will be the 1st and 15th of each month
(if this date is not a trading day on the New York Stock Exchange, then the
investment date will be the next trading day), except that an investment date
for investments in excess of $10,000 pursuant to requests for waiver that we
have approved will occur only once a month, if at all, on a day that we set at
the beginning of the month, which will be the end of the pricing period for such
month.
The plan administrator will use cash investments to purchase shares of
common stock during the relevant investment period. Purchases may be made over a
number of days to meet the requirements of the plan. No interest will be paid on
funds held by the plan administrator pending investment. The plan administrator
may commingle your funds with those of other participants in the plan for
purposes of executing purchase transactions.
Because the plan administrator will purchase shares on behalf of the plan,
neither we nor any participant in the plan has the authority or power to control
either the timing or pricing of the shares purchased. Therefore, you will not be
able to precisely time your purchases through the plan, and you will bear the
market risk associated with fluctuations in the price of our common stock. That
is, if you send in an investment, it is possible that the market price of our
common stock could go up or down before the plan administrator arranges to
purchase stock with your funds.
For investments that do not exceed $10,000, the plan administrator will use
its best efforts to apply all funds to the purchase of shares before the next
investment date, subject to any applicable requirements of federal or state
securities laws. Purchases of our shares of common stock by the plan
administrator on the open market or in negotiated transactions with third
parties usually will be completed no later than 30 days after the applicable
investment date, except where completion at a later date is necessary or
advisable under any applicable securities laws or regulations; provided,
however, investments under $10,000 that are not invested within 35 days of
receipt will be returned. Shares of common stock purchased on the open market or
in negotiated transactions with third parties will be credited to participating
accounts as soon as practicable after all purchases for the investment date are
completed. Shares issued and sold by us will be credited on the investment date.
Pursuant to an approved request for waiver, the plan administrator will
only acquire shares of common stock directly from us out of our authorized but
unissued shares of common stock or treasury shares. Newly issued shares or
treasury shares purchased with investments over $10,000 will be posted to
participants' accounts as of the investment date determined by us at the
beginning of each month.
If dividends are declared at some time in the future, the investment date
for the reinvestment of dividends will be the dividend payment date, (if this
date is not a trading day on the New York Stock Exchange, then the investment
date will be the next trading day). Purchases with dividend investments will
begin on the investment date. Newly issued shares or treasury shares will be
posted to participants' accounts as of the investment date. Purchases with
dividend investments in the open market or in negotiated transactions with third
parties, however, will be posted to participants' accounts after the settlement
period. Settlement normally occurs three business days after the investment is
completed. Dividends that are not invested within 30 days of the dividend date
will be paid to the participant.
The plan administrator must receive cash investments, other than
investments pursuant to requests for waiver, no later than two business days
before the investment date for those investments to be invested in our common
stock beginning on that investment date. Otherwise, the plan administrator may
hold those funds and invest them beginning on the next investment date. No
interest will be paid on funds held by the plan administrator pending
investment. Accordingly, you may wish to transmit any investments so that they
reach the plan administrator shortly -- but not less than two business days --
before the investment date. This will minimize the time period during which your
funds are not invested. Participants have an unconditional right to obtain the
return of any cash payment up to two business days prior to the investment date
by sending a written request to the plan administrator.
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Please note that participants will not be able to instruct the plan
administrator to purchase shares at a specific time or at a specific price.
13. HOW IS THE PRICE DETERMINED FOR SHARES ACQUIRED THROUGH DIVIDEND
REINVESTMENT?
The plan will acquire shares for participants who have elected to reinvest
all or a portion of their dividends if, at some time in the future, a dividend
is declared by our board of directors. Purchases of shares of our common stock
through the reinvestment of dividends, if any are declared, will begin on the
investment date. The purchase price of shares acquired through the plan through
the reinvestment of dividends will be equal to:
o in the case of newly issued shares or treasury shares of our common
stock, the average of the high and low sale prices of our common stock
as reported by the New York Stock Exchange-only, on the investment
date. If no trading is reported for the investment date, the purchase
price will be equal to the average of the high and low sale prices of
our common stock as reported by the New York Stock Exchange-only, on
the trading day immediately prior to the investment date; or
o in the case of shares purchased in the open market or in privately
negotiated transactions, the weighted average price of all shares
purchased with the dividend funds.
14. WHAT LIMITATIONS AND EXCEPTIONS APPLY TO OPTIONAL CASH INVESTMENTS?
Minimum/Maximum Limits
For any investment date, optional cash investments made by our shareholders
are subject to a minimum of $500 per payment. In addition, optional cash
investments by our shareholders are subject to a maximum of $10,000 per month,
unless a request for waiver has been approved as described below. Optional cash
investments made by interested investors who are not then shareholders of our
company are subject to a minimum initial investment of $1,000 and a maximum of
$10,000, unless a request for waiver has been approved.
Optional cash investments of less than the allowable minimum amount and
that portion of any optional cash investment that exceeds the allowable monthly
maximum amount will be returned, except as noted below, promptly to
participants, without interest. Optional cash investments submitted by brokerage
firms or other nominees on behalf of a participant may be aggregated for
purposes of determining whether the $10,000 limit will be exceeded. In addition,
we reserve the right to treat optional cash investments submitted on forms
reflecting participants with the same name, address or social security or
taxpayer identification number as a single investor for purposes of determining
whether the $10,000 limit would be exceeded. Please note that dividend funds, if
any, will not be combined with optional cash investments in determining whether
the $10,000 limit has been exceeded.
15. HOW ARE INVESTMENTS FOR $10,000 OR LESS MADE?
All participants, including brokers, banks and nominees with respect to
shares registered in their name on behalf of beneficial owners, are eligible to
make optional cash investments at any time. Other interested investors that are
not shareholders of our company are also eligible to make initial investments in
our common stock at any time by submitting an initial purchase form and funds
representing their desired initial investments.
The plan administrator will apply all investments under $10,000 per month
by check, for which good funds are received at least two business days before
the investment date for those investments to be invested in our common stock
beginning on that investment date. If good funds are received by the plan
administrator by checks after this deadline, they will not be invested until the
next following investment date. No interest will be paid on any funds pending
investment. All optional cash investments are subject to collection by the plan
administrator for full face value in United States dollars.
Newly issued shares or treasury shares will be posted to participants'
accounts as of the investment date. Purchases in the open market or in
negotiated transactions with third parties, however, will be posted to
participants' accounts after the settlement period. Settlement normally occurs
three business days after the investment is completed.
There is no obligation to make an optional cash investment at any time, and
the amount of such investments may vary from time to time.
All optional cash investments made by check should be made payable to:
"EquiServe - Iron Mountain Incorporated"
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and mailed to the plan administrator, along with the cash investment or other
transaction form attached to the bottom of each statement of holdings, at the
address listed on the form. Due to the longer clearance period, the plan
administrator is unable to accept checks clearing through non-United States
banks. Any checks not drawn on a United States bank or not payable in United
States dollars will be returned to the participant, as will any cash, money
order or third party checks. If you are not in the United States, contact your
bank to verify that they can provide you with a check that clears through a
United States bank and can print the dollar amount in United States funds. All
inquiries should be directed to the plan administrator as set forth in Question
5.
In the event that any form of payment is returned unpaid for any reason,
the plan administrator will consider the request for investment of such funds
null and void and shall immediately remove from the participant's account
shares, if any, purchased upon the prior credit of such funds. The plan
administrator shall then be entitled to sell those shares to satisfy any
uncollected amounts. If the net proceeds of the sale of these shares are
insufficient to satisfy the balance of the uncollected amounts, the plan
administrator shall be entitled to sell such additional shares from the
participant's account necessary to satisfy the uncollected balance. Any deposit
returned unpaid will be subject to a $25.00 fee that will be deducted from the
participant's account, as described above in Question 10.
16. HOW IS THE PRICE DETERMINED FOR INVESTMENTS OF $10,000 OR LESS?
Each month the plan will acquire shares for participants who have made
valid and timely cash investments during that month.
The purchase price of shares acquired through the plan with cash
investments of $10,000 or less during any month will be equal to:
o in the case of newly issued shares or treasury shares of our common
stock, the average of the high and low sale prices of our common stock
as reported by the New York Stock Exchange-only on the investment
date. If no trading is reported for that trading day, the purchase
price will be equal to the average of the high and low sale prices of
our common stock as reported by the New York Stock Exchange-only on
the trading day immediately prior to the investment date; or
o in the case of shares purchased in the open market or in privately
negotiated transactions, the weighted average price of all shares
purchased.
17. HOW ARE INVESTMENTS IN EXCESS OF $10,000 MADE?
Investments in excess of $10,000 per month may be made only pursuant to a
request for waiver accepted by us.
Participants may ascertain whether we are accepting requests for waiver in
any given month, and certain other important information, by telephoning
Investor Relations on the first business day of each month at (617) 535-4799 or
such other number as we may establish from time to time. When participants
telephone Investor Relations on the first business day of each month, we will
inform such participants of one of the three following pieces of information:
(1) that we will not be accepting requests for waiver that month; or
(2) that we will be accepting requests for waiver that month. If this is
the case, we will either (a) provide relevant information such as the date the
pricing period will begin; the number of days in the pricing period; the
threshold price, if any; the waiver discount, if any; and whether we have
established a reverse auction procedure, or (b) inform participants of a date
later in the month when they can call to obtain this relevant information; or
(3) that we have not yet determined whether we will be accepting requests
for waiver. If this is the case, we will inform participants of a date later in
the month when they can call to inquire as to whether we will be accepting
requests for waiver.
We will decide whether to accept requests for waiver at least three days
prior to the commencement of the applicable pricing period, as is further
explained in Question 18.
We must receive a request for waiver no later than 2:00 p.m., New York City
time, on the third business day before the first day of the relevant pricing
period. Participants who wish to make an investment in excess of $10,000 in any
given month, including those whose proposed investments have been aggregated so
as to exceed
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$10,000, must obtain our prior written approval, which will be given or rejected
on or before the second business day prior to the first day of the pricing
period, and a copy of such written approval must accompany any such investment.
Good funds for such investments exceeding $10,000 per month must be received by
the plan administrator no later than one business day prior to the first day of
the pricing period. To obtain a request for waiver or additional information, a
participant may call Investor Relations at the number above. Completed requests
for waiver should be faxed directly to Investor Relations at (617) 535-7881 or
such other number as we may establish from time to time.
We also may make the foregoing information available on the Investor
Relations segment of our website at http://www.ironmountain.com or on another
website as we may establish for this purpose from time to time. The website may
also contain a form for submitting a request for waiver via electronic mail.
We have sole discretion to grant any approval for investments in excess of
the allowable maximum amount. In deciding whether to approve a request for
waiver, we will consider relevant factors including, but not limited to:
o whether the plan is then purchasing newly issued shares or treasury
shares of our common stock, or is purchasing shares of our common
stock in the open market,
o our need for additional funds,
o the attractiveness of obtaining such additional funds through the sale
of our common stock as compared to other sources of funds,
o the purchase price likely to apply to any sale of common stock,
o the participant submitting the request,
o the extent and nature of such participant's prior participation in the
plan,
o the number of shares held of record by such participant, and
o the aggregate amount of optional cash investments in excess of $10,000
for which requests for waiver have been submitted by all participants.
If requests for waiver are submitted for any investment date for an
aggregate amount in excess of the amount we are then willing to accept, we may
honor such requests in order of receipt, pro rata or by any other method that we
determine, in our sole discretion, to be appropriate.
We reserve the right to modify, suspend or terminate participation in the
plan by otherwise eligible registered holders or beneficial owners of our common
stock for any reason whatsoever, including elimination of practices that are not
consistent with the purposes of the plan.
18. HOW IS THE PRICE DETERMINED FOR INVESTMENTS IN EXCESS OF $10,000 PURSUANT
TO A REQUEST FOR WAIVER?
Pricing Period and Purchase Price Determination
The trading period over which the investment price is calculated for
purchases in excess of $10,000 per month is referred to as the pricing period.
You may ascertain all relevant information regarding the pricing period and
purchase price determination by telephoning Investor Relations at (617) 535-4799
or at such other number as we may establish from time to time, as is explained
in Question 17.
The purchase price of shares of our common stock purchased pursuant to a
request for waiver will be the volume weighted average price of our common stock
reported by the New York Stock Exchange-only, from Bloomberg, LP for the trading
hours from 9:30 a.m. to 4:00 p.m., New York City time, for each trading day
during the relevant pricing period, less any applicable waiver discount as
described below, calculated pro rata on a daily basis. For example, if a cash
investment of $10 million is made pursuant to an approved request for waiver for
a pricing period of 10 trading days, the number of shares will be calculated for
each day of the pricing period by taking a pro rata portion of the total cash
investment for each day of the pricing period, which would be $1 million, and
dividing it by the volume weighted average price of our common stock reported by
the New York Stock
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Exchange-only, obtained from Bloomberg, LP, (unless such service is unavailable,
in which case we will designate another service to be utilized prior to the
beginning of the pricing period) rounded to three decimal places, if necessary,
for the trading hours from 9:30 a.m. to 4:00 p.m., New York City time, less any
applicable discount. On the last day of the pricing period, or the investment
date, the total investment amount, $10 million, will be divided by the total
number of shares acquired over the 10 days (assuming the threshold price is met)
in order to establish the purchase price.
The plan administrator will apply all investments pursuant to requests for
waiver that are approved by us and that are received by the plan administrator
on or before the first business day before the first day of the relevant pricing
period to the purchase of shares of our common stock on the investment date we
set at the beginning of the month for such approved investments. All such
investments received after the close of business on the first business day
before the first day of the relevant pricing period will be returned without
interest.
Optional Pricing Period Extension Feature
We may elect to activate for any given pricing period the pricing period
extension feature which will provide that the initial pricing period will be
extended by the number of days that the threshold price is not satisfied, or on
which there are no trades of our common stock reported by the New York Stock
Exchange-only, subject to a maximum of five days. If the threshold price is
satisfied for any additional day that has been added to the initial pricing
period, that day will be included as one of the trading days for the pricing
period in lieu of the day on which the threshold price was not met or trades of
our common stock were not reported. For example, if the determined pricing
period is 10 consecutive business days, and the threshold price is not satisfied
for three out of those 10 days in the pricing period, and we had previously
announced at the time of the waiver request acceptance that the optional pricing
period extension feature was activated, then the pricing period will
automatically be extended, and if the threshold price is satisfied on the next
three trading days, then those three days will be included in the pricing period
in lieu of the three days on which the threshold price was not met. As a result,
the purchase price will be based upon the 10 trading days of the initial and
extended pricing period on which the threshold price was satisfied and all of
the optional cash investment will be invested (rather than 30% being returned to
the participant). Participants may ascertain whether the pricing period
extension feature has been activated for any given pricing period by telephoning
Investor Relations at (617) 535-4799 or at such other number as we may establish
from time to time, at the conclusion of the original pricing period.
Threshold Price with Respect to Optional Cash Investments Made Pursuant to
Requests for Waiver
We may establish for any pricing period a threshold price applicable to
investments made pursuant to requests for waiver. At least three business days
prior to the first day of the applicable pricing period, we will determine
whether to establish a threshold price and, if a threshold price is established,
its amount, and will so notify the plan administrator. This determination will
be made by us in our sole discretion after a review of current market
conditions, the level of participation in the plan, and current and projected
capital needs. Participants may ascertain whether a threshold price has been set
or waived for any given pricing period and any applicable discount by
telephoning Investor Relations at (617) 535-4799 or at such other number as we
may establish from time to time, as is explained in Question 17.
If established for any pricing period, the threshold price will be stated
as a dollar amount that the volume weighted average price of our common stock
reported by the New York Stock Exchange-only, obtained from Bloomberg, LP
(unless such service is unavailable, in which case we will designate another
service to be utilized prior to the beginning of the pricing period) for the
trading hours from 9:30 a.m. to 4:00 p.m., Eastern Time, must equal or exceed on
each trading day of the relevant pricing period. In the event that the threshold
price is not satisfied for a trading day in the pricing period or there are no
trades of our common stock reported by the New York Stock Exchange-only for a
trading day, then that trading day will be excluded from the pricing period with
respect to optional cash investments made pursuant to requests for waiver, and
all trading prices for that day will be excluded from the determination of the
purchase price. For example, if the threshold price is not satisfied for two of
the 10 trading days in a pricing period, then the purchase price will be based
upon the remaining eight trading days on which the threshold price was
satisfied, unless we have activated the pricing period extension feature for the
pricing period as described above under "--Optional Pricing Period Extension
Feature."
In addition, a pro rata portion of each investment made pursuant to a
request for waiver will be returned for each trading day of a pricing period on
which the threshold price is not satisfied or for each trading day on which no
trades of shares or common stock are reported on the New York Stock
Exchange-only, as soon as reasonably practicable after the pricing period
without interest, subject to the effect of an optional pricing period extension
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feature as described above under "--Optional Pricing Period Extension Feature."
The returned amount will equal the total amount of the investment multiplied by
a fraction, the numerator of which is the number of trading days that the
threshold price is not satisfied or trades of our common stock are not reported
on the New York Stock Exchange-only and the denominator of which is the number
of trading days in the pricing period. For example, if the threshold price is
not satisfied or if no sales are reported for one of 10 trading days in a
pricing period, one-tenth of the optional investment will be returned. All such
funds will be returned as soon as reasonably practicable after the pricing
period without interest.
The establishment of the threshold price and the possible return of a
portion of the investment applies only to optional cash investments made
pursuant to a request for waiver but applies to the entire amount of the
optional cash investment, including the first $10,000. Setting a threshold price
for a pricing period shall not affect the setting of a threshold price for any
subsequent pricing period. We may waive our right to set a threshold price for
any pricing period. Neither we nor the plan administrator will be required to
provide any written notice to participants as to the threshold price for any
pricing period. Participants may, however, ascertain whether a threshold price
has been set or waived for any given pricing period and any applicable discount
by telephoning Investor Relations at (617) 535-4799 or at such other number as
we may establish from time to time.
Waiver Discount
We may, in our sole discretion, establish a "waiver discount" of 0% to 5%
from the market price applicable to optional investments made pursuant to
requests for waiver. The waiver discount will not vary for any pricing period.
We will determine, in our sole discretion, whether to establish a waiver
discount after a review of current market conditions, the level of participation
and our current and projected capital needs. At least three business days before
the first day of the applicable pricing period, we will determine whether to
establish a waiver discount and, if a waiver discount is established, its
amount, and will notify the plan administrator. Neither we nor the plan
administrator will be required to provide any written notice of the waiver
discount, if any, for any pricing period. We also reserve the right to establish
a reverse auction procedure by which participants seeking to make optional cash
investments under a waiver may submit to us a "bid" with respect to the discount
at which they are willing to make the optional cash investment. Participants may
ascertain whether we have established a waiver discount, the amount of such
discount and whether we have established a reverse auction procedure for any
pricing period by telephoning Investor Relations at (617) 535-4799 or at such
other number as we may establish from time to time, as is explained in Question
17.
19. IN WHAT SITUATIONS WILL AN INVESTMENT BE RETURNED TO A PARTICIPANT?
The plan administrator will return optional cash investments of $10,000 or
less to a participant provided the plan administrator receives a written request
at least two business days prior to the investment date. Optional cash
investments of $10,000 or less will be returned by check, without interest, as
soon as reasonably practicable. Please note that optional cash investments
greater than $10,000 for which a participant has received an approved request
for waiver will not be returned to a participant, except for as described in
Question 18 under "--Threshold Price With Respect to Optional Cash Investments
Made Pursuant to Requests for Waiver." Question 12 further provides for returns
of optional and initial cash investments if such investments are not invested,
for whatever reason, within 35 days of receipt of funds. Additionally, Question
12 provides that cash dividends will be disbursed if not invested within 30 days
after the dividend payment date.
20. WHAT IF A PARTICIPANT HAS MORE THAN ONE ACCOUNT IN THE PLAN?
For the purpose of the limitations discussed in this prospectus, we reserve
the right to aggregate all optional investments for participants with more than
one account using the same name, address or social security or taxpayer
identification number. For participants unable to supply a social security or
taxpayer identification number, participation may be limited by us to only one
plan account. Also for the purpose of such limitations, all plan accounts that
we believe to be under common control or management or to have common ultimate
beneficial ownership may be aggregated. In the event we exercise our right to
aggregate investments and the result would be an investment in excess of $10,000
without an approved request for waiver, we will return, without interest, as
promptly as practicable, any amounts in excess of the investment limitations.
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21. WILL CERTIFICATES BE ISSUED TO PARTICIPANTS FOR THE SHARES OF OUR COMMON
STOCK PURCHASED UNDER THE PLAN?
All shares purchased pursuant to the plan will be held in "book entry" form
through accounts maintained by the plan administrator. This serves to protect
against the loss, theft or destruction of certificates evidencing shares.
Participants may contact the plan administrator at the address or telephone
number set forth in Question 5 above, or may utilize the cash investment and
other transaction form attached to the bottom of each statement of holdings, to
request a certificate for all or a portion of the whole shares held in
book-entry form. Upon such a request, the plan administrator will, within two
business days of receipt of the request, issue and mail certificates for the
whole shares credited to that participant's account. Certificates will be issued
only in the same names as those enrolled in the plan. In no event will
certificates for fractional shares be issued.
If a participant requests a certificate for whole shares of our common
stock held in his or her account, distributions on those shares will continue to
be reinvested or paid in cash, as elected by the participant, under the plan in
the same manner as prior to the request so long as the shares of common stock
remain registered in the participant's name.
22. MAY A PARTICIPANT DEPOSIT WITH THE PLAN ADMINISTRATOR CERTIFICATES FOR
SHARES WHICH HE OR SHE ALREADY OWNS OUTSIDE THE PLAN?
Yes, if the certificates are unrestricted. Whether or not the participant
has previously authorized reinvestment of dividends, certificates registered in
the participant's name that do not bear any legend restricting transfer may be
surrendered to the plan administrator for deposit in the participant's plan
account. If a participant desires to deposit certificates for shares of our
common stock with the plan administrator, the participant may contact the plan
administrator at the address or telephone number listed in Question 5 for the
proper procedure.
23. CAN PARTICIPANTS SELL SHARES HELD UNDER THE PLAN?
Participants may contact the plan administrator in order to request the
sale of all or a portion of the shares held in their plan account. Following
receipt of instructions from a participant, the plan administrator will sell
those shares as soon as practicable and will remit a check for the proceeds of
such sale, less a service fee equal $15.00, brokerage commissions and any
applicable taxes.
Shares to be sold will be aggregated by the plan administrator and
generally sold within five business days. The sales price per share will be
equal to the weighted average price of all shares sold on the trading day, less
brokerage commissions, which are currently equal to $0.12 per share.
All sale request having an anticipated market value of $100,000.00 or more,
and all sale requests received by the plan administrator within 30 days of an
address change to a participant's plan account, must be submitted in written
form to the plan administrator.
Please note that the plan administrator is not able to accept instructions
to sell on a particular date or at a specific price.
24. CAN A PARTICIPANT TRANSFER SHARES HELD IN THE PLAN TO SOMEONE ELSE?
Participants may transfer ownership of a portion or all of the shares held
in their plan accounts. Participants should contact the plan administrator at
the address or telephone number listed in Question 5 for detailed transfer
instructions.
25. WHAT HAPPENS IF A PARTICIPANT SELLS OR TRANSFERS SHARES OR ACQUIRES
ADDITIONAL SHARES?
If a participant has elected to have dividends automatically reinvested in
the plan and subsequently sells or transfers all or any part of the shares
registered in the participant's name, automatic reinvestment will continue in
accordance with the participant's instructions as long as shares are registered
in the name of the participant or held for the participant by the plan
administrator or until termination of participation or the participant specifies
otherwise. Similarly, if a participant has elected the "Full Dividend
Reinvestment" option under the plan and subsequently acquires additional shares
registered in the participant's name, dividends paid on such shares will
automatically be reinvested until termination of participation or the
participant specifies otherwise. If, however, a
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participant has elected the "Partial Dividend Reinvestment" option and
subsequently acquires additional shares that are registered in the participant's
name, dividends will be reinvested according to the participant's instructions
as given on the most recent shareholder authorization form. Participants may
change their dividend reinvestment elections by submitting a new shareholder
authorization form or by contacting the plan administrator. However, we remind
you that it is unlikely we will pay cash dividends in the foreseeable future.
26. WHAT REPORTS ARE SENT TO PARTICIPANTS?
After any activity occurs relating to a participant's plan account, the
participant will be sent a statement of holdings that will provide a record of
the costs of the shares of our common stock purchased or the price of the shares
sold for that account, the purchase or sale date and the number of shares of
common stock then credited to that account. We recommend that you retain these
statements for income tax and general record keeping purposes.
In addition, each participant will be sent our annual report, notice of
annual meeting and proxy statement, and income tax information for reporting
distributions received. All reports and notices from the plan administrator will
be addressed to the participant's last known address. Participants should notify
the plan administrator promptly of any change of address.
27. MAY A PARTICIPANT TERMINATE HIS OR HER PLAN ACCOUNT?
Yes, a participant may terminate his or her plan account by contacting the
plan administrator at the address or telephone number listed in Question 5 or by
utilizing the cash investment and other transaction form attached to each
statement of holdings. Participation will be terminated as soon as practicable
provided the request is received at least two business days prior to the payable
date for a dividend payment. If the request is received less than two business
days prior to the payable date for a dividend payment, the termination may be
postponed until after the reinvestment of any dividends on the dividend payment
date. After that time all cash dividends, if any, on shares owned by such
participant will be sent to the participant.
If a participant's plan account balance falls below one full share, the
plan administrator reserves the right to liquidate the fraction and remit the
proceeds, less any applicable fees and brokerage commissions, to the participant
at its address of record.
28. WHAT HAPPENS WHEN A PARTICIPANT TERMINATES AN ACCOUNT?
As soon as practicable after notice of termination is received, the plan
administrator will send to the participant (1) a certificate evidencing all
whole shares of our common stock held in the account and (2) a check
representing the value of any fractional shares of our common stock held in the
account, less any brokerage commission. After an account is terminated, we will
pay all distributions for the terminated account to the participant unless the
participant re-elects to participate in the plan.
When terminating an account, the participant may request that all shares of
our common stock, both whole and fractional, held in the plan account be sold,
or that certain of the shares of such common stock be sold and a certificate be
issued for the remaining whole shares. The plan administrator will remit to the
participant the proceeds of any sale of shares of our common stock, less the
fees and commissions listed in Questions 10 and 23. The sale price per share
will be equal to the weighted average price of all shares sold on the trading
day, less brokerage commissions, which are currently $0.12 per share.
29. WHEN MAY A FORMER PARTICIPANT RE-ELECT TO PARTICIPATE IN THE PLAN?
Generally, any former participant may re-elect to participate at any time.
However, the plan administrator reserves the right to reject any authorization
form on the grounds of excessive joining and withdrawing. This reservation is
intended to minimize unnecessary administrative expense and to encourage use of
the plan as a long-term investment service.
30. WHAT ARE THE FEDERAL INCOME TAX CONSEQUENCES OF PARTICIPATING IN THE PLAN?
The federal income tax consequences resulting from optional cash
investments are uncertain. Participants may be deemed to receive a distribution
from us upon the purchase of shares pursuant to the plan in an amount equal to
the excess, if any, of the fair market value of the shares acquired on the
investment date plus the participant's share of any fees paid by us, over the
purchase price for the shares. The fair market value of shares acquired on an
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investment date is not likely to differ from the amount of optional cash
investment by participants making investments not exceeding $10,000 in any
single month. Participants making investments exceeding $10,000 in a single
month who are eligible for a discount may be more likely to have a difference
between the fair market value of shares acquired on an investment date and the
amount of optional cash investment.
Any such deemed distribution will be treated as a taxable dividend to the
extent attributable to our current or accumulated earnings and profits and then
only if other shareholders receive or are deemed to receive distributions of
cash or other property from us. If the deemed distribution is taxable as a
dividend, the shares purchased under the plan will have a tax basis equal to the
amount of the optional cash investment plus the amount of the deemed
distribution, if any, which is treated as a taxable dividend. If the deemed
distribution is not treated as a taxable dividend, the effect of such
distribution on a shareholder's basis in his shares is uncertain. If the
distribution is treated as made solely with respect to the newly acquired
shares, or if the shareholder does not own other shares of our common stock at
the time of the optional cash investment, the basis of such newly acquired
shares will generally equal the amount paid for such shares. However, if the
distribution is treated as made with respect to both the newly acquired shares
(or fraction thereof) and the other shares of our common stock held by such
shareholder, the basis of the newly acquired shares (or fraction thereof) may
exceed the amount paid for such shares and the basis for the shares held prior
to the optional investment would be correspondingly reduced. In any event, the
aggregate bases for all of a shareholder's shares of our common stock will be
equal to the aggregate bases for the shares previously owned plus the amount
paid for the newly acquired shares. Finally, it is unclear as to whether any
gain or loss realized with respect to a deemed nondividend distribution in
excess of stock basis would be calculated on a per-share basis or on an
aggregate basis for all of the holder's shares, including the shares, or
fraction thereof, purchased under the plan.
As to reinvested dividends, participants will be treated as having received
a distribution from us equal to the fair market value on the investment date of
the shares, if any, acquired with reinvested dividends pursuant to the plan plus
the participant's share of any fees paid by us. Such distribution will be
treated as a taxable dividend to the extent attributable to our current or
accumulated earnings and profits. If we do not have earnings and profits, any
excess will first be treated as a tax-free return of capital, causing a
reduction in the basis of existing shares, and the balance will be treated as
capital gain recognized on a sale or exchange. A participant's tax basis in the
distributed shares will equal the fair market value of such shares on the
investment date plus the participant's share of any fees paid by us.
A participant's holding period for shares acquired pursuant to the plan
will begin on the day following the date on which the shares are credited to the
participant's account. When a participant receives certificates for whole shares
credited to the participant's account under the plan, the participant will not
realize any taxable income. However, a participant that receives a cash
adjustment for a fraction of a share will realize a gain or loss with respect to
such fraction. A gain or loss also will be realized by the participant whenever
whole shares are sold, either pursuant to the participant's request, upon
withdrawal from the plan or after withdrawal from the plan. The amount of such
gain or loss will be the difference between the amount that the participant
receives for the shares or fraction of a share and the tax basis of the
participant in the shares.
THE FOREGOING IS ONLY A SUMMARY OF THE FEDERAL INCOME TAX CONSEQUENCES OF
PARTICIPATION IN THE PLAN AND DOES NOT CONSTITUTE TAX ADVICE. THIS SUMMARY IS
BASED ON THE CURRENT STATE OF FEDERAL LAW AND DOES NOT TAKE INTO ACCOUNT
POSSIBLE CHANGES IN SUCH LAW. ANY SUCH CHANGES MAY HAVE RETROACTIVE EFFECT AND
MAY ADVERSELY AFFECT THE DISCUSSION IN THIS SUMMARY. THIS SUMMARY DOES NOT
ADDRESS THE SPECIAL TAX CONSEQUENCES THAT MAY BE APPLICABLE TO CERTAIN
PARTICIPANTS SUBJECT TO SPECIAL TAX TREATMENT (INCLUDING TAX-EXEMPT
ORGANIZATIONS, BROKERS, DEALERS AND FOREIGN SHAREHOLDERS). THIS SUMMARY DOES NOT
REFLECT EVERY POSSIBLE OUTCOME THAT COULD RESULT FROM PARTICIPATION IN THE PLAN
AND, THEREFORE, PARTICIPANTS ARE ADVISED TO CONSULT THEIR OWN TAX ADVISORS FOR
FURTHER INFORMATION WITH RESPECT TO THE FEDERAL, FOREIGN, STATE AND LOCAL TAX
CONSEQUENCES OF PARTICIPATION IN THE PLAN.
31. HOW ARE THE PARTICIPANT'S SHARES OF COMMON STOCK VOTED AT SHAREHOLDER
MEETINGS?
The plan administrator will send participants proxy materials, including a
proxy card, relating to both the shares for which participants hold physical
certificates and the whole shares of our common stock held in their plan
accounts. Shares will be voted at shareholder meetings as that participant
directs by proxy. Shares of our common stock may also be voted in person at the
meeting.
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32. WHAT IS THE RESPONSIBILITY OF IRON MOUNTAIN AND THE PLAN ADMINISTRATOR
UNDER THE PLAN?
We and the plan administrator, in administering the plan, are not liable
for any act done in good faith or for any good faith omission to act, including,
without limitation, any claim of liability:
o with respect to the prices and times at which shares of our common
stock are purchased or sold for a participant; or
o with respect to any fluctuation in market value before or after any
purchase or sale of shares of our common stock; or
o arising out of any failure to terminate a participant's account upon
that participant's death prior to the plan administrator's receipt of
notice in writing of the death.
Neither we nor the plan administrator can provide any assurance of a profit, or
protect a participant from a loss, on shares of our common stock purchased under
the plan. These limitations of liability do not affect any liabilities arising
under the federal securities laws, including the Securities Act.
The plan administrator may resign as plan administrator of the plan at any
time, in which case we will appoint a successor plan administrator. In addition,
we may replace the plan administrator with a successor plan administrator at any
time.
33. WHAT HAPPENS IF WE MAKE A DISTRIBUTION OF SHARES OF COMMON STOCK OR SPLIT
OUR SHARES?
If there is a distribution payable in shares of our common stock or a
common stock split, the plan administrator will receive and credit to the
participant's plan account the applicable number of whole and/or fractional
shares of common stock based on the number of shares of common stock held in the
participant's plan account and registered in the participant's name. If we
effect a reverse stock split, the number of shares held in each participant's
plan account will be proportionately reduced.
34. WHAT HAPPENS IF WE HAVE A RIGHTS OFFERING?
If we have a rights offering in which separately tradable and exercisable
rights are issued to registered holders of shares of our common stock, we will
transfer the rights attributable to whole shares of our common stock held in a
participant's plan account and registered in the participant's name to the plan
participant as promptly as practicable after the rights are issued.
35. MAY A PARTICIPANT PLEDGE SHARES OF COMMON STOCK HELD IN HIS OR HER PLAN
ACCOUNT?
A participant may not pledge shares of our common stock held in his or her
plan account, and any such purported pledge will be void. A participant who
wishes to pledge shares of our common stock must request that a certificate for
those shares first be issued in the participant's name or that these shares be
transferred to a brokerage account.
36. MAY WE SUSPEND OR TERMINATE THE PLAN?
We may suspend or terminate the plan at any time. If we suspend or
terminate the plan, all funds held by us for investment will be returned without
interest. We also reserve the right to modify, suspend, terminate or refuse
participation in the plan to any person at any time.
37. MAY WE AMEND THE PLAN?
We may amend or supplement the plan at any time. Any amendment or
supplement will only be effective upon mailing appropriate written notice at
least 30 days prior to the effective date thereof to each participant. Written
notice is not required when an amendment or supplement is necessary or
appropriate to comply with the rules or policies of the Securities and Exchange
Commission, the Internal Revenue Service or other regulatory authority or law,
or when an amendment or supplement does not materially affect the rights of
participants. The amendment or
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supplement will be deemed to be accepted by a participant unless, prior to the
effective date thereof, the plan administrator receives notice of the
termination of a participant's plan account. Any amendment may include an
appointment by the plan administrator or by us of a successor bank or agent, in
which event we are authorized to pay that successor bank or agent for the
account of the participant all distributions payable on shares of our common
stock held by the participant for application by that successor bank or agent as
provided in the plan.
38. WHAT HAPPENS IF WE TERMINATE THE PLAN?
If the plan is terminated, each participant will receive (1) a certificate
for all whole shares of our common stock held in the participant's plan account
and (2) a check representing the value of any fractional shares of our common
stock held in the participant's plan account, less any brokerage commissions and
any uninvested distributions held in the account.
39. WHO INTERPRETS AND REGULATES THE PLAN?
We are authorized to issue such interpretations, adopt such regulations and
take such action as we may deem reasonably necessary to effectuate the plan. Any
action we or the plan administrator take to effectuate the plan in the good
faith exercise of our judgment will be binding on participants.
USE OF PROCEEDS
Unless otherwise described in a prospectus supplement, we intend to use the
net proceeds from the sale of our common stock offered pursuant to the plan for
general corporate purposes, which may include acquisitions, investments and the
repayment of indebtedness outstanding at a particular time. Pending this
utilization, the proceeds from the sale of our common stock offered pursuant to
the plan will be invested in short-term, dividend-paying or interest-bearing
investment grade securities.
PLAN OF DISTRIBUTION
Subject to the discussion below, we will distribute newly issued or
treasury shares of our common stock sold under the plan, rather than through an
underwriter, broker or dealer. There are no brokerage commissions in connection
with the purchases of such newly issued or treasury shares of common stock.
In connection with the administration of the plan, we may be requested to
approve investments made pursuant to requests for waiver by or on behalf of
participants or other investors who may be engaged in the securities business.
Persons who acquire shares of common stock through the plan and resell them
shortly after acquiring them, including coverage of short positions, under
certain circumstances, may be participating in a distribution of securities that
would require compliance with Regulation M under the Securities Exchange Act of
1934 and may be considered to be underwriters within the meaning of the
Securities Act of 1933. We will not extend to any such person any rights or
privileges other than those to which it would be entitled as a participant, nor
will we enter into any agreement with any such person regarding the resale or
distribution by any such person of the shares of our common stock so purchased.
We may, however, accept investments made pursuant to requests for waiver by such
persons.
From time to time, financial intermediaries, including brokers and dealers,
and other persons may engage in positioning transactions in order to benefit
from any waiver discounts applicable to investments made pursuant to requests
for waiver under the plan. Those transactions may cause fluctuations in the
trading volume of our common stock. Financial intermediaries and such other
persons who engage in positioning transactions may be deemed to be underwriters.
We have no arrangements or understandings, formal or informal, with any person
relating to the sale of shares of our common stock to be received under the
plan. We reserve the right to modify, suspend or terminate participation in the
plan by otherwise eligible persons to eliminate practices that are inconsistent
with the purpose of the plan.
We will pay any and all brokerage commissions and related expenses incurred
in connection with purchases of our common stock under the plan. Upon withdrawal
by a participant from the plan by the sale of shares of our common stock held
under the plan, the participant will receive the proceeds of that sale less a
service fee, brokerage commission and any applicable withholdings, transfer
or other taxes.
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Our common stock may not be available under the plan in all states. We are
not making an offer to sell our common stock in any state where the offer or
sale is not permitted.
SALES OF SHARES BY PARTICIPANTS
Participants that request the sale of any of their shares of common stock
held in the plan must pay a service fee equal to $15.00, plus a commission
currently equal to $0.12 per share, plus any applicable taxes. Shares of our
common stock may not be available under the plan in all states. This prospectus
does not constitute an offer to sell, or a solicitation of an offer to buy, any
shares of our common stock or other securities in any state or any other
jurisdiction to any person to whom it is unlawful to make such offer in such
jurisdiction.
VALIDITY OF THE OFFERED SECURITIES
Sullivan & Worcester LLP, Boston, Massachusetts, will pass upon the
validity of the common stock offered pursuant to this prospectus. As to certain
matters of Pennsylvania law, Sullivan & Worcester LLP will rely upon an opinion
of Ballard Spahr Andrews & Ingersoll, LLP, Philadelphia, Pennsylvania.
NOTICE REGARDING ARTHUR ANDERSEN LLP
Effective June 19, 2002, we dismissed Arthur Andersen LLP, our former
independent auditor. Our audited consolidated financial statements as of
December 31, 2001 and for the years ended December 31, 2001 and 2000 that are
incorporated by reference in the registration statement of which this prospectus
forms a part were audited by Andersen as stated in their reports incorporated by
reference herein, and have been so incorporated in reliance upon the reports of
such firm given upon their authority as experts in auditing and accounting.
Andersen has not consented to the incorporation by reference of its audit
reports in the registration statement of which this prospectus forms a part, and
we have dispensed with the requirement to file Andersen's consent in reliance on
Rule 437a under the Securities Act. Since Andersen has not consented to the
incorporation by reference of their audit reports in the registration statement,
an investor's ability to seek potential recoveries from Andersen related to any
claims that an investor may assert as a result of the work performed by Andersen
may be limited significantly by the lack of such consent and the diminished
amount of assets of Andersen that are or may be available to satisfy any such
claims.
EXPERTS
The consolidated financial statements as of and for the year ended December
31, 2002 incorporated in this prospectus by reference from the Iron Mountain
Incorporated Annual Report on Form 10-K for the year ended December 31, 2002
have been audited by Deloitte & Touche LLP, independent auditors, as stated in
their report (which report expresses an unqualified opinion on the 2002
financial statements and includes an explanatory paragraph concerning the
application of procedures relating to certain disclosures and reclassifications
of financial statement amounts related to the 2001 and 2000 financial statements
that were audited by other auditors who have ceased operations) which is
incorporated by reference and have been so incorporated in reliance upon the
report of such firm given their authority as experts in accounting and auditing.
The report dated February 21, 2003 of RSM Robson Rhodes, the independent
auditors, on the consolidated financial statements of Iron Mountain Europe
Limited as of October 31, 2001 and 2002 and for the three years ended October
31, 2002, is incorporated into the registration statement of which this
prospectus forms a part by reference from the Iron Mountain Incorporated Annual
Report on Form 10-K for the year ended December 31, 2002 and, is incorporated by
reference herein in reliance upon the authority of said firm as experts in
accounting and auditing.
On May 3, 2003, RSM Robson Rhodes transferred its business to RSM Robson
Rhodes LLP (a Limited Liability Partnership under the Limited Liability
Partnerships Act 2000). Under the powers given by Paragraph 3 of Section 26 of
the Companies Act 1989, the Board of Directors of Iron Mountain Europe Limited
resolved that the previous appointment of RSM Robson Rhodes as the auditors of
Iron Mountain Europe Limited should be extended, with effect from May 3, 2003,
to RSM Robson Rhodes LLP.
The consolidated financial statements of Iron Mountain Incorporated and
its subsidiaries as of December 31, 2001 and for the years ended December 31,
2001 and 2000, and its supplemental schedule, Valuation and Qualifying Accounts,
included in its Annual Report on Form 10-K for the year ended December 31, 2002,
filed with the Securities and Exchange Commission on March 21, 2003 and
incorporated by reference into the registration statement of which this
prospectus forms a part, have been audited by Arthur Andersen LLP, independent
public accountants, as set forth in their report dated February 22, 2002 (except
with respect to Note 17, as to which the date
-19-
is March 15, 2002). In their report on Iron Mountain's consolidated financial
statements, that firm states that, with respect to certain subsidiaries, its
opinion is based on the report of RSM Robson Rhodes, independent public
accountants. The consolidated financial statements and supporting schedule
referred to above have been incorporated by reference herein in reliance upon
the authority of those firms as experts in giving said reports.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. You may read and copy any reports, statements or other
information on file at the SEC's Public Reference Room at 450 Fifth Street,
N.W., Washington, D.C. 20549. You can request copies of those documents upon
payment of a duplicating fee to the SEC. Please call the SEC at 1-800-SEC-0330
for further information on the operation of the public reference rooms. You can
review our SEC filings and the registration statement by accessing the SEC's
Internet site at http://www.sec.gov. Our common stock is listed on the New York
Stock Exchange where reports, proxy statements and other information concerning
us can also be inspected. The offices of the New York Stock Exchange are located
at 20 Broad Street, New York, New York 10005.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" the information we file
with them, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this prospectus. Statements in this prospectus
regarding the contents of any contract or other document may not be complete.
You should refer to the copy of the contract or other document filed as an
exhibit to the registration statement. Later information filed with the SEC will
update and supersede information we have included or incorporated by reference
in this prospectus.
We incorporate by reference the following documents filed by us:
o Annual Report on Form 10-K for the fiscal year ended December 31,
2002.
o Quarterly Report on Form 10-Q for the quarter ended March 31, 2003.
o Definitive Proxy on Schedule 14A filed April 17, 2003.
o Current Reports on Form 8-K filed April 9, 2003, April 30, 2003 and
May 7, 2003.
o The description of our common stock contained in the Registration
Statement on Form 8-A dated May 27, 1997, including all amendments and
reports filed for the purpose of updating such description.
In addition to the documents listed above, we incorporate by reference any
future filings made by us, including filings made prior to the effectiveness of
this registration statement, with the SEC under Section 13(a), 13(c), 14 or
15(d) of the Securities Exchange Act of 1934 until our offering of the
securities made by this prospectus is completed or terminated.
We will provide you with a copy of the information we have incorporated by
reference, excluding exhibits other than those to which we specifically refer.
You may obtain this information at no cost by writing or telephoning us at: 745
Atlantic Avenue, Boston, Massachusetts 02111, (617) 535-4799, Attention:
Investor Relations.
-20-
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
Set forth below is an estimate (except in the case of the registration fee)
of the amount of fees and expenses to be incurred in connection with the
issuance and distribution of the offered shares registered hereby, other than
underwriting discounts and commission, if any, incurred in connection with the
sale of the offered shares. All such amounts will be borne by Iron Mountain
Incorporated ("Iron Mountain" or the "Company").
Registration Fee Under Securities Act of 1933........$ $33,331
Blue Sky Fees and Expenses............................ $10,000
Legal Fees and Expenses............................... $300,000
Accounting Fees and Expenses.......................... $300,000
Printing and Engraving Expenses....................... $100,000
Trustee's Fees (including counsel fees)............... $100,000
Rating Agencies Fees.................................. $100,000
Miscellaneous Fees and Expenses....................... $100,000
----------
Total:........................................... $1,043,331
==========
Item 15. 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 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
II-1
proceeding; if a quorum is not obtainable or is obtainable and a majority vote
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. Such advancement of
expenses shall be authorized by the board of directors.
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 by or imposed upon 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.
Reference is made to the Underwriting Agreements (Exhibits 1.1 through 1.8
hereto), which may contain certain provisions for indemnification by the
underwriters of the Company, directors, officers and controlling persons under
certain circumstances.
Item 16. Exhibits
Certain exhibits indicated below are incorporated by reference to documents
of Iron Mountain on file with the Securities and Exchange Commission (the
"SEC"). Exhibit numbers in parentheses refer to the exhibit numbers in the
applicable filing.
II-2
Exhibit Item Exhibit
No.
1.1 Form of Underwriting Agreement (for Debt Securities). *
1.2 Form of Underwriting Agreement (for Preferred Stock). *
1.3 Form of Underwriting Agreement (for Depositary Shares). *
1.4 Form of Underwriting Agreement (for Common Stock). *
1.5 Form of Underwriting Agreement (for Warrants). *
1.6 Form of Underwriting Agreement (for Stock Purchase Contracts). *
1.7 Form of Underwriting Agreement (for Stock Purchase Units). *
1.8 Form of Underwriting Agreement (for Trust Preferred Securities). *
2.1 Purchase Agreement, dated November 13, 2000, by and among Iron Mountain Canada (2.1)5
Corporation, Iron Mountain Records Management, Inc. ("IMRM"), FACS Records
Storage Income Fund, FACS Records Centre Inc. and 3796281 Canada Inc.
2.2 Asset Purchase and Sale Agreement, dated February 18, 2000, by and among IMRM, (2.1)2
Data Storage Center, Inc., DSC of Florida, Inc., DSC of Massachusetts, Inc.,
and Suddath Van Lines, Inc.
2.3 Amendment No. 1 to Asset Purchase and Sale Agreement, dated May 1, 2000, by (2.1)4
and among IMRM, Data Storage Center, Inc., DSC of Florida, Inc., DSC of
Massachusetts, Inc., Suddath Van Lines, Inc. and Suddath Family Trust U/A
11/8/79.
2.4 Agreement and Plan of Merger, dated as of October 20, 1999, by and between (2)1
Iron Mountain and Pierce Leahy.
4.1 Form of Senior Indenture. (4.1)7
4.2 Form of Senior Subordinated Indenture. (4.2)7
4.3 Form of Subordinated Indenture. (4.3)7
4.4 Form of Senior Debt Security. *
4.5 Form of Senior Subordinated Debt Security. *
4.6 Form of Subordinated Debt Security. *
4.7 Form of stock certificate representing shares of Common Stock, $.01 par value (4.1)3
per share, of the Company.
4.8 Form of Statement with Respect to Shares for shares of Preferred Stock, $.01 *
par value per share, of the Company.
4.9 Form of stock certificate representing shares of Preferred Stock, $.01 par *
value per share, of the Company.
II-3
4.10 Form of Deposit Agreement, including form of Depositary Receipt for Depositary *
Shares.
4.11 Form of Warrant Agreement, including form of Warrant. *
4.12 Form of Stock Purchase Contract. *
4.13 Form of Stock Purchase Unit. *
4.14 Declaration of Trust of IM Capital Trust I, dated as of December 10, 2001, (4.15)6
among the Company, The Bank of New York, The Bank of New York (Delaware) and
John P. Lawrence, as trustees.
4.15 Form of Amended and Restated Declaration of Trust of IM Capital Trust I. (4.16)6
4.16 Certificate of Trust of IM Capital Trust I. (4.17)6
4.17 Form of Trust Preferred Security. Included in
Exhibit 4.15
4.18 Form of Iron Mountain Incorporated Guarantee Agreement. (4.19)6
5.1 Opinion of Sullivan & Worcester LLP. Filed herewith as
Exhibit 5.1
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP. Filed herewith as
Exhibit 5.2
5.3 Opinion of Richards, Layton & Finger, P.A., relating to IM Capital Trust I. Filed herewith as
Exhibit 5.3
8 Opinion of Sullivan & Worcester LLP regarding tax matters. *
12 Statement Regarding Computation of Ratios of Earnings to Fixed Charges. Filed herewith as
Exhibit 12
23.1 Consent of Sullivan & Worcester LLP. Included in
Exhibit 5.1
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP. Included in
Exhibit 5.2
23.3 Consent of Richards, Layton & Finger, P.A. Included in
Exhibit 5.3
23.4 Consent of Deloitte & Touche LLP (Iron Mountain Incorporated, Pennsylvania). Filed herewith as
Exhibit 23.4
23.5 Consent of RSM Robson Rhodes LLP (Iron Mountain Europe Limited). Filed herewith as
Exhibit 23.5
24 Powers of Attorney. Contained on pages
II - 8 and II -
9 of the
Registration
Statement
II-4
25.1 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Senior Indenture. Exhibit 25.1
25.2 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Senior Subordinated Indenture. Exhibit 25.2
25.3 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Subordinated Indenture. Exhibit 25.3
25.4 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Amended and Restated Exhibit 25.4
Declaration of Trust of IM Capital Trust I.
25.5 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Iron Mountain Incorporated Exhibit 25.5
Guarantee Agreement for IM Capital Trust I.
- -------------
<FN>
* To be filed by amendment or incorporated by reference in connection with the offering of offered
securities, as appropriate.
1. Filed as an exhibit to the Company's Current Report on Form 8-K, dated October 20, 1999, filed with the
SEC, File No. 1-13045.
2. Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1999,
filed with the SEC, File No. 1-13045.
3. Filed as an exhibit to the Company's Current Report on Form 8-K dated February 1, 2000, filed with the
SEC, File No. 1-13045.
4. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000,
filed with the SEC, File No. 1-13045.
5. Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 2000,
filed with the SEC, File No. 1-13045.
6. Filed as an exhibit to the Company's Registration Statement No. 333-75068, filed with the SEC on December
13, 2001.
7. Filed as an exhibit to Amendment No. 1 to the Company's Registration Statement No. 333-75068, filed with
the SEC on February 11, 2002.
</FN>
II-5
Item 17. Undertakings
(a) The undersigned registrants hereby undertake:
(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 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 SEC pursuant to
Rule 424(b) under the Securities Act 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 SEC by Iron Mountain pursuant to Section 13 or Section
15(d) of the Securities Exchange 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.
(b) The undersigned registrants hereby further undertake that, for the purposes
of determining any liability under the Securities Act, each filing of Iron
Mountain'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.
(c) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
registrants pursuant to the provisions described under Item 15 of this
registration statement, or otherwise, the registrants have been advised
that in the opinion of the SEC 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 the registrants of expenses incurred or paid by
a director, officer or controlling person of the registrants 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 registrants will, unless in the opinion of their
counsel the matter has been settled by controlling precedent, submit to a
court of appropriate jurisdiction the question whether such indemnification
by it is
II-6
against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
(d) The undersigned registrants hereby undertake that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained
in a form of prospectus filed by Iron Mountain pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to
be part of this registration statement as of the time it was declared
effective;
(2) For purposes of determining any liability under the Securities Act,
each post-effective amendment that contains a form of prospectus 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.
(e) The undersigned registrants hereby undertake to file an application for the
purpose of determining the eligibility of each trustee to act under
subsection (a) of Section 310 of the Trust Indenture Act of 1939, as
amended (the "Act"), in accordance with the rules and regulations
prescribed by the SEC under Section 305(b)(2) of the Act.
II-7
SIGNATURES
Pursuant to the requirements of the Securities Act, the Company certifies
that it has reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Boston, Commonwealth of Massachusetts, on May 22, 2003.
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, this registration
statement on Form S-3 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-3 (including, without limitation, any
registration statement and post-effective amendment thereto filed pursuant to
Rule 462(b) under the Securities Act) and to file the same, with exhibits
thereto and other documents in connection therewith, with the SEC, 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 22, 2003
C. Richard Reese President and Director
/s/ John F. Kenny, Jr. Executive Vice President, Chief May 22, 2003
John F. Kenny, Jr. Financial Officer and Director
/s/ Clarke H. Bailey Director May 22, 2003
Clarke H. Bailey
/s/ Constantin R. Boden Director May 22, 2003
Constantin R. Boden
/s/ Kent P. Dauten Director May 22, 2003
Kent P. Dauten
/s/ Eugene B. Doggett Director May 22, 2003
Eugene B. Doggett
II-8
/s/ B. Thomas Golisano Director May 22, 2003
B. Thomas Golisano
/s/ Arthur D. Little Director May 22, 2003
Arthur D. Little
/s/ Vincent J. Ryan Director May 22, 2003
Vincent J. Ryan
/s/ Jean A. Bua Vice President and May 22, 2003
Jean A. Bua Corporate Controller
II-9
Pursuant to the requirements of the Securities Act, IM Capital Trust I
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Boston, Commonwealth of Massachusetts, on May 22,
2003.
IM CAPITAL TRUST I
By: Iron Mountain Incorporated, as Sponsor
By: /s/ John F. Kenny, Jr.
John F. Kenny, Jr.
Executive Vice President
Chief Financial Officer and Director
II-10
SIGNATURES
Pursuant to the requirements of the Securities Act, COMAC, Inc., Data
Security and Storage, Inc., DSI Technology Escrow Services, Inc., Iron Mountain
Business Trust #1, Iron Mountain Global, Inc., Iron Mountain Global, LLC, Iron
Mountain Information Management, Inc., Mountain Real Estate Assets, Inc.,
Mountain Reserve I, Inc., and Mountain Reserve II, Inc. have each 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 May 22, 2003.
COMAC, INC.
DATA SECURITY AND STORAGE, INC.
DSI TECHNOLOGY ESCROW SERVICES, INC.
IRON MOUNTAIN GLOBAL, INC.
IRON MOUNTAIN INFORMATION MANAGEMENT, INC.
MOUNTAIN REAL ESTATE ASSETS, INC.
MOUNTAIN RESERVE I, INC.
MOUNTAIN RESERVE II, INC.
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Sole Director
IRON MOUNTAIN GLOBAL, LLC
By: Iron Mountain Global, Inc.,
Its Sole Member
By: C. Richard Reese
Name: C. Richard Reese
Title: Sole Director
IRON MOUNTAIN BUSINESS TRUST #1
/s/ C. Richard Reese
C. Richard Reese, Trustee
/s/ John F. Kenny, Jr.
John F. Kenny, Jr., Trustee
/s/ Garry B. Watzke
Garry B. Watzke, Trustee
Pursuant to the requirements of the Securities Act, this registration
statement on Form S-3 has been signed below on May 22, 2003 by the following
persons in the capacities and on the dates indicated; and each of the
undersigned officers or directors or managers or trustees of COMAC, Inc., Data
Security and Storage, Inc., DSI Technology Escrow Services, Inc., Iron Mountain
Global, Inc., Iron Mountain Information Management, Inc., Mountain Real Estate
Assets, Inc., (collectively, the "Corporate Subsidiaries"), Iron Mountain
Global, LLC, Iron Mountain Business Trust #1, Mountain Reserve I, Inc., and
Mountain Reserve II, Inc. hereby severally constitutes and appoints C. Richard
Reese and John F. Kenny, Jr., and each of them, to sign for him, and in his or
her name in the capacity indicated below, such registration statement for the
purpose of registering such securities under the
II-11
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.
Signature Title Date
--------- ----- ----
/s/ C. Richard Reese Chief Executive Officer and May 22, 2003
C. Richard Reese President; Sole Director of the
Corporate Subsidiaries; and Trustee
of Iron Mountain Business Trust #1
/s/ John F. Kenny, Jr. Chief Financial Officer and Trustee May 22, 2003
John F. Kenny, Jr. of Iron Mountain Business Trust #1
/s/ Jean A. Bua Vice President and Corporate May 22, 2003
Jean A. Bua Controller
/s/ Garry B. Watzke Trustee of Iron Mountain Business May 22, 2003
Garry B. Watzke, Esq. Trust #1
Iron Mountain Global, Inc. Sole Member of Iron Mountain May 22, 2003
Global, LLC
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Sole Director
II-12
EXHIBIT INDEX
Exhibit Item Exhibit
No.
1.1 Form of Underwriting Agreement (for Debt Securities). *
1.2 Form of Underwriting Agreement (for Preferred Stock). *
1.3 Form of Underwriting Agreement (for Depositary Shares). *
1.4 Form of Underwriting Agreement (for Common Stock). *
1.5 Form of Underwriting Agreement (for Warrants). *
1.6 Form of Underwriting Agreement (for Stock Purchase Contracts). *
1.7 Form of Underwriting Agreement (for Stock Purchase Units). *
1.8 Form of Underwriting Agreement (for Trust Preferred Securities). *
2.1 Purchase Agreement, dated November 13, 2000, by and among Iron Mountain Canada (2.1)5
Corporation, Iron Mountain Records Management, Inc. ("IMRM"), FACS Records
Storage Income Fund, FACS Records Centre Inc. and 3796281 Canada Inc.
2.2 Asset Purchase and Sale Agreement, dated February 18, 2000, by and among IMRM, (2.1)2
Data Storage Center, Inc., DSC of Florida, Inc., DSC of Massachusetts, Inc.,
and Suddath Van Lines, Inc.
2.3 Amendment No. 1 to Asset Purchase and Sale Agreement, dated May 1, 2000, by (2.1)4
and among IMRM, Data Storage Center, Inc., DSC of Florida, Inc., DSC of
Massachusetts, Inc., Suddath Van Lines, Inc. and Suddath Family Trust U/A
11/8/79.
2.4 Agreement and Plan of Merger, dated as of October 20, 1999, by and between (2)1
Iron Mountain and Pierce Leahy.
4.1 Form of Senior Indenture. (4.1)7
4.2 Form of Senior Subordinated Indenture. (4.2)7
4.3 Form of Subordinated Indenture. (4.3)7
4.4 Form of Senior Debt Security. *
4.5 Form of Senior Subordinated Debt Security. *
4.6 Form of Subordinated Debt Security. *
4.7 Form of stock certificate representing shares of Common Stock, $.01 par value (4.1)3
per share, of the Company.
4.8 Form of Statement with Respect to Shares for shares of Preferred Stock, $.01 *
par value per share, of the Company.
4.9 Form of stock certificate representing shares of Preferred Stock, $.01 par *
value per share, of the Company.
4.10 Form of Deposit Agreement, including form of Depositary Receipt for Depositary *
Shares.
4.11 Form of Warrant Agreement, including form of Warrant. *
4.12 Form of Stock Purchase Contract. *
4.13 Form of Stock Purchase Unit. *
4.14 Declaration of Trust of IM Capital Trust I, dated as of December 10, 2001, (4.15)6
among the Company, The Bank of New York, The Bank of New York (Delaware) and
John P. Lawrence, as trustees.
4.15 Form of Amended and Restated Declaration of Trust of IM Capital Trust I. (4.16)6
4.16 Certificate of Trust of IM Capital Trust I. (4.17)6
4.17 Form of Trust Preferred Security. Included in
Exhibit 4.15
4.18 Form of Iron Mountain Incorporated Guarantee Agreement. (4.19)6
5.1 Opinion of Sullivan & Worcester LLP. Filed herewith as
Exhibit 5.1
5.2 Opinion of Ballard Spahr Andrews & Ingersoll, LLP. Filed herewith as
Exhibit 5.2
5.3 Opinion of Richards, Layton & Finger, P.A., relating to IM Capital Trust I. Filed herewith as
Exhibit 5.3
8 Opinion of Sullivan & Worcester LLP regarding tax matters. *
12 Statement Regarding Computation of Ratios of Earnings to Fixed Charges. Filed herewith as
Exhibit 12
23.1 Consent of Sullivan & Worcester LLP. Included in
Exhibit 5.1
23.2 Consent of Ballard Spahr Andrews & Ingersoll, LLP. Included in
Exhibit 5.2
23.3 Consent of Richards, Layton & Finger, P.A. Included in
Exhibit 5.3
23.4 Consent of Deloitte & Touche LLP (Iron Mountain Incorporated, Pennsylvania). Filed herewith as
Exhibit 23.4
23.5 Consent of RSM Robson Rhodes LLP (Iron Mountain Europe Limited). Filed herewith as
Exhibit 23.5
24 Powers of Attorney. Contained on pages
II - 8 and II -
9 of the
Registration
Statement
25.1 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Senior Indenture. Exhibit 25.1
25.2 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Senior Subordinated Indenture. Exhibit 25.2
25.3 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Subordinated Indenture. Exhibit 25.3
25.4 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Amended and Restated Exhibit 25.4
Declaration of Trust of IM Capital Trust I.
25.5 Statement of Eligibility of Trustee on Form T-1 under the Trust Indenture Act Filed herewith as
of 1939, as amended, of the trustee under the Iron Mountain Incorporated Exhibit 25.5
Guarantee Agreement for IM Capital Trust I.
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<FN>
* To be filed by amendment or incorporated by reference in connection with the offering of offered
securities, as appropriate.
1. Filed as an exhibit to the Company's Current Report on Form 8-K, dated October 20, 1999, filed with the
SEC, File No. 1-13045.
2. Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 1999,
filed with the SEC, File No. 1-13045.
3. Filed as an exhibit to the Company's Current Report on Form 8-K dated February 1, 2000, filed with the
SEC, File No. 1-13045.
4. Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2000,
filed with the SEC, File No. 1-13045.
5. Filed as an exhibit to the Company's Annual Report on Form 10-K for the year ended December 31, 2000,
filed with the SEC, File No. 1-13045.
6. Filed as an exhibit to the Company's Registration Statement No. 333-75068, filed with the SEC on December
13, 2001.
7. Filed as an exhibit to Amendment No. 1 to the Company's Registration Statement No. 333-75068, filed with
the SEC on February 11, 2002.
</FN>