EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
IRON MOUNTAIN INCORPORATED
(as amended through January 12, 1998)
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Iron Mountain Incorporated, a Delaware corporation (the "Corporation"),
hereby certifies as follows:
A. The name of the Corporation is Iron Mountain Incorporated, and the
name under which the Corporation was originally incorporated was Iron Mountain
Information Services, Inc.
B. The date of filing of the Corporation's original Certificate of
Incorporation with the Secretary of State was November 15, 1990; and the date of
filing of its first Restated Certificate of Incorporation with the Secretary of
State was December 13, 1990.
C. This Restated Certificate of Incorporation restates, integrates and
further amends the provisions of the first Restated Certificate of Incorporation
of the Corporation, as heretofore amended.
D. This Restated Certificate of Incorporation was duly adopted in
accordance with Sections 242 and 245 of the Delaware General Corporation Law.
E. The first Restated Certificate of Incorporation of the Corporation,
as heretofore amended, is hereby amended and restated effective at 9:00 a.m. on
February 6, 1996 to read in its entirety as follows:
FIRST: The name of the Corporation is Iron Mountain Incorporated.
SECOND: The address of the Corporation's registered office in the State
of Delaware is The Prentice-Hall Corporation System, Inc., 1013 Centre Road,
City of Wilmington, County of New Castle. The name of the Corporation's
registered agent at such address is The Prentice-Hall Corporation System, Inc.
THIRD: The nature of the business or purposes to be conducted or
promoted by the Corporation are to engage in any lawful act or activity for
which corporations may be organized under the Delaware General Corporation Law.
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FOURTH: The total number shares of all classes of capital stock that
Corporation shall have authority to issue is One Hundred Three Million
(103,000,000)1 shares, of which:
(i) One Hundred Million (100,000,000) shall be Common Stock, par
value $.01 per share (the "Common Stock"),2
(ii) One Million (1,000,000) shall be Nonvoting Common Stock, par
value $.01 per share (the "Nonvoting Common Stock" and
together with the Common Stock, the "Common Shares"), and
(iii) Two Million (2,000,000) shall be Preferred Stock, par value
$.01 per share (the "Preferred Stock" ).
A. CERTAIN DEFINITIONS.
For purposes of this Certificate of Incorporation, unless the context
otherwise requires, the following terms (or any variant in the form thereof)
have the following respective meanings. Terms defined in the singular shall have
a comparable meaning when used in the plural, and vice versa, and the reference
to any gender shall be deemed to include all genders.
The term "Applicable Law" shall mean any Law of any Authority,
whether domestic or foreign, including without limitation all federal
and state Laws, to which the Person in question is subject or by which
it or any of its business or operations is subject or any of its
property is bound.
The term "Authority" shall mean any governmental or
quasi-governmental authority, whether administrative, executive,
judicial, legislative or other, or any combination thereof, including
without limitation any federal, state, territorial, county, municipal
or other government or governmental or quasi-governmental agency,
authority, board, body, branch, bureau, central bank or comparable
agency or Entity, commission, court, department, instrumentality or
other political unit or subdivision or other Entity of any of the
foregoing, whether domestic or foreign.
The term "Certificate of Incorporation" means this Restated
Certificate of Incorporation of the Corporation and any other document
which pursuant to the Delaware General Corporation Law constitutes a
part of the Corporation's Certificate of Incorporation, including any
amendment to or restatement hereof and any certificate of designation
in respect of any particular class or series of Preferred Stock from
time to time in effect.
The term "Entity" shall mean any corporation, firm, limited
liability company, unincorporated organization, association,
partnership, trust, business trust, joint stock
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1 Amended June 3, 1997 and further amended January 12, 1998.
2 Amended June 3, 1997 and further amended January 12, 1998.
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company, joint venture or other organization, entity or business,
whether acting in an individual, fiduciary or other capacity, or any
governmental or quasi-governmental authority, whether domestic or
foreign and whether administrative, executive, judicial, legislative or
other, or any combination thereof.
The term "Law" shall mean any administrative, judicial,
legislative or other action, code, consent decree, constitution,
decree, directive, enactment, finding, guideline, law, injunction,
interpretation, judgment, order, ordinance, policy statement,
proclamation, promulgation, regulation, requirement, rule, rule of law,
rule of public policy, settlement agreement, statute, or writ, or the
common law, or any particular section, part or provision thereof, or
any interpretation, directive, guideline or request (having the force
of law), of any Authority.
The term "Person" shall mean any natural individual or any
Entity.
B. GENERAL.
Any and all shares of any class or series issued for which the full
consideration has been paid or delivered, shall be deemed fully paid stock and
the holders of such shares shall not be liable for any further call or
assessment or any other payment thereon.
No holder of any of the shares of stock of the Corporation, whether now
or hereafter authorized or issued, shall be entitled as of right to purchase or
subscribe for (i) any unissued stock of any class, or (ii) any additional shares
of any class to be issued by reason of any increase of the authorized stock of
the Corporation of any class, or (iii) bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable, or carrying any
right to purchase or otherwise acquire, stock of any class of the Corporation.
The Board of Directors of the Corporation may from time to time
authorize by resolution the issuance of any or all shares of the Common Stock
and the Preferred Stock herein authorized or any class or series of capital
stock hereafter authorized, together with any additional shares of any class or
series to be issued by reason of any increase of the authorized stock of the
Corporation of any class or series, or bonds, certificates of indebtedness,
debentures or other securities convertible into or exchangeable for, or carrying
any right to purchase or otherwise acquire, stock of any class or series of the
Corporation, for such purposes, in such amounts, to such Persons, for such
consideration and, in the case of the Preferred Stock, in one or more series or
classes, all as the Board of Directors in its sole and absolute discretion may
from time to time determine and without any vote, approval, consent or other
action by the stockholders, except as otherwise required by Applicable Law.
C. COMMON SHARES.
Subject to all the rights which may be granted to holders of the
Preferred Stock and except as otherwise required by Applicable Law, the relative
voting, dividend, liquidation and other rights, preferences and limitations or
restrictions of the Common Stock and the Nonvoting Common Stock are as follows:
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1. The Common Stock and the Nonvoting Common Stock shall have identical
rights and privileges in every respect, except as expressly set forth in the
following paragraphs of this Section C.
2. Voting Rights. Except as otherwise required by Applicable Law or
this Certificate of Incorporation, on all matters to be voted on by stockholders
of the Corporation, each holder of Common Stock shall have one vote in respect
of each share of Common Stock held of record by such holder on the books of the
Corporation. The holders of Nonvoting Common Stock shall not be entitled to vote
on any matters submitted to the stockholders of the Corporation except as
otherwise required by Applicable Law, in which case (and irrespective of any
class vote relating to increases or decreases in the authorized shares of
Nonvoting Common Stock such holders would otherwise be entitled to under Section
242(b) of the Delaware General Corporation Law) holders of Nonvoting Common
Stock shall vote (at the rate of one vote for each share of Nonvoting Common
Stock held of record by such holder on the books of the Corporation) together
with holders of Common Stock and, if applicable, Preferred Stock, as a single
class on such matter unless otherwise required by Applicable Law (other than any
class vote required by Section 242(b) of the Delaware General Corporation Law).
Except as otherwise required by Applicable Law or provided herein or determined
by the Board of Directors pursuant to Section D below, holders of Common Stock
shall vote together with holders of Preferred Stock having voting rights, as a
single class on all matters submitted to the stockholders for a vote, including
any amendment to increase or decrease the number of authorized shares of Common
Stock (irrespective of Section 242(b) of the Delaware General Corporation Law),
subject to any special or preferential voting rights of any series of Preferred
Stock from time to time outstanding.
3. Dividends. At any time shares of Common Stock are outstanding, as
and when dividends or other distributions payable in either cash, capital stock
of the Corporation (other than Common Stock or Nonvoting Common Stock) or other
property of the Corporation may be declared by the Board of Directors, the
amount of any such dividend payable on each share of Common Stock shall in all
cases be equal to the amount of such dividend payable on each share of Nonvoting
Common Stock, and the amount of any such dividend payable on each share of
Nonvoting Common Stock shall in all cases be equal to the amount of the dividend
payable on each share of Common Stock. Dividends and distributions payable in
shares of Common Stock may not be made on or to shares of any class of the
Corporation's capital stock other than the Common Stock, and dividends payable
in shares of Nonvoting Common Stock may not be made on or to shares of any class
of the Corporation's capital stock other than the Nonvoting Common Stock. If a
dividend or distribution payable in shares of Common Stock shall be made on the
shares of Common Stock, a dividend or distribution payable in shares of
Nonvoting Common Stock shall be made simultaneously on the shares of Nonvoting
Common Stock, and the number of shares of Nonvoting Common Stock payable on each
share of Nonvoting Common Stock pursuant to such dividend or distribution shall
be equal to the number of shares of Common Stock payable on each share of Common
Stock pursuant to such dividend or distribution. If a dividend or distribution
payable in shares of Nonvoting Common Stock shall be made on the shares of
Nonvoting Common Stock, a dividend or distribution payable in shares of Common
Stock shall be made simultaneously on the shares of Common Stock, and the number
of shares of Common Stock payable on each share of Common Stock pursuant to such
dividend or distribution shall be equal to the number of shares of Nonvoting
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Common Stock payable on each share of Nonvoting Common Stock pursuant to such
dividend or distribution.
4. Consideration on Merger, Consolidation, etc.; Distribution of Assets
Upon Liquidation. In any merger, consolidation or business combination, the
consideration to be received per share by the holders of shares of Common Stock
and shares of Nonvoting Common Stock shall be distributed ratably to each share
of Common Stock and Nonvoting Common Stock in accordance with the number of
shares thereof and without regard to class, except that in any such transaction
in which shares of capital stock and/or other securities (including debt
securities) (including without limitation those of a surviving Entity, or the
direct or indirect parent Entity thereof, whether or not such surviving Entity
is the Corporation) are to be distributed, such shares (or other securities) may
differ only as to voting rights to the extent that the voting rights of the
Common Stock and the Nonvoting Common Stock differ immediately prior to such
merger, consolidation or business combination.
In the event the Corporation shall be liquidated, dissolved or wound
up, whether voluntarily or involuntarily, after there shall have been paid or
set aside for the holders of all shares of the Preferred Stock then outstanding
the full preferential amounts to which they may be entitled, if any, under the
resolutions authorizing the issuance of such Preferred Stock, the net assets of
the Corporation remaining thereafter shall be distributed ratably to each share
of Common Stock and Nonvoting Common Stock in accordance with the number of
shares thereof and without regard to class. For the purposes of this paragraph,
neither the merger, consolidation or business combination of the Corporation
with or into any other Entity in which the stockholders of the Corporation
receive capital stock and/or other securities (including debt securities) of the
surviving Entity (or of the direct or indirect parent Entity thereof), nor the
sale, lease or transfer by the Corporation of all or any part of its business
and assets, nor the reduction of the capital stock of the Corporation, shall be
deemed to be a voluntary or involuntary liquidation, dissolution or winding up
of the Corporation.
5. Subdivision or Combination of Common Shares. The shares of Common
Stock or Nonvoting Common Stock, as the case may be, shall not be split up or
subdivided into a greater number of shares or combined into a smaller number of
shares, whether by stock distribution, reclassification, recapitalization or
otherwise, unless at the same time the shares of the other class of Common
Shares are split up, subdivided or combined so that the number of shares thereof
outstanding shall be proportionately adjusted.
6. Conversion of Nonvoting Common Stock into Common Stock. In
connection with any public offering or public sale of Common Stock (including a
registered offering or a sale pursuant to Rule 144 promulgated under the
Securities Act of 1933, as amended, or any similar rule then in force), each
holder of Nonvoting Common Stock shall be entitled to convert any or all of such
holder's shares of Nonvoting Common Stock being actually distributed to the
public or sold to an underwriter, broker-dealer or market maker for actual sale
to the public into an equal number of shares of Common Stock (subject to
equitable adjustment to reflect stock splits, stock dividends, stock
combinations, recapitalizations and like occurrences).
Each share of Nonvoting Common Stock shall be convertible into one
share of Common Stock, at any time and from time to time, (i) if the holder
thereof is not a "bank holding company"
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or an affiliate of a "bank holding company" under the Bank Holding Company Act
of 1956, as amended (the "BHC Act"), then at the option of the holder thereof,
or (ii) if the holder thereof is a "bank holding company" or an affiliate of a
"bank holding company" under the BHC Act, then upon delivery to the Corporation
of a certificate signed by or on behalf of such holder or holders to the effect
that such holder and its affiliates would hold less than 5% of the outstanding
Common Stock (or such greater amount as shall be permitted by Applicable Law,
including, without limitation, the BHC Act) after giving effect to such
conversion, assuming the conversion by such holder and its affiliates of all
securities convertible into Common Stock owned by them and the exercise by the
holder and its affiliates of all warrants, options and rights to acquire Common
Stock and without giving effect to the exercise of such convertible securities,
options, warrants or rights by any other party, in form and substance reasonably
acceptable to the Corporation.
Such conversion right may be exercised as to any portion of Nonvoting
Common Stock held by a holder by delivering to the Corporation during regular
business hours, at the office of the Corporation or any transfer agent of the
Corporation for the Common Shares as may be designated by the Corporation, the
certificate or certificates for the shares to be converted, duly endorsed or
assigned in blank or to the Corporation (if required by it), accompanied by
written notice stating that such holder elects to convert such shares into
Common Stock, specifying the number of shares of Common Stock to be issued and
stating the name or names (with address) in which the certificate or
certificates for such shares of Common Stock are to be issued. Conversion shall
be deemed to have been effected on the date when the aforesaid delivery is made.
As promptly as is practicable thereafter, the Corporation shall issue and
deliver to such holder, or upon the written order of such holder to the place
designated by such holder, a certificate or certificates representing that
number of shares of Common Stock to which such holder is entitled; provided,
however, that, upon reasonable request by the Corporation, as a condition to
such issuance and delivery of shares of Common Stock to any person other than
such holder, such holder shall have provided to the Corporation evidence
reasonably satisfactory to the Corporation that such transfer shall have been
consummated in accordance with Applicable Law. The person in whose name the
certificate or certificates representing Common Stock are to be issued shall be
deemed to have become a Common Stock holder of record on the applicable
conversion date unless the transfer books of the Corporation are closed on that
date, in which event such holder shall be deemed to have become a Common Stock
holder of record on the next succeeding date on which the transfer books are
open. Upon conversion of only a portion of the number of shares covered by a
certificate representing shares of Nonvoting Common Stock surrendered for
conversion, the Corporation shall issue and deliver to such holder, at the
expense of the Corporation, a new certificate covering the number of shares of
the Nonvoting Common Stock representing the unconverted portion of the
certificate so surrendered.
D. PREFERRED STOCK.
Authority is hereby expressly granted to the Board of Directors from
time to time to issue the Preferred Stock in one or more classes or series and,
in connection with the creation of any such class or series, to fix by the
resolution or resolutions providing for the issue of shares thereof the
designation, voting powers, preferences, and relative, participating, optional,
or other special rights of such class or series, and the qualifications,
limitations, or restrictions thereof. Such authority of the Board of Directors
with respect to each such class or series shall include, but not be limited to,
the determination of the following:
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(a) The distinctive designation of, and the number of shares
comprising, such class or series, which number may be increased (except
where otherwise provided by the Board of Directors in creating such
class or series) or decreased (but not below the number of shares
thereof then outstanding) from time to time by like action of the Board
of Directors without stockholder approval (including the holders of
such class or series of Preferred Stock);
(b) The dividend rate or amount for such class or series, the
conditions and dates upon which such dividends shall be payable, the
form in which such dividends shall be payable, the relation which such
dividends shall bear to the dividends payable on any other class or
classes or any other series of the same or any other class or classes
of stock, and whether or not such dividends shall be cumulative, and if
so, from which date or dates for such class or series;
(c) Whether or not the shares of such class or series shall be
subject to redemption by the Corporation or the holders thereof and the
times, prices, and other terms and conditions of such redemption;
(d) Whether or not the shares of such series shall be subject
to the operation of a sinking fund or purchase fund to be applied to
the redemption or purchase of such shares and if such a fund be
established, the amount thereof and the terms and provisions relative
to the application thereof;
(e) Whether or not the shares of such series shall be
convertible into or exchangeable for shares of any other class or
classes, or of any other series of any class or classes, of stock of
the Corporation or any other Entity and if provision be made for
conversion or exchange, the times, prices, rates, adjustments, and
other terms and conditions of such conversion or exchange;
(f) Whether or not the shares of such class or series shall
have voting rights, in addition to the voting rights provided by Law,
and if they are to have such additional voting rights, the extent
thereof;
(g) The rights of the shares of such class or series in the
event of any voluntary or involuntary liquidation, dissolution, or
winding up of the Corporation or upon any distribution of its assets,
and the relative rights of priority, if any, of payment of such shares;
and
(h) Any other powers, preferences, and relative,
participating, optional, or other special rights of the shares of such
class or series, and the qualifications, limitations, or restrictions
thereof, to the full extent now or hereafter permitted by Applicable
Law and not inconsistent with the rights or provisions of any other
class or series of Common Shares or Preferred Stock of the Corporation.
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FIFTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and stockholders, it is
further provided that:
1. Powers of the Board of Directors. The business and affairs of the
Corporation shall be managed by or under the direction of the Board of
Directors. In addition to the powers and authorities herein or by statute
expressly conferred upon it, the Board of Directors may exercise all such powers
and do all such acts and things as may be exercised or done by the Corporation,
subject, nevertheless, to the provisions of the laws of the State of Delaware,
this Certificate of Incorporation and the By-Laws of the Corporation. Except as
otherwise provided by the Delaware General Corporation Law, any committee of the
Board of Directors shall have and may exercise, to the extent provided in the
By-Laws of the Corporation or by the resolutions of the Board of Directors, all
of the powers and authority of the Board of Directors of the Corporation in the
management of the business and affairs of the Corporation.
2. Number and Terms of Directors. Subject to the rights of the holders
of shares of any class or series of Preferred Stock to elect additional
Directors under specified circumstances, the number of Directors of the
Corporation shall be fixed by the Board of Directors of the Corporation and may
be increased or decreased from time to time in such a manner as may be
prescribed by the By-Laws.
The Directors shall be divided into three classes, as nearly
equal in number as possible. One class of Directors has been initially elected
for a term expiring at the annual meeting of stockholders to be held in 1996,
another class has been initially elected for a term expiring at the annual
meeting of stockholders to be held in 1997, and another class has been initially
elected for a term expiring at the annual meeting of stockholders to be held in
1998, with members of each class to hold office until their successors are
elected and qualified. At each succeeding annual meeting of the stockholders of
the Corporation, the successors of the class of Directors whose term expires at
that meeting shall be elected by plurality vote of all votes cast at such
meeting to hold office for a term expiring at the annual meeting of stockholders
held in the third year following the year of their election.
3. Newly Created Directorships and Vacancies. Newly created
directorships resulting from any increase in the authorized number of directors
or any vacancy in the Board of Directors resulting from death, resignation,
retirement, disqualification, removal from office or otherwise shall be filled
only by a majority vote of the directors then in office, though less than a
quorum, or by a sole remaining director, or, if no directors remain, then by the
stockholders of the Corporation, and directors so chosen shall hold office for a
term expiring at the next election of the class for which such Director has been
chosen. No decrease in the authorized number of directors shall shorten the term
of any incumbent director.
4. Election and Nominations of Directors. Unless and except to the
extent that the ByLaws of the Corporation shall so require, the election of
directors of the Corporation need not be by written ballot. Directors need not
be stockholders. Advance notice of stockholder nominations for the election of
Directors and advance notice of business to be brought by stockholders before an
annual meeting shall be given in the manner provided in the By-Laws of the
Corporation.
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5. Removal of Directors. Subject to the rights of the holders of shares
of any class or series of Preferred Stock, any Director may be removed from
office by the stockholders in the manner provided in this Section 5 of Article
FIFTH. At any annual meeting of the stockholders of the Corporation or at any
special meeting of the stockholders of the Corporation, the notice of which
shall state that the removal of a Director or Directors is among the purposes of
the meeting, the affirmative vote of the holders of at least 80 percent of the
combined voting power of the stock of the Corporation entitled to vote in the
election of Directors generally, voting together as a single class, may remove
such Director or Directors only for cause.
6. No Action By Written Consent of Stockholders. Subject to the rights
of the holders of shares of any class or series of Preferred Stock in respect of
actions to be taken by the holders of such shares, any action required or
permitted to be taken by the stockholders of the Corporation must be effected at
a duly called annual or special meeting of stockholders of the Corporation and
may not be effected by any consent in writing by the stockholders.
7. Stockholders' Meetings. Subject to the rights of the holders of
shares of any class or series of Preferred Stock in respect of meetings of the
holders of such shares, meetings of stockholders of the Corporation may be
called only by the Chairman of the Board of Directors, if any, or the Board of
Directors pursuant to a resolution adopted by majority vote of the Board of
Directors.
8. Rights of Preferred Stock. Notwithstanding the foregoing, whenever
the holders of any class or series of Preferred Stock shall have the right,
voting separately by class or series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Certificate of Incorporation specifically applicable thereto.
Notwithstanding anything contained in this Certificate of Incorporation
to the contrary, the affirmative vote of at least 80 percent of the voting power
of the stock of the Corporation entitled to vote in the election of Directors
generally, voting together as a single class, shall be required to amend, repeal
or adopt any provision inconsistent with this Article FIFTH.
SIXTH:
1. Indemnification Other than Actions by or on Behalf of the
Corporation. The Corporation shall indemnify and hold harmless to the fullest
extent permitted by Applicable Law, as it presently exists or may hereafter be
amended, any person who was or is a party or is threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of the Corporation), by reason of the fact that he or she is or was a
director, trustee, officer, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director, partner, trustee,
officer, employee or agent of another Entity against all liability, losses,
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or her in connection with
such action, suit or proceeding if he or she acted in good faith and in a manner
he or she reasonably believed to be in or not opposed to the best interests of
the
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Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his or her conduct was unlawful. The termination of
any action, suit or proceeding by judgment, order, settlement, conviction or
upon a plea of nolo contendere or its equivalent, shall not, of itself, create a
presumption that the person did not act in good faith and in a manner which he
or she reasonably believed to be in or not opposed to the best interest of the
Corporation, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
2. Indemnification in Actions by or on Behalf of the Corporation. The
Corporation shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending or completed action or suit by or in
the right of the Corporation to procure a judgment in its favor by reason of the
fact that he or she is or was a director, trustee, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, partner, trustee, officer, employee or agent of another Entity against
expenses (including attorneys' fees) actually and reasonably incurred by him or
her in connection with the defense or settlement of such action or suit if he or
she acted in good faith and in a manner he or she reasonably believed to be in
or not opposed to the best interests of the Corporation and except that no
indemnification shall be made in respect of any claim, issue or matter as to
which such person shall have been adjudged to be liable to the Corporation
unless and only to the extent that the Court of Chancery of the State of
Delaware or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of all
the circumstances of the case, such person is fairly and reasonably entitled to
indemnity for such expenses which the Court of Chancery of the State of Delaware
or such other court shall deem proper.
3. Additional Indemnification as to Expenses. Without intending to
limit the generality of the indemnification provided in Sections 1 and 2 of
Article SIXTH and in addition thereto, to the extent that any person referred to
in Sections 1 and 2 of this Article SIXTH has been successful on the merits or
otherwise in defense of any action, suit or proceeding referred to therein, or
in defense of any claim, issue or matter therein, he or she shall be indemnified
against expenses (including attorneys' fees) actually and reasonably incurred by
him or her in connection therewith.
4. Authorization. Any indemnification under Sections 1 and 2 of this
Article SIXTH (unless ordered by a court) shall be made by the Corporation only
as authorized in the specific case upon a determination that indemnification of
the director, trustee, partner, officer, employee or agent is proper in the
circumstances because he or she has met the applicable standard of conduct set
forth in such Sections 1 and 2 of this Article SIXTH. Such determination shall
be made (i) by a majority vote of the directors who are not parties to such
action, suit or proceeding, even though less than a quorum, (ii) if there are no
such directors, or if such directors so direct, by independent legal counsel in
a written opinion, or (iii) by the stockholders.
5. Expense Advance. Expenses (including attorneys' fees) incurred by an
officer or director of the Corporation in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that he or she
is not entitled to be indemnified by the Corporation as authorized in this
Article SIXTH. Such expenses (including attorneys' fees)
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incurred by other persons referred to in Sections 1 and 2 of this Article SIXTH
may be so paid upon such terms and conditions, if any, as the Board of Directors
deems appropriate.
6. Nonexclusivity. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Article SIXTH
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any statute,
by-law, agreement, vote of stockholders or disinterested directors or otherwise,
both as to action in his or her official capacity and as to action in another
capacity while holding such office.
7. Insurance. The Corporation shall have the power to purchase and
maintain insurance on behalf of any person who is or was a director, trustee,
officer, employee or agent of the Corporation, or is or was serving at the
request of the Corporation as a director, trustee, partner, officer, employee or
agent of another corporation, partnership, limited liability company, joint
venture, trust or other enterprise against any liability asserted against him or
her and incurred by him or her in any such capacity, or arising out of his or
her status as such, whether or not the Corporation would have the power to
indemnify such person against such liability under the provisions of this
Article SIXTH.
8. "The Corporation". For purposes of this Article SIXTH, references to
"the Corporation" include, in addition to the resulting Corporation, any
constituent corporation (including any constituent of a constituent) absorbed in
a consolidation or merger which, if its separate existence had continued, would
have had power and authority to indemnify its directors, officers, trustees,
employees or agents so that any person who is or was a director, officer,
trustee, employee or agent of such constituent corporation, or is or was serving
at the request of such constituent corporation as a director, trustee, partner,
officer, employee or agent of another Entity shall stand in the same position
under the provisions of this Article SIXTH with respect to the resulting or
surviving corporation as he or she would have with respect to such constituent
corporation if its separate existence had continued.
9. "Other Enterprises". For purposes of this Article SIXTH, references
to "other enterprises" or "entities" shall include employee benefit plans;
references to "fines" shall include any excise taxes assessed on a person with
respect to an employee benefit plan; and references to "serving at the request
of the Corporation" shall include any service as a director, trustee, officer,
employee or agent of the Corporation which imposes duties on, or involves
services by, such director, trustee, officer, employee, or agent with respect to
an employee benefit plan, its participants, or beneficiaries; and a person who
acted in good faith and in a manner he or she reasonably believed to be in the
interest of the participants and beneficiaries of an employee benefit plan shall
be deemed to have acted in a manner "not opposed to the best interests of the
Corporation" as referred to in this Article SIXTH.
10. Continuation of Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Article SIXTH
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, partner, trustee, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
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11. Other Indemnification. The Corporation's obligation, if any, to
indemnify any person who was or is serving at its request as a director,
trustee, partner, officer, employee or agent of another Entity shall be reduced
by any amount such person collects as indemnification from such other
corporation, partnership, limited liability company, joint venture, trust or
other enterprise or from insurance.
12. No Amendment. No amendment or repeal of the provisions of this
Article SIXTH shall adversely affect any right or protection hereunder of any
person in respect of any act or omission occurring prior to the time of such
amendment or repeal.
SEVENTH: A director of the Corporation shall not be liable to the
Corporation or its stockholders for monetary damages for breach of fiduciary
duty as a director, except to the extent that exculpation from liability is not
permitted under the General Corporation Law of Delaware as in effect when such
breach occurred. Neither the amendment or repeal of this Article SEVENTH, nor
the adoption of any provision of this Certificate of Incorporation inconsistent
with this Article SEVENTH, shall eliminate, reduce or adversely affect the
effect of this Article SEVENTH in respect of any act or omission occurring, or
any cause of action, suit or claim that, but for this Article SEVENTH, would
accrue or arise, prior to such amendment, repeal or adoption of an inconsistent
provision.
EIGHTH: In furtherance and not in limitation of the powers conferred by
the Laws of the State of Delaware, the Board of Directors is expressly
authorized and empowered to amend, alter, change and repeal the By-Laws. The
By-Laws of the Corporation may be amended, altered, changed or repealed, and a
provision or provisions inconsistent with the provisions of the By-Laws as they
exist from time to time may be adopted, only by the majority of the entire Board
of Directors or with the approval of the holders of not less than sixty-six and
two-thirds percent (662/3%) of the voting power of all outstanding shares of
capital stock of the Corporation entitled to vote generally in the election of
directors (except that the affirmative vote of at least 80% of the voting power
of the capital stock of the Corporation entitled to vote in the election of
Directors generally, voting together as a single class, shall be required to
amend, repeal or adopt any provision inconsistent with the provisions of the
By-Laws establishing classes of directors, limiting the rights of the
stockholders to remove or nominate directors or bring business before annual
meetings of stockholders, filling vacancies of the Board of Directors and
providing for limitations on calling special meetings of the stockholders).
NINTH: Except for the provisions in Articles FOURTH, SIXTH, SEVENTH,
AND EIGHTH, and this Article NINTH, none of which provisions or authorization
shall be amended, altered, changed or repealed except with the approval of the
holders of not less than sixty-six and two-thirds percent (662/3%) of the voting
power of all outstanding shares of capital stock of the Corporation entitled to
vote generally in the election of directors, voting together as a single class,
and any other provisions contained in this Certificate of Incorporation that by
their terms require a higher vote, the Corporation reserves the right at any
time and from time to time to amend, alter, change or repeal any provision
contained in this Certificate of Incorporation (including provisions as may
hereafter be added or inserted in this Certificate of Incorporation as
authorized by the Laws of the State of Delaware) in the manner now or hereafter
prescribed by Delaware General
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Corporation Law. All rights, preferences and privileges of whatsoever nature
conferred upon stockholders, directors or any other person whomsoever by and
pursuant to this Certificate of Incorporation in its present form or as
hereafter amended are granted subject to the rights reserved in this Article
NINTH.
IN WITNESS WHEREOF, the Corporation has caused this Certificate to be
executed by its Chairman of the Board and Chief Executive Officer and attested
by its Assistant Secretary this 2nd day of February, 1996.
IRON MOUNTAIN INCORPORATED
By: /s/ C. Richard Reese
Name: C. Richard Reese
Title: Chairman of the Board and
Chief Executive Officer
ATTEST:
By: /s/ Garry B. Watzke
Name: Garry B. Watzke
Title: Assistant Secretary