EXHIBIT 3.2
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AMENDED AND RESTATED
BY - LAWS
of
Iron Mountain Incorporated
(a Delaware corporation)
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as amended through January 6, 1998
TABLE OF CONTENTS
ARTICLE I OFFICES..............................................................................................1
SECTION 1. Registered Office. ........................................................1
SECTION 2. Other Offices. ............................................................1
ARTICLE II MEETING OF STOCKHOLDERS.............................................................................1
SECTION 1. Place of Meeting............................................................1
SECTION 2. Annual Meetings. ..........................................................1
SECTION 3. Special Meetings............................................................1
SECTION 4. Introduction of Business At a Meeting of Stockholders.......................1
SECTION 5. Notice......................................................................2
SECTION 6. Quorum and Adjournments.....................................................3
SECTION 7. Votes; Proxies. ...........................................................3
SECTION 8. Organization. .............................................................4
ARTICLE III DIRECTORS..........................................................................................4
SECTION 1. Number......................................................................4
SECTION 2. Nomination of Directors.....................................................5
SECTION 3. Removal.....................................................................6
SECTION 4. Vacancies...................................................................6
SECTION 5. Meetings....................................................................6
SECTION 6. Votes.......................................................................7
SECTION 7. Quorum and Adjournment......................................................7
SECTION 8. Compensation................................................................7
SECTION 9. Action By Consent of Directors..............................................7
ARTICLE IV COMMITTEES OF DIRECTORS.............................................................................7
SECTION 1. Executive Committee.........................................................7
SECTION 2. Audit Committee.............................................................8
SECTION 3. Other Committees............................................................9
SECTION 4. Term of Office..............................................................9
ARTICLE V OFFICERS.............................................................................................9
SECTION 1. Officers....................................................................9
SECTION 2. Vacancies..................................................................10
SECTION 3. Chairman of the Board......................................................10
SECTION 4. President..................................................................10
SECTION 5. Executive Vice Presidents, Senior Vice Presidents and
Vice Presidents............................................................10
SECTION 6. Secretary..................................................................10
SECTION 7. Assistant Secretaries......................................................10
SECTION 8. Treasurer..................................................................11
SECTION 9. Assistant Treasurers.......................................................11
SECTION 10. Controller.................................................................11
SECTION 11. Assistant Controllers......................................................11
SECTION 12. Subordinate Officers.......................................................11
SECTION 13. Compensation...............................................................11
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 2
SECTION 14. Removal....................................................................11
SECTION 15. Bonds......................................................................11
ARTICLE VI CERTIFICATES OF STOCK..............................................................................12
SECTION 1. Form and Execution of Certificates.........................................12
SECTION 2. Transfer of Shares.........................................................12
SECTION 3. Closing of Transfer Books..................................................13
SECTION 4. Fixing Date for Determination of Stockholders of Record....................13
SECTION 5. Lost or Destroyed Certificates.............................................13
SECTION 6. Uncertificated Shares......................................................14
SECTION 7. Transfer Agents and Registrars; Further Regulations. .....................14
ARTICLE VII EXECUTION OF DOCUMENTS............................................................................15
SECTION 1. Execution of Checks, Notes, etc............................................15
SECTION 2. Execution of Contracts, Assignments, etc...................................15
SECTION 3. Execution of Proxies.......................................................15
ARTICLE VIII INSPECTION OF BOOKS..............................................................................15
ARTICLE IX FISCAL YEAR......................................................................................16
ARTICLE X SEAL.............................................................................................16
ARTICLE XI AMENDMENTS.......................................................................................16
ARTICLE XII RESTRICTIONS ON TRANSFER OF CERTAIN SHARES
OF CAPITAL STOCK OF THE CORPORATION.......................................................16
SECTION 1. Restrictions on Transfer....................................................16
SECTION 2. Legend on Stock Certificates................................................17
SECTION 3. Termination of Restrictions on Transfers....................................17
ARTICLE XIII RESTRICTIONS ON TRANSFER OF CERTAIN SHARES
OF CAPITAL STOCK OF THE CORPORATION.......................................................17
SECTION 1. Restrictions on Transfer....................................................17
SECTION 2. Legend on Stock Certificates................................................18
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 3
Iron Mountain Incorporated
(a Delaware corporation)
BY-LAWS
ARTICLE I OFFICE
SECTION 1. Registered Office. The registered office of the Corporation
shall be located in Dover, County of Kent, State of Delaware, and the name of
the resident agent in charge thereof shall be The Prentice-Hall Corporation
System, Inc.
SECTION 2. Other Offices. The Corporation may also have offices at such
other places, within or without the State of Delaware, as the Board of Directors
may from time to time appoint or the business of the Corporation may require.
ARTICLE II MEETING OF STOCKHOLDERS
SECTION 1. Place of Meeting. Meetings of the stockholders shall be held
either within or without the State of Delaware at such place as the Board of
Directors may fix from time to time.
SECTION 2. Annual Meetings. The annual meeting of stockholders shall be
held for the election of directors on such date and at such time as the Board of
Directors may fix from time to time. Any other proper business may be transacted
at the annual meeting.
SECTION 3. Special Meetings. Special meetings of the stockholders for
any purpose or purposes may be called only by the Chairman of the Board, if any,
or the Board of Directors pursuant to a resolution adopted by a majority vote of
the Board of Directors.
SECTION 4. Introduction of Business At a Meeting of Stockholders. At an
annual or special meeting of stockholders, only such business shall be
conducted, and only such proposals shall be acted upon, as shall have been
properly brought before such annual or special meeting of stockholders. To be
properly brought before an annual or special meeting of stockholders, business
must be (i) in the case of a special meeting, specified in the notice of the
special meeting (or any supplement thereto) given by or at the direction of the
Board of Directors or otherwise properly brought before the meeting by the Board
of Directors, or (ii) in the case of an annual meeting, properly brought before
the meeting by or at the direction of the Board of Directors, or otherwise
properly brought before the annual meeting by a stockholder. For business to be
properly brought before an annual meeting of stockholders by a stockholder, the
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A Delaware Corporation
Page 2
stockholder must have given timely notice thereof in writing to the Secretary of
the Corporation. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation not
less than 45 days1 prior to the date of the annual meeting; provided, however,
that if less than 55 days' written notice or prior public disclosure of the date
of the annual meeting is given or made to stockholders or to the stockholder
proposing a matter, notice by the stockholder to be timely must be so delivered
or received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of the meeting was
mailed to such stockholder or the stockholders generally or (ii) the day on
which such public disclosure was made.
A stockholder's notice to the Secretary shall set forth as to each
matter the stockholder proposes to bring before an annual meeting of
stockholders (i) a brief description of the business desired to be brought
before the annual meeting and the reasons for conducting such business at the
annual meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business and any other stockholders
known by such stockholder to be supporting such proposal, (iii) the class and
number of shares of the Corporation which are beneficially owned by such
stockholder on the date of such stockholder's notice and by any other
stockholders known by such stockholder to be supporting such proposal on the
date of such stockholder's notice, and (iv) any material interest of the
stockholder in such proposal.
Notwithstanding anything in these By-Laws to the contrary, no business
shall be conducted at a meeting of stockholders except in accordance with the
procedures set forth in this Section 4. The Chairman of the meeting shall, if
the facts warrant, determine and declare to the meeting that the business was
not properly brought before the meeting in accordance with the procedures
prescribed by these By-Laws, and if he should so determine, he shall so declare
to the meeting and any such business not properly brought before the meeting
shall not be transacted.
The foregoing requirements shall be in addition to any other
requirements imposed by applicable law or regulation.
SECTION 5. Notice. Written or printed notice of every meeting of
stockholders, annual or special, stating the hour, date and place thereof, and
the purpose or purposes in general terms for which the meeting is called shall,
not less than ten (10) days, or such longer period as shall be provided by law,
the Certificate of Incorporation, these By-Laws, or otherwise, and not more than
sixty (60) days before such meeting, be served upon or mailed to each
stockholder entitled to vote thereat, at the address of such stockholder as it
appears upon the stock records of the Corporation or, if such stockholder shall
have filed with the Secretary of the Corporation a written request that notices
be mailed to some other address, then to the address designated in such request.
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1 Amended 5/1/96.
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
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Notice of the hour, date, place and purpose of any meeting of
stockholders may be dispensed with if every stockholder entitled to vote thereat
shall attend either in person or by proxy and shall not, at the beginning of the
meeting, object to the holding of such meeting because the meeting has not been
lawfully called or convened, or if every absent stockholder entitled to such
notice shall in writing, filed with the records of the meeting, either before or
after the holding thereof, waive such notice.
SECTION 6. Quorum and Adjournments. Except as otherwise provided by law
or by the Certificate of Incorporation, the presence in person or by proxy at
any meeting of stockholders of the holders of a majority of the voting power of
the shares of the capital stock of the Corporation issued, outstanding and
entitled to vote thereat, shall be requisite and shall constitute a quorum. If
two or more classes of stock are entitled to vote as separate classes upon any
question, then, in the case of each such class, a quorum for the consideration
of such question shall, except as otherwise provided by law or by the
Certificate of Incorporation, consist of a majority of the voting power of all
stock of that class issued, outstanding and entitled to vote. If a majority of
the voting power of shares of capital stock of the Corporation issued and
outstanding and entitled to vote thereat or, where a larger quorum is required,
such quorum, shall not be represented at any meeting of the stockholders
regularly called, the holders of a majority of the voting power of the shares
present or represented by proxy and entitled to vote thereat shall have power to
adjourn the meeting to another time, or to another time and place, without
notice other than announcement of adjournment at the meeting, and there may be
successive adjournments for like cause and in like manner until the requisite
amount of shares entitled to vote at such meeting shall be represented;
provided, however, that if the adjournment is for more than thirty (30) days,
notice of the hour, date and place of the adjourned meeting shall be given to
each stockholder entitled to vote thereat. Subject to the requirements of law
and the Certificate of Incorporation, on any issue on which two or more classes
of stock are entitled to vote separately, no adjournment shall be taken with
respect to any class for which a quorum is present unless the Chairman of the
meeting otherwise directs. At any meeting held to consider matters which were
subject to adjournment for want of a quorum at which the requisite amount of
shares entitled to vote thereat shall be represented, any business may be
transacted which might have been transacted at the meeting as originally
noticed.
SECTION 7. Votes; Proxies. Except as otherwise provided in the
Certificate of Incorporation, at each meeting of stockholders, every stockholder
of record at the closing of the transfer books, if closed, or on the date set by
the Board of Directors for the determination of stockholders entitled to vote at
such meeting, shall have one vote for each share of stock entitled to vote which
is registered in such stockholder's name on the books of the Corporation.
At each such meeting every stockholder entitled to vote shall be
entitled to do so in person, or by proxy appointed by an instrument in writing
or as otherwise permitted by law subscribed by such stockholder and bearing a
date not more than three (3) years prior to the meeting in question, unless said
instrument provides for a longer period during which it is to remain in force. A
duly executed proxy shall be irrevocable if it states that it is irrevocable and
if, and only as long as, it is coupled with an interest sufficient in law to
support an irrevocable power. A proxy may be made irrevocable regardless of
whether the interest with which it is
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A Delaware Corporation
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coupled is an interest in the stock itself or any interest in the Corporation
generally. A stockholder may revoke any proxy which is not irrevocable by
attending the meeting and voting in person or by filing with the Secretary of
the Corporation an instrument in writing or as otherwise permitted by law
revoking the proxy or another duly executed proxy bearing a later date.
Voting at meetings of stockholders need not be by written ballot and,
except as otherwise provided by law, need not be conducted by inspectors of
election unless so determined by the Chairman of the meeting or by the holders
of shares of stock having a majority of the votes which could be cast by the
holders of all outstanding shares of stock entitled to vote thereon which are
present in person or represented by proxy at such meeting. If it is required or
determined that inspectors of election be appointed, the Chairman shall appoint
two or more inspectors of election, who shall first take and subscribe an oath
or affirmation faithfully to execute the duties of inspectors at such meeting
with strict impartiality and according to the best of their ability. The
inspectors so appointed shall take charge of the polls and, after the balloting,
shall make a certificate of the result of the vote taken. No director or
candidate for the office of director shall be appointed as such inspector.
At any meeting at which a quorum is present, a plurality of the votes
properly cast for election to fill any vacancy on the Board of Directors shall
be sufficient to elect a candidate to fill such vacancy, and a majority of the
votes properly cast upon any other question shall decide the question, except in
any case where a larger vote is required by law, the Certificate of
Incorporation, these By-Laws, or otherwise.
SECTION 8. Organization. The Chairman of the Board, if there be one, or
in his or her absence the Vice Chairman, or in the absence of a Vice Chairman,
the President, or in the absence of the President, a Vice President, shall call
meetings of the stockholders to order and shall act as chairman thereof. The
Secretary of the Corporation, if present, shall act as secretary of all meetings
of stockholders, and, in his or her absence, the presiding officer may appoint a
secretary.
ARTICLE III DIRECTORS
SECTION 1. Number. The business and affairs of the Corporation shall be
conducted and managed by a Board of Directors, none of whom needs to be a
stockholder. The number of directors for each year shall be fixed by the Board
of Directors (and not by the stockholders) from time to time, but shall not be
less than three nor more than fifteen persons. If the number is not so fixed,
the number shall remain as it stood immediately prior to such meeting.
The directors, other than those who may be elected by the holders of
any class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation, shall be divided, with respect to the time for
which they severally hold office, into three classes, as nearly equal in number
as possible, as determined by the Board of Directors. One class shall hold
office initially for a term expiring at the annual meeting of stockholders to be
held in 1996, another class to hold office initially for a term expiring at the
annual meeting of stockholders in 1997, and another class to hold office
initially for a term expiring at the annual meeting of
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A Delaware Corporation
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stockholders to be held in 1998, with each member of each class to hold office
until his or her successor is elected and qualified, or until his or her earlier
death, resignation or removal. At each succeeding annual meeting of the
stockholders of the Corporation, the successors of the class of directors whose
term expires at that meeting shall be elected by plurality vote to hold office
for a term expiring at the annual meeting for stockholders held in the third
year following the year of their election.
At any time during any year, except as otherwise provided by law, the
Certificate of Incorporation or these By-Laws, the number of directors may be
increased or reduced, in each case by vote of a majority of the directors in
office at the time of such increase or decrease, regardless of whether such
majority constitutes a quorum, provided that no such decrease shall affect the
term of any director then in office.
SECTION 2. Nomination of Directors. Only persons nominated in
accordance with the procedures set forth in this Section 2 shall be eligible for
election as directors. Nominations of persons for election to the Board of
Directors may be made at a meeting of stockholders (i) by or at the direction of
the Board of Directors, or (ii) by any stockholder of the Corporation entitled
to vote for the election of directors at such meeting who complies with the
notice procedures set forth in this Section 2. Such nominations, other than
those made by or at the direction of the Board, shall be made pursuant to timely
notice in writing to the Secretary of the Corporation. To be timely, a
stockholder's notice must be delivered to or mailed and received at the
principal executive offices of the Corporation not less than 45 days2 prior to
the date of a meeting; provided, however, that if fewer than 55 days' written
notice or prior public disclosure of the date of the meeting is given or made to
stockholders or to the stockholder proposing a director or directors for
election, notice by the stockholder to be timely must be so delivered or
received not later than the close of business on the 10th day following the
earlier of (i) the day on which such notice of the date of such meeting was
mailed to such stockholder or stockholders generally or (ii) the day on which
such public disclosure was made.
A stockholder's notice to the Secretary shall set forth (i) as to each
person whom the stockholder proposes to nominate for election or reelection as a
director (a) the name, age, business address and residence address of such
person, (b) the principal occupation or employment of such person, (c) the class
and number of shares of the Corporation which are beneficially owned by such
person on the date of such stockholder's notice and (d) any other information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors, or is otherwise required, in each case
pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended
(including without limitation such person's written consent to being named in
the proxy statement as a nominee and to serving as a director if elected), and
(ii) as to the stockholder giving the notice, (a) the name and address, as they
appear on the Corporation's books, of such stockholder and any other
stockholders known by such stockholder to be supporting such nominees and (b)
the class and number of shares of the Corporation which are beneficially owned
by such stockholder on the date of such stockholder's
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2 Amended 5/1/96.
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 6
notice and by any other stockholders known by such stockholder to be supporting
such nominees on the date of such stockholder's notice.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 2. The Chairman of the meeting shall, if the facts warrant, determine
and declare to the meeting that a nomination was not made in accordance with the
procedures prescribed by the By-Laws, and if he should so determine, he shall so
declare to the meeting and the defective nomination shall be disregarded.
The foregoing requirements shall be in addition to any other
requirements imposed by applicable law or regulation.
SECTION 3. Removal. Subject to the rights of the holders of any class
or series of stock having a preference over the Common Stock as to dividends or
upon liquidation to elect additional directors under specified circumstances,
any director may be removed from office by the stockholders in the manner
provided in this Section 3 of Article III. At any annual meeting of the
stockholders of the Corporation or at any special meeting of the stockholders of
the Corporation, the notice of which shall state that the removal of a director
or directors is among the purposes of the meeting, the affirmative vote of the
holders of at least 80 percent of the combined voting power of the outstanding
shares of capital stock of the Corporation entitled to vote in the election of
directors generally, voting together as a single class, may remove such director
or directors only for cause.
SECTION 4. Vacancies. If any vacancy shall occur among the directors,
or if the number of directors shall at any time be increased, such vacancy shall
be filled only by the directors then in office, although less than a quorum, by
a majority vote of the directors then in office or by the sole remaining
director, or, if no directors then remain, by the stockholders of the
Corporation.
SECTION 5. Meetings. Meetings of the Board of Directors shall be held
at such place, within or without the State of Delaware, as may from time to time
be fixed by resolution of the Board of Directors or by the Chairman of the
Board, if there be one, or by the President, and as may be specified in the
notice or waiver of notice of any meeting. Meetings may be held at any time upon
the call of the Chairman of the Board, if there be one, or the President or any
two (2) of the directors in office by oral, telegraphic, telex, telecopy or
other form of electronic transmission, or written notice, duly served or sent or
mailed to each director not less than twenty-four (24) hours before such
meeting, except that, if mailed, not less than seventy-two (72) hours before
such meeting.
Meetings may be held at any time and place without notice if all the
directors are present and do not object to the holding of such meeting for lack
of proper notice or if those not present shall, in writing or by telegram,
telex, telecopy or other form of electronic transmission, waive notice thereof
before or after the meeting. A regular meeting of the Board may be held without
notice immediately following the annual meeting of stockholders at the place
where such meeting is held. Regular meetings of the Board may also be held
without notice at such time and place
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A Delaware Corporation
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as shall from time to time be determined by resolution of the Board. Except as
otherwise provided by law, the Certificate of Incorporation or otherwise,
neither the business to be transacted at, nor the purpose of, any regular or
special meeting of the Board of Directors or any committee thereof need be
specified in any written waiver of notice.
Members of the Board of Directors or any committee thereof may
participate in a meeting of such Board or committee by means of conference
telephone or similar communications equipment by means of which all persons
participating in the meeting can hear each other and participation in a meeting
pursuant to the foregoing provisions shall constitute presence in person at the
meeting.
SECTION 6. Votes. Except as otherwise provided by law, the Certificate
of Incorporation or these By-Laws, the vote of the majority of the directors
present at a meeting at which a quorum is present shall be the act of the Board
of Directors.
SECTION 7. Quorum and Adjournment. Except as otherwise provided by law,
the Certificate of Incorporation or these By-Laws, a majority of the directors
shall constitute a quorum for the transaction of business. If at any meeting of
the Board there shall be less than a quorum present, a majority of those present
may adjourn the meeting from time to time without notice other than announcement
of the adjournment at the meeting, and at such adjourned meeting at which a
quorum is present any business may be transacted which might have been
transacted at the meeting as originally noticed.
SECTION 8. Compensation. Directors may receive compensation for their
services, as such, and for service on any committee of the Board of Directors,
as fixed by resolution of the Board of Directors and for expenses of attendance
at each regular or special meeting of the Board or any Committee thereof.
Nothing in this Section shall be construed to preclude a director from serving
the Corporation in any other capacity and receiving compensation therefor.
SECTION 9. Action By Consent of Directors. Any action required or
permitted to be taken at any meeting of the Board of Directors or of any
committee thereof may be taken without a meeting if all members of the Board or
committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
Such consent shall be treated as a vote adopted at a meeting for all purposes.
Such consents may be executed in one or more counterparts and not every Director
or committee member need sign the same counterpart.
ARTICLE IV COMMITTEES OF DIRECTORS
SECTION 1. Executive Committee. The Board of Directors may, by
resolution passed by a majority of the whole Board, appoint an Executive
Committee of two (2) or more members, to serve during the pleasure of the Board,
to consist of such directors as the Board may from time to time designate. The
Board of Directors shall designate the Chairman of the Executive Committee.
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A Delaware Corporation
Page 8
a. Procedure. The Executive Committee shall, by a vote of a
majority of its members, fix its own times and places of
meeting, determine the number of its members constituting a
quorum for the transaction of business, and prescribe its own
rules of procedure, no change in which shall be made save by a
majority vote of its members.
b. Responsibilities. During the intervals between the meetings of
the Board of Directors, except as otherwise provided by the
Board of Directors in establishing such Committee or
otherwise, the Executive Committee shall possess and may
exercise all the powers of the Board in the management and
direction of the business and affairs of the Corporation;
provided, however, that the Executive Committee shall not,
except to the extent otherwise provided in the Certificate of
Incorporation or a resolution providing for the issuance of
shares of stock adopted by the Board of Directors as provided
in Section 151(a) of the Delaware General Business Corporation
Law, have the power:
(1) to amend or authorize the amendment of the
Certificate of Incorporation or these By-Laws;
(2) to authorize the issuance of stock;
(3) to authorize the payment of any dividend;
(4) to adopt an agreement of merger or consolidation
of the Corporation or to recommend to the
stockholders the sale, lease or exchange of all or
substantially all the property and business of the
Corporation;
(5) to recommend to the stockholders a dissolution,
or a revocation of a dissolution, of the Corporation;
or
(6) to adopt a certificate of ownership and merger
pursuant to Section 253 of the Delaware Business
Corporation Law.
c. Reports. The Executive Committee shall keep regular minutes of
its proceedings, and all action by the Executive Committee
shall be reported promptly to the Board of Directors. Such
action shall be subject to review, amendment and repeal by the
Board, provided that no rights of third parties shall be
adversely affected by such review, amendment or repeal.
SECTION 2. Audit Committee. The Board of Directors may, by resolution
passed by a majority of the whole Board, appoint an Audit Committee of two (2)
or more members who shall not be officers (the Chairman of the Board and the
Vice Chairman of the Board, if any, not being deemed officers for this purpose)
or employees of the Corporation to serve during the
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pleasure of the Board. The Board of Directors shall designate the Chairman of
the Audit Committee.
a. Procedure. The Audit Committee, by a vote of a majority of its
members, shall fix its own times and places of meeting, shall
determine the number of its members constituting a quorum for
the transaction of business, and shall prescribe its own rules
of procedure, no change in which shall be made save by a
majority vote of its members.
b. Responsibilities. The Audit Committee shall review the annual
financial statements of the Corporation prior to their
submission to the Board of Directors, shall consult with the
Corporation's independent auditors, and may examine and
consider such other matters in relation to the internal and
external audit of the Corporation's accounts and in relation
to the financial affairs of the Corporation and its accounts,
including the selection and retention of independent auditors,
as the Audit Committee may, in its discretion, determine to be
desirable.
c. Reports. The Audit Committee shall keep regular minutes of its
proceedings, and all action by the Audit Committee shall, from
time to time, be reported to the Board of Directors as it
shall direct. Such action shall be subject to review,
amendment and repeal by the Board, provided that no rights of
third parties shall be adversely affected by such review,
amendment or repeal.
SECTION 3. Other Committees. The Board of Directors may, by resolution
passed by a majority of the whole Board, at any time appoint one or more other
committees from its own number. Every such committee must include at least one
member of the Board of Directors. The Board may from time to time designate or
alter, within the limits permitted by law, the Certificate of Incorporation and
this Article, if applicable, the duties, powers and number of members of such
other committees or change their membership, and may at any time abolish such
other committees or any of them.
a. Procedure. Each committee appointed pursuant to this Section
shall, by a vote of a majority of its members, fix its own
times and places of meeting, determine the number of its
members constituting a quorum for the transaction of business,
and prescribe its own rules of procedure, no change in which
shall be made save by a majority vote of its members.
b. Responsibilities. Each committee appointed pursuant to this
Section shall exercise the powers assigned to it by the Board
of Directors in its discretion.
c. Reports. Each committee appointed pursuant to this Section
shall keep regular minutes of proceedings, and all action by
each such committee shall, from time to time, be reported to
the Board of Directors as it shall direct. Such action shall
be subject to review, amendment and repeal by the Board,
provided that no rights of third parties shall be adversely
affected by such review, amendment or repeal.
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A Delaware Corporation
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SECTION 4. Term of Office. Each member of a committee shall hold office
until the first meeting of the Board of Directors following the annual meeting
of stockholders (or until such other time as the Board of Directors may
determine, either in the vote establishing the committee or at the election of
such member or otherwise) and until his or her successor is elected and
qualified, or until he or she sooner dies, resigns, is removed, is replaced by
change of membership or becomes disqualified by ceasing to be a director (where
membership on the Board is required), or until the committee is sooner abolished
by the Board of Directors.
ARTICLE V OFFICERS
SECTION 1. Officers. The Board of Directors shall elect a President, a
Secretary and a Treasurer, and, in their discretion, may elect a Chairman of the
Board, a Vice Chairman of the Board, a Controller, and one or more Executive
Vice Presidents, Senior Vice Presidents, Vice Presidents, Assistant Secretaries,
Assistant Treasurers and Assistant Controllers and such other officers as deemed
necessary or appropriate. Such officers shall be elected annually by the Board
of Directors at its first meeting following the annual meeting of stockholders
(or at such other meeting as the Board of Directors determines), and each shall
hold office for the term provided by the vote of the Board, except that each
will be subject to removal from office in the discretion of the Board as
provided herein. The powers and duties of more than one office may be exercised
and performed by the same person.
SECTION 2. Vacancies. Any vacancy in any office may be filled for the
unexpired portion of the term by the Board of Directors at any regular or
special meeting.
SECTION 3. Chairman of the Board. The Chairman of the Board of
Directors, if any, shall be the chief executive officer of the Corporation, and,
subject to the direction of the Board of Directors, shall have general charge of
the management and direction of the business, affairs and property of the
Corporation, and general supervision over its other officers and agents, and,
when present, shall preside at all meetings of the stockholders and the Board of
Directors. The Chairman of the Board of Directors shall perform such other
duties and have such other powers as the Board of Directors shall designate from
time to time.
SECTION 4. President. The President shall be the chief operating
officer of the Corporation. In general, he shall perform all duties incident to
the office of President and chief operating officer and shall see that all
orders and resolutions of the Board of Directors are carried into effect and
shall perform such other executive, supervisory and management functions and
duties as may be assigned to him from time to time by the Board of Directors or
the Chairman of the Board.
SECTION 5. Executive Vice Presidents, Senior Vice Presidents and Vice
Presidents. Each Executive Vice President, Senior Vice President and Vice
President shall have and exercise such powers and shall perform such duties as
from time to time may be assigned to him or to her by the Board of Directors or
the President.
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 11
SECTION 6. Secretary. The Secretary shall keep the minutes of all
meetings of the stockholders and of the Board of Directors in books provided for
the purpose; shall see that all notices are duly given in accordance with the
provisions of law and these By-Laws; the Secretary shall be custodian of the
records and of the corporate seal or seals of the Corporation; shall see that
the corporate seal is affixed to all documents the execution of which, on behalf
of the Corporation under its seal, is duly authorized, and, when the seal is so
affixed, he or she may attest the same; and, in general, the Secretary shall
perform all duties incident to the office of secretary of a corporation, and
such other duties as from time to time may be assigned to him or her by the
Board of Directors.
SECTION 7. Assistant Secretaries. The Assistant Secretaries in order of
their seniority shall, in the absence or disability of the Secretary, perform
the duties and exercise the powers of the Secretary and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Secretary.
SECTION 8. Treasurer. The Treasurer shall have charge of and be
responsible for all funds, securities, receipts and disbursements of the
Corporation, and shall deposit, or cause to be deposited, in the name of the
Corporation, all monies or other valuable effects in such banks, trust companies
or other depositaries as shall, from time to time, be selected by the Board of
Directors; may endorse for collection on behalf of the Corporation checks, notes
and other obligations; may sign receipts and vouchers for payments made to the
Corporation; may sign checks of the Corporation, singly or jointly with another
person as the Board of Directors may authorize, and pay out and dispose of the
proceeds under the direction of the Board; the Treasurer shall render to the
President and to the Board of Directors, whenever requested, an account of the
financial condition of the Corporation; and in general, shall perform all the
duties incident to the office of treasurer of a corporation, and such other
duties as from time to time may be assigned by the Board of Directors.
SECTION 9. Assistant Treasurers. The Assistant Treasurers in order of
their seniority shall, in the absence or disability of the Treasurer, perform
the duties and exercise the powers of the Treasurer and shall perform such other
duties as the Board of Directors shall prescribe or as from time to time may be
assigned by the Treasurer.
SECTION 10. Controller. The Controller, if elected, shall be the chief
accounting officer of the Corporation and shall perform all duties incident to
the office of a controller of a corporation, and, in the absence of or
disability of the Treasurer or any Assistant Treasurer, perform the duties and
exercise the powers of the Treasurer and shall perform such other duties as the
Board of Directors shall prescribe or as from time to time may be assigned by
the Chairman of the Board, if any, the President or the Treasurer.
SECTION 11. Assistant Controllers. The Assistant Controllers in order
of their seniority shall, in the absence or disability of the Controller,
perform the duties and exercise the powers of the Controller and shall perform
such other duties as the Board of Directors shall prescribe or as from time to
time may be assigned by the Controller.
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A Delaware Corporation
Page 12
SECTION 12. Subordinate Officers. The Board of Directors may appoint
such subordinate officers as it may deem desirable. Each such officer shall hold
office for such period, have such authority and perform such duties as the Board
of Directors may prescribe. The Board of Directors may, from time to time,
authorize any officer to appoint and remove subordinate officers and to
prescribe the powers and duties thereof.
SECTION 13. Compensation. The Board of Directors shall fix the
compensation of all officers of the Corporation. It may authorize any officer,
upon whom the power of appointing subordinate officers may have been conferred,
to fix the compensation of such subordinate officers.
SECTION 14. Removal. Any officer of the Corporation may be removed,
with or without cause, by action of the Board of Directors.
SECTION 15. Bonds. The Board of Directors may require any officer of
the Corporation to give a bond to the Corporation, conditional upon the faithful
performance of his or her duties, with one or more sureties and in such amount
as may be satisfactory to the Board of Directors.
ARTICLE VI CERTIFICATES OF STOCK
SECTION 1. Form and Execution of Certificates. The interest of each
stockholder of the Corporation shall be evidenced by a certificate or
certificates for shares of stock in such form as the Board of Directors may from
time to time prescribe. The certificates of stock of each class shall be
consecutively numbered and signed by the Chairman or Vice Chairman of the Board,
if any, the President, an Executive Vice President, Senior Vice President or a
Vice President and by the Secretary, an Assistant Secretary, the Treasurer or an
Assistant Treasurer of the Corporation, and may be countersigned and registered
in such manner as the Board of Directors may by resolution prescribe, and shall
bear the corporate seal or a printed or engraved facsimile thereof. Where any
such certificate is signed by a transfer agent or transfer clerk acting on
behalf of the Corporation, the signatures of any such Chairman, Vice Chairman,
President, Executive Vice President, Senior Vice President, Vice President,
Treasurer, Assistant Treasurer, Secretary or Assistant Secretary may be
facsimiles, engraved or printed. In case any officer or officers, who shall have
signed, or whose facsimile signature or signatures shall have been used on, any
such certificate or certificates, shall cease to be such officer or officers,
whether because of death, resignation or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the person or persons who signed such certificate or certificates or
whose facsimile signature or signatures shall have been used thereon had not
ceased to be such officer or officers.
In case the corporate seal which has been affixed to, impressed on, or
reproduced in any such certificate or certificates shall cease to be the seal of
the Corporation before such certificate
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 13
or certificates have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered by the Corporation as
though the seal affixed thereto, impressed thereon or reproduced therein had not
ceased to be the seal of the Corporation.
Every certificate for shares of stock which are subject to any
restriction on transfer pursuant to law, the Certificate of Incorporation, these
By-Laws, or any agreement to which the Corporation is a party, shall have the
restriction noted conspicuously on the certificate, and shall also set forth, on
the face or back, either the full text of the restriction or a statement of the
existence of such restriction and (except if such restriction is imposed by law)
a statement that the Corporation will furnish a copy thereof to the holder of
such certificate upon written request and without charge.
Every certificate issued when the Corporation is authorized to issue
more than one class or series of stock shall set forth on its face or back
either the full text of the preferences, voting powers, qualifications, and
special and relative rights of the shares of each class and series authorized to
be issued, or a statement of the existence of such preferences, powers,
qualifications and rights, and a statement that the Corporation will furnish a
copy thereof to the holder of such certificate upon written request and without
charge.
SECTION 2. Transfer of Shares. The shares of the stock of the
Corporation shall be transferred on the books of the Corporation by the holder
thereof in person or by his or her attorney lawfully constituted, upon surrender
for cancellation of certificates for the same number of shares, with an
assignment and power of transfer endorsed thereon or attached thereto, duly
executed, with such proof or guaranty of the authenticity of the signature as
the Corporation or its agents may reasonably require. The Corporation shall be
entitled to treat the holder of record of any share or shares of stock as the
holder in fact thereof and accordingly shall not be bound to recognize any
equitable or other claim to or interest in such share or shares on the part of
any other person whether or not it shall have express or other notice thereof,
save as expressly provided by law, by the Certificate of Incorporation or these
By-Laws. It shall be the duty of each stockholder to notify the Corporation of
his or her post office address.
SECTION 3. Closing of Transfer Books. The stock transfer books of the
Corporation may, if deemed appropriate by the Board of Directors, be closed for
such length of time not exceeding fifty (50) days as the Board of Directors (but
not the stockholders) may determine, preceding the date of any meeting of
stockholders or the date for the payment of any dividend or the date for the
allotment of rights or the date when any issuance, change, conversion or
exchange of capital stock shall go into effect, during which time no transfer of
stock on the books of the Corporation may be made.
SECTION 4. Fixing Date for Determination of Stockholders of Record. In
order that the Corporation may determine the stockholders entitled to notice of
or to vote at any meeting of stockholders or any adjournment thereof, or
entitled to receive payment of any dividend or other distribution or allotment
of any rights, or entitled to exercise any rights in respect of any change,
conversion or exchange of stock or for the purpose of any other lawful action,
the Board of Directors (but not the stockholders) may fix a record date, which
record date shall not
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 14
precede the date upon which the resolution fixing the record date is adopted by
the Board of Directors and which record date: (a) in the case of determination
of stockholders entitled to vote at any meeting of stockholders or adjournment
thereof, shall, unless otherwise required by law, the Certificate of
Incorporation or these By-Laws, not be more than sixty (60) nor less than ten
(10) days before the date of such meeting; and (b) in the case of any other
action, shall not be more than sixty (60) days prior to such other action. If no
record date is fixed: (a) the record date for determining stockholders entitled
to notice of or to vote at a meeting of stockholders shall be at the close of
business on the day next preceding the day on which notice is given, or, if
notice is waived, at the close of business on the day next preceding the day on
which the meeting is held; and (b) the record date for determining stockholders
for any other purpose shall be at the close of business on the day on which the
Board of Directors adopts the resolution relating thereto. A determination of
stockholders of record entitled to notice of or to vote at a meeting of
stockholders shall apply to any adjournment of the meeting; provided, however,
that the Board of Directors (but not the stockholders) may fix a new record date
for the adjourned meeting.
SECTION 5. Lost or Destroyed Certificates. In case of the loss or
destruction of any certificate of stock, a new certificate may be issued under
the following conditions:
a. The owner of said certificate shall file with the Secretary or
any Assistant Secretary of the Corporation an affidavit giving
the facts in relation to the ownership, and in relation to the
loss or destruction of said certificate, stating its number
and the number of shares represented thereby; such affidavit
shall be in such form and contain such statements as shall
satisfy the Chairman or Vice Chairman of the Board, if any,
the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Secretary, any Assistant
Secretary, the Treasurer or any Assistant Treasurer, that said
certificate has been accidentally destroyed or lost, and that
a new certificate ought to be issued in lieu thereof. Upon
being so satisfied, any such officer may require such owner to
furnish the Corporation a bond in such sum and in such form as
he or she may deem advisable, and with a surety or sureties
approved by him or her, to indemnify and save harmless the
Corporation from any claim, loss, damage or liability which
may be occasioned by the issuance of a new certificate in lieu
thereof. Upon such bond being so filed, if so required, a new
certificate for the same number of shares shall be issued to
the owner of the certificate so lost or destroyed; and the
transfer agent and registrar, if any, of stock shall
countersign and register such new certificate upon receipt of
a written order signed by any such officer, and thereupon the
Corporation may save harmless said transfer agent and
registrar in the premises. In case of the surrender of the
original certificate, in lieu of which a new certificate has
been issued, or the surrender of such new certificate, for
cancellation, the bond of indemnity given as a condition of
the issue of such new certificate may be surrendered; or
b. The Board of Directors of the Corporation may by resolution
authorize and direct any transfer agent or registrar of stock
of the Corporation to issue and register
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 15
respectively from time to time without further action or
approval by or on behalf of the Corporation new certificates
of stock to replace certificates reported lost, stolen or
destroyed upon receipt of an affidavit of loss and bond of
indemnity in form and amount and with surety satisfactory to
such transfer agent or registrar in each instance or upon such
terms and conditions as the Board of Directors may determine.
SECTION 6. Uncertificated Shares. The Board of Directors of the
Corporation may by resolution provide that one or more of any or all classes or
series of the stock of the Corporation shall be uncertificated shares, subject
to the provisions of Section 158 of the Delaware General Corporation Law.
SECTION 7. Transfer Agents and Registrars; Further Regulations. The
Board of Directors may appoint one or more banks, trust companies or
corporations doing a corporate trust business, in good standing under the laws
of the United States or any state therein, to act as the Corporation's transfer
agent and/or registrar for shares of one or more classes or series of its stock,
and the Board may make such other and further regulations, not inconsistent with
applicable law, as it may deem expedient concerning the issue, transfer and
registration of the Corporation's stock and stock certificates.
ARTICLE VII EXECUTION OF DOCUMENTS
SECTION 1. Execution of Checks, Notes, etc. All checks and drafts on
the Corporation's bank accounts and all bills of exchange and promissory notes,
and all acceptances, obligations and other instruments for the payment of money,
shall be signed by such officer or officers, or agent or agents, as shall be
thereunto authorized from time to time by the Board of Directors, which may in
its discretion authorize any such signatures to be facsimile.
SECTION 2. Execution of Contracts, Assignments, etc. Unless the Board
of Directors shall have otherwise provided generally or in a specific instance,
all contracts, agreements, endorsements, assignments, transfers, stock powers,
or other instruments shall be signed by the Chairman or Vice Chairman of the
Board, if any, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Secretary, any Assistant Secretary, the
Treasurer or any Assistant Treasurer. The Board of Directors may, however, in
its discretion, require any or all such instruments to be signed by any two or
more of such officers, or may permit any or all of such instruments to be signed
by such other officer or officers, agent or agents, as it shall thereunto
authorize from time to time.
SECTION 3. Execution of Proxies. The Chairman or Vice Chairman of the
Board, if any, the President, any Executive Vice President, any Senior Vice
President or any Vice President, and the Secretary, the Treasurer, any Assistant
Secretary or any Assistant Treasurer, or any other officer designated by the
Board of Directors, may sign on behalf of the Corporation proxies to vote upon
shares of stock of other companies standing in the name of the Corporation.
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 16
ARTICLE VIII INSPECTION OF BOOKS
The Board of Directors shall determine from time to time whether, and
if allowed, to what extent and at what time and places and under what conditions
and regulations, the accounts and books of the Corporation (except such as may
by law be specifically open to inspection) or any of them, shall be open to the
inspection of the stockholders, and no stockholder shall have any right to
inspect any account or book or document of the Corporation, except as conferred
by the laws of the State of Delaware, unless and until authorized so to do by
resolution of the Board of Directors or of the stockholders of the Corporation.
ARTICLE IX FISCAL YEAR
The fiscal year of the Corporation shall be determined from time to
time by vote of the Board of Directors.
ARTICLE X SEAL
The seal of the Corporation shall, subject to alteration by the Board
of Directors, consist of a flat-faced circular die with the word "Delaware",
together with the name of the Corporation and the year of incorporation, cut or
engraved thereon.
ARTICLE XI AMENDMENTS
These By-Laws may be altered, amended, changed or repealed and new
By-Laws adopted by the stockholders or by the Board of Directors in accordance
with the provisions set forth in the Certificate of Incorporation, in either
case at any meeting called for that purpose at which a quorum shall be present.
Any By-Law, whether made, altered, amended, changed or repealed by the
stockholders or the Board of Directors may be repealed, amended, changed,
further amended, changed, repealed or reinstated, as the case may be, either by
the stockholders or by the Board of Directors as above provided.
ARTICLE XII RESTRICTIONS ON TRANSFER OF
CERTAIN SHARES OF CAPITAL STOCK OF THE CORPORATION3
SECTION 1. Restrictions on Transfer. Any Person who receives any shares
of Common Stock of the Corporation (the "Merger Securities") issued pursuant to
the Agreement and Plan of Merger, dated as of February 19, 1997, by and among
the Corporation, IM-1 Acquisition
- --------
3 Adopted June 12, 1997.
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 17
Corp. and Safesite Records Management Corporation, as amended (the "Merger
Agreement"), shall not Transfer (as defined herein), and the Corporation shall
not be required to register the Transfer of, the number of shares, rounded
upward to the nearest whole share (the "Subject Shares"), of the Merger
Securities equal to the product of (1) the quotient obtained by dividing (x) the
"Lock-up Value" by (y) the product of (A) the Common Stock Amount and (B) the
lesser of the Closing Price and the Determination Price multiplied by (2) the
Stock Merger Consideration received by such Person in connection with the
Merger, until the first anniversary date of the effective date of the Merger
Agreement (the "Effective Time"), except as otherwise allowed by the Board of
Directors of the Corporation in its sole discretion. The "Lock-up Value" shall
mean one half (1/2) of the sum of (x) the product of the Common Stock Amount and
the lesser of the Closing Price and the Determination Price plus (y) the Cash
Amount. The "Closing Price" shall mean the closing price per share of Acquiror
Stock for the trading day immediately prior to the Effective Time. The closing
price for such trading day shall be the last quoted sale price or, if not so
quoted, the average of the low bid and high asked prices on the Nasdaq National
Market System. Capitalized terms used herein and not otherwise defined shall
have the meanings prescribed therefor in the Merger Agreement. The term
"Transfer" means any indirect or direct transfer, offer to sell, sale,
assignment, grant of an option to acquire, pledge, or other disposition.
SECTION 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Subject Shares of Merger Securities issued upon
transfer that the shares represented by such certificates are subject to the
restrictions on transfer and registration of transfer imposed in this Article
XII.
SECTION 3. Termination of Restrictions on Transfers. The provisions of
this Article XII shall terminate in their entirety on the first anniversary of
the Effective Time.
ARTICLE XIII RESTRICTIONS ON TRANSFER OF CERTAIN
SHARES OF CAPITAL STOCK OF THE CORPORATION4
SECTION 1. Restrictions on Transfer. Except as otherwise allowed by the
Board of Directors of the Corporation in its sole discretion, until the earlier
of (i) the first anniversary of the effective date (the "Effective Time") under
the Agreement and Plan of Merger, dated as of September 26, 1997, by and among
the Corporation, Arcus Group, Inc. ("AGI"), United Acquisition Company ("UAC")
and Arcus Technology Services, Inc. ("ATSI, and together with AGI and UAC, the
"Arcus Parties") (as amended, the "Merger Agreement"), or (ii) the date on which
a Transfer (as such term is hereinafter defined in this Article XIII) may be
effected in a manner that the Corporation reasonably determines does not
adversely affect the tax-free nature of the Merger (as such term is defined in
the Merger Agreement) under Section 368(a) of the Internal Revenue Code of 1986,
as amended, any Person who receives any shares of
- --------
4 Adopted January 6, 1998.
By-Laws of Iron Mountain Incorporated
A Delaware Corporation
Page 18
Common Stock of the Corporation issued pursuant to the Merger Agreement (the
"Merger Securities") shall not Transfer, and the Corporation shall not be
required to register the Transfer of, such Merger Securities. The term
"Transfer" means any indirect or direct transfer, offer to sell, sale,
assignment, grant of an option to acquire, pledge, or other disposition;
provided, however, that a Transfer by a partnership or a limited liability
company to its partners or members, which Transfer is to all partners or members
in proportion to their interests in such partnership or limited liability
company, shall be permissible except that the Merger Securities so Transferred
shall continue to be subject to the restrictions on transfer set forth in this
Article XIII; provided further that the provisions of this section shall not
apply to Merger Securities to the extent such Merger Securities were issued in
exchange for shares of common stock of AGI of any Person who received such
shares pursuant to the exercise of an option as a result of the application of
Section 5.10 of the Merger Agreement.
SECTION 2. Legend on Stock Certificates. The Corporation shall note on
the certificates for the Merger Securities issued upon the Merger or upon any
Transfer thereof that the shares represented by such certificates are subject to
the restrictions on transfer and registration of transfer imposed in this
Article XIII.