EXHIBIT 3.1K
Certificate of Incorporation
of
Iron Mountain Wilmington, Inc.
FIRST: The name of the corporation is Iron Mountain Wilmington, Inc.
SECOND: The registered office of the Corporation in the State of Delaware is
located at 32 Loockerman Square, Suite L-100, Dover, Kent County, Delaware 19904
and the name of its registered agent at such address is The Prentice-Hall
Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage, anywhere in the world, in
any lawful act or activity for which corporations may be organized under the
General Corporation Law of Delaware, and to possess and exercise all powers and
privileges granted by the General Corporation Law of Delaware.
FOURTH: The total number of shares of capital stock which the Corporation is
authorized to issue is 1,000 (one thousand) shares, all of which shall be shares
of Common Stock of the par value of $1.00 per share.
FIFTH: The name and mailing address of the incorporator are as follows:
NAME MAILING ADDRESS
Garry B. Watzke 745 Atlantic Avenue, Boston, MA 02111
SIXTH: The name and mailing address of the person who is to serve as sole
director until the first meeting of stockholders, or until his successor is
elected and qualified, which ever first occurs, are as follows:
NAME MAILING ADDRESS
C. Richard Reese 745 Atlantic Avenue, Boston, MA 02111
SEVENTH: 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 its directors and stockholders, it is further provided:
1. The number of directors of the Corporation shall be as prescribed in
the Bylaws of the Corporation but such number may from time to time be increased
or decreased in such manner as may be prescribed by the By-laws. In no event
shall the number of Directors be less than the minimum number prescribed by law.
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2. 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:
(a) Subject to the applicable provisions of the By-laws then in
effect, to determine, from time to time, whether and to what extent and at what
times and places and under what conditions and regulations the accounts and
books of the Corporation, 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
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.
(b) Without the assent or vote of the stockholders to authorize and
issue obligations of the Corporation, secured or unsecured, to include therein
such provisions as to redeemability, convertibility or otherwise, as the Board
of Directors, in its sole discretion, may determine, and to authorize the
mortgaging or pledging, as security therefor, of any property of the
Corporation, real or personal, including after-acquired property.
(c) To establish a bonus, profit-sharing or other types of incentive
or compensation plans for the employees (including officers and Directors) of
the Corporation and to fix the amount of profits to be distributed or shared and
to determine the persons to participate in any such plans and the amounts their
respective participants.
(d) To make, alter, amend or repeal the By-laws of the Corporation.
(e) To determine for any purpose and in any manner not inconsistent
with the other provisions of this Certificate of Incorporation the amount of the
gross assets, of the liabilities, of the net assets or of the net profits of the
Corporation as the same may exist or shall have existed at any time or for any
period or periods, and to create, increase, abolish or reduce any reserve or
reserves for accrued, accruing or contingent liabilities or expenses, including
taxes and other charges.
In addition to the powers and authorities hereinbefore 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,
of the Certificate of Incorporation and of the By-laws of the Corporation.
3. Any Director or any officer elected or appointed by the stockholders or
by the Board of Directors may be removed at any time in such manner as shall be
provided in the By-laws of the Corporation.
4. In the absence of fraud, no contract or other transaction between the
Corporation and any other corporation, and no act of the Corporation, shall in
any way be affected or invalidated by the fact that any of the Directors of the
Corporation are pecuniarily or otherwise interested in, or are directors or
officer of, such other corporation and, in the absence of fraud, any Director
may be a member, may be a party to, or may be pecuniarily
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or otherwise interested in, any contract or transaction of the Corporation;
provided, in any case, that the fact that he or such firm is so interested shall
be disclosed or shall have been known to the Board of Directors or a majority
thereof; and any Director of the Corporation who is also a director or officer
of any such other corporation, or who is also interested, may be counted in
determining the existence of a quorum at any meeting of the Board of Directors
of the Corporation which shall authorize any such contract, act or transaction
and may vote thereat to authorize any such contract, act or transaction, with
like force and effect as if he were not such director or officer of such
corporation, or not so interested.
5. Any contract, act or transaction of the Corporation or of the Directors
may be ratified by vote of a majority of the shares having voting powers at any
meeting of stockholders, or at any special meeting called for such purpose, and
such ratification shall, so far as permitted by law and by this Certificate of
Incorporation, be as valid and as binding as though ratified by every
stockholder of the Corporation.
6. No Director of the Corporation shall be liable to any person on account
of any action undertaken by him as such director in reliance in good faith upon
the existence of any fact or circumstance reported or certified to the Board of
Directors by any officer of the Corporation or by any independent auditor,
engineer, or consultant retained or employed as such by the Board of Directors.
7. Meetings of the stockholders may be held without the State of Delaware,
if the By-laws so provide. The books of the Corporation may be kept (subject to
any statutory provision) outside the State of Delaware at such place or places
as may be from time to time designated by the Board of Directors or in the
By-laws of the Corporation. Elections of directors need not be by ballot unless
the By-laws shall otherwise provide.
EIGHTH: Whenever a compromise or arrangement is proposed between the Corporation
and its creditors or any class of them and/or between the Corporation and its
stockholders or any class of them, any court of equitable jurisdiction within
the State of Delaware may, on the application in a summary way of the
Corporation or of any creditor or stockholder thereof or on the application of
any receiver or receivers appointed for the Corporation under the provisions of
Section 291 of Title 8 of the Delaware Code or on the application of trustees in
dissolution or of any receiver or receivers appointed for the Corporation under
the provisions of Section 279 of Title 8 of the Delaware Code, order a meeting
of the creditors or class of creditors, and/or of the stockholders or class of
stockholders, of the Corporation, as the case may be, to be summoned in such
manner as the said court directs. If a majority in number representing
three-fourths in value of the creditors or class of creditors, and/or of the
stockholders or class of stockholders of the Corporation, as the case may be,
agree to any compromise or arrangement and to any reorganization of the
Corporation as consequences of such compromise or arrangement, the said
compromise or arrangement and the said reorganization shall, if sanctioned by
the court to which the said application has been made, be binding on all the
creditors or class of creditors, and/or on all the stockholders or class of
stockholders, of the Corporation, as the case may be, and also on the
Corporation.
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NINTH: No director shall be personally liable to the Corporation, or any
stockholder for monetary damages for breach of fiduciary duty as a director,
except, in addition to any and all other requirements for such liability, (i)
for any breach of such director's duty of loyalty to the Corporation or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) to the extent
provided under Section 174 of the General Corporation Law of Delaware or any
amendment thereto or successor provision thereto, or (iv) for any transaction
for which such director derived an improper personal benefit. Neither the
amendment nor repeal of this Article NINTH, nor the adoption of any provision of
this Certificate of Incorporation inconsistent with the Article NINTH, shall
eliminate or reduce the effect of this Article NINTH in respect of any matter
occurring, or any cause of action, suit or claim that, but for this Article
NINTH, would accrue or arise prior to such amendment, repeal, or adoption of an
inconsistent provision.
TENTH: The stockholders of the Corporation shall not be personally liable for
the payment of the Corporation's debts.
ELEVENTH: The Corporation shall indemnify, defend and hold harmless 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, investigative or other, including appeals, by reason of the fact
that he or she is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as a
director, trustee, officer, employer or agent of any corporation, partnership,
joint venture, trust or other enterprise, including service with respect to
employee benefit plans, to the fullest extent authorized by Section 145 of the
General Corporation law of Delaware, as amended from time to time, against all
expenses (including attorneys' fees), judgments, fines, and amounts paid or to
be paid in settlement actually and reasonably incurred or suffered by such
person in connection therewith if such person acted in good faith and in a
manner he or she reasonably believed to be in or not opposed to the best
interests of the Corporation and, with respect to any criminal action or
proceeding, had no reason to believe his or her conduct was unlawful; provided,
however, that, except with respect to proceedings seeking to enforce the rights
to indemnification granted herein, the Corporation shall indemnify any such
person seeking indemnification in connection with a proceeding (or part thereof)
initiated by such person only if the proceeding (or part thereof) was authorized
by the Board of Directors of the Corporation. Without limiting the generality or
the effect of the foregoing, the Corporation may enter into one or more
agreements with any person which provide for indemnification greater or
different than that provided in this Article ELEVENTH. Any repeal or
modification of the provisions of this Article ELEVENTH, or the adoption of any
provision inconsistent herewith, shall not adversely affect any right or
protection existing hereunder immediately prior to such repeal, modification or
adoption of an inconsistent provision. Notwithstanding the foregoing, the
indemnification provided for in this Article ELEVENTH shall not be deemed
exclusive of any other rights to which those entitled to receive indemnification
or reimbursement hereunder may be entitled under any By-law of the Corporation,
agreement, vote of stockholders or disinterested directors or otherwise.
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TWELFTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article TWELFTH.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this 16th day of
November, 1995.
/s/ Garry B. Watzke
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Garry B. Watzke