EXHIBIT 10.12
IRON MOUNTAIN INCORPORATED
IRON MOUNTAIN INCORPORATED 1995 STOCK INCENTIVE PLAN
AMENDED AND RESTATED IRON MOUNTAIN NON-QUALIFIED STOCK OPTION AGREEMENT
This Amended and Restated Iron Mountain Non-Qualified Stock Option
Agreement and each attached Amended and Restated Iron Mountain Non-Qualified
Stock Option Schedule (together, an "Option Agreement") made as of the "Date of
Original Grant" (the "Effective Date") on the attached Amended and Restated Iron
Mountain Non-Qualified Stock Option Schedule (the "Schedule") by and between
Iron Mountain Incorporated, a Delaware corporation (the "Company"), and the
individual identified on the Schedule (the "Optionee") constitutes an amendment
and restatement of each outstanding Stock Option Agreement (each an "Old
Agreement").
WITNESSETH THAT:
WHEREAS, the Company instituted the "Iron Mountain Information Services,
Inc. Stock Option Plan" (the "Prior Plan"); and
WHEREAS, the program instituted by the Company entitled "Iron Mountain
Incorporated 1995 Stock Incentive Plan," as amended (the "Plan"), is a
restatement of the Prior Plan; and
WHEREAS, the outstanding, unexpired options granted under the Prior Plan
remain in full force and effect under the Plan and are subject to the terms and
conditions of the Plan; and
WHEREAS, effective November 29, 1995, the Company declared a stock dividend
of 14.4215 shares; and
WHEREAS, the Company and the Optionee agree that it is desirable to amend
and restate the Old Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained and for other good and valuable consideration
the receipt and adequacy of which are hereby acknowledged, the Company and the
Optionee agree as follows.
1. FORM OF OPTION. The Company hereby affirms that the Optionee holds
outstanding stock options (each an "Option") to purchase from the Company the
amount of Common Stock ("Stock") shown as the "Total Number of Shares" on each
(if there be more than one) Schedule. No Option is intended to be an incentive
stock option or to qualify for special federal income tax treatment under
Section 422 of the Code.
2. EXERCISE PRICE. Each Option may be exercised at the "Exercise Price Per
Share" shown on each (if there be more than one) Schedule, subject to adjustment
as provided herein and in the Plan.
3. TERM AND EXERCISABILITY OF OPTION. Unless sooner terminated pursuant to
the Plan or this Section 3, each Option shall expire on the last day of the
exercise period shown on the
Schedule. An Option may be exercised to the extent vested, as shown on the
Schedule, provided that:
(a) at the time of exercise the Optionee is not in violation of any
Employee Confidentiality and Non-Competition Agreement with the Company;
(b) the Optionee's employment, contractual or other service
relationship with the Company ("Relationship") must be in effect on a given
date in order for any scheduled increment in vesting, as set forth in the
"Vesting Schedule" on the Schedule, to become effective;
(c) the Vesting Schedule shall not operate to preclude the exercise
of an Option in full upon the Company's sale of substantially all of its
assets and business to another corporation (other than a Subsidiary), or
the merger of the Company into, or consolidation of the Company with,
another corporation (other than a Subsidiary) under circumstances in which
the Company will not be the surviving entity; and
(d) an Option may not be exercised after the sixtieth (60th) day
following the date of termination of the Relationship between the Optionee
and the Company, except that if the Relationship terminates by reason of
the Optionee's death or total and permanent disability (as determined by
the Board on the basis of medical advice satisfactory to it), the
unexercised portion of the Option that is otherwise exercisable on the date
of termination of the Relationship shall remain exercisable thereafter for
no less than one year; provided, however, that if the Relationship
terminates for any reason (other than under circumstances described in
Section 12 of the Plan) after the fifth anniversary of the date of grant of
an Option, then the unexercised portion of an Option that is otherwise
exercisable on the date of termination of the Relationship shall remain
exercisable thereafter until the passage of one-half of that number of days
elapsed between the date of grant of the Option and the date of termination
of the Relationship.
For purposes of this Section 3, the term "Company" refers to the Company
and all Subsidiaries.
4. METHOD OF EXERCISE. Prior to its expiration and to the extent that the
right to purchase shares of Stock has vested hereunder, the Option may be
exercised from time to time by notice acceptable to the Company stating the
number of shares with respect to which the Option is being exercised and
accompanied by either (a) payment in full of the Exercise Price for the number
of shares to be delivered, by means of payment acceptable to the Company in
accordance with Section 5(c) of the Plan, or (b) a description of a "cashless
exercise" procedure and such other documents and undertakings as are necessary
to satisfy that procedure. The Company, or the Committee, may from time to time
designate one or more forms or methods of providing notice of the exercise of an
Option and in that event the Optionee agrees to utilize such form or method. As
soon as practicable after its receipt of such notice, the Company shall, without
transfer or issue tax to the Optionee (or other person entitled to exercise the
Option), deliver to the Optionee (or other person entitled to exercise the
Option), at the principal executive offices of the Company or such other place
as shall be mutually acceptable, a stock certificate or certificates for such
shares out of theretofore authorized but unissued shares or
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reacquired shares of its Stock as the Company may elect; provided, however, that
the time of such delivery may be postponed by the Company for such period as may
be required for it with reasonable diligence to comply with any applicable
requirements of law. Payment of the Exercise Price may be made in cash or cash
equivalents, or, in accordance with the terms and conditions of Section 5(c) of
the Plan, in whole or in part in shares of Stock of the Company; provided,
however, that the Board reserves the right upon receipt of any written notice of
exercise from the Optionee to require payment in cash with respect to the shares
contemplated in such notice; and provided, further, that the Optionee may not
make payment in shares of Stock that he acquired upon the earlier exercise of
any incentive stock option, unless he has held the shares until at least two (2)
years after the date the incentive stock option was granted and at least one (1)
year after the date the incentive stock option was exercised. If the Optionee
(or other person entitled to exercise the Option) fails to pay for and accept
delivery of all of the shares specified in such notice upon tender of delivery
thereof, his right to exercise the Option with respect to such shares not paid
for may be terminated by the Company.
The Committee may, in its discretion at the time of exercise of the Option,
grant to the Optionee a new option (a "Reload Option") to permit the Optionee to
purchase that number of shares of Stock delivered by the Optionee to the Company
in full or partial payment of the Exercise Price, or in full or partial payment
of the tax withholding obligations incurred on account of the exercise of the
Option, on such terms and conditions as the Committee may determine under the
terms of the Plan. The Exercise Price for shares subject to a Reload Option
shall be not less than one hundred percent (100%) of the Fair Market Value of
the shares on the date of grant of the Reload Option, and the duration of a
Reload Option shall be equal to the unexpired term of the exercised Option on
the date of exercise.
5. WITHHOLDING TAXES. The Optionee hereby agrees, as a condition to any
exercise of an Option, to provide to the Company an amount sufficient to satisfy
the Company's obligation to withhold certain federal, state and local taxes
arising by reason of such exercise (the "Withholding Amount"), if any, by (a)
authorizing the Company or any Subsidiary to withhold the Withholding Amount
from his cash compensation or (b) remitting the Withholding Amount to the
Company in cash; provided, however, that to the extent that the Withholding
Amount is not provided by one or a combination of such methods, the Company may
at its election withhold from the Stock that would otherwise be delivered upon
exercise of this Option that number of shares having a Fair Market Value on the
date of exercise sufficient to eliminate any deficiency in the Withholding
Amount.
6. NON-ASSIGNABILITY OF OPTION. No Option shall be assignable or
transferable by the Optionee except by will or by the laws of descent and
distribution. During the life of the Optionee, each Option shall be exercisable
only by him, by a conservator or guardian duly appointed for him by reason of
the Optionee's incapacity or by the person appointed by the Optionee in a
durable power of attorney acceptable to the Company's counsel.
7. COMPLIANCE WITH SECURITIES ACT; LOCK-UP AGREEMENT. The Company shall not
be obligated to sell or issue any shares of Stock or other securities pursuant
to the exercise of the Option unless the shares of Stock or other securities
with respect to which the Option is being exercised are at that time effectively
registered or exempt from registration under the Securities Act and applicable
state securities laws. In the event shares or other securities shall be issued
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that shall not be so registered, the Optionee hereby represents, warrants and
agrees that he will receive such shares or other securities for investment and
not with a view to their resale or distribution, and will execute an appropriate
investment letter satisfactory to the Company and its counsel. The Optionee
further hereby agrees that as a condition to the purchase of shares upon
exercise of the Option, he will execute an agreement in a form acceptable to the
Company to the effect that the shares shall be subject to any underwriter's
lock-up agreement in connection with a public offering of any securities of the
Company that may from time to time apply to shares held by officers and
employees of the Company, and such agreement or a successor agreement must be in
full force and effect.
8. LEGENDS. The Optionee hereby acknowledges that the stock certificate or
certificates evidencing shares of Stock or other securities issued pursuant to
any exercise of this Option may bear a legend setting forth the restrictions on
their transferability described in Section 7 hereof, if such restrictions are
then in effect.
9. RIGHTS AS STOCKHOLDER. The Optionee shall have no rights as a
stockholder with respect to any shares covered by the Option until the date of
issuance of a stock certificate to him for such shares. No adjustment shall be
made for dividends or other rights for which the record date is prior to the
date such stock certificate is issued.
10. TERMINATION OR AMENDMENT OF PLAN. The Board may terminate or amend the
Plan at any time. No such termination or amendment will affect rights and
obligations under the Option to the extent it is then in effect and unexercised.
11. EFFECT UPON EMPLOYMENT OR PERFORMANCE OF SERVICES. Nothing in any
Option or the Plan shall be construed to impose any obligation upon the Company
or any Subsidiary to employ or utilize the services of the Optionee or to retain
the Optionee in its employ or to engage or retain the services of the Optionee.
12. TIME FOR ACCEPTANCE. Unless the Optionee shall evidence his acceptance
of an Option by execution of its related Schedule within thirty (30) days after
its delivery to him, an Option Agreement shall be null and void.
13. GENERAL PROVISIONS.
(a) AMENDMENT; WAIVERS. Each Option Agreement, including the Plan,
contains the full and complete understanding and agreement of the parties
hereto as to the subject matter hereof, and except as otherwise permitted
by the express terms of the Plan and the Option Agreement, it may not be
modified or amended nor may any provision hereof be waived except by a
further written agreement duly signed by each of the parties; provided,
however, that a modification or amendment that does not materially diminish
the rights of the Optionee hereunder, as they may exist immediately before
the effective date of the modification or amendment, shall be effective
upon written notice of its provisions to the Optionee. The waiver by either
of the parties hereto of any provision hereof in any instance shall not
operate as a waiver of any other provision hereof or in any other instance.
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(b) BINDING EFFECT. An Option Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs,
executors, administrators, representatives, successors and assigns.
(c) GOVERNING LAW. Each Option Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to the principles of conflicts of law.
(d) CONSTRUCTION. Each Option Agreement is to be construed in
accordance with the terms of the Plan. In case of any conflict between the
Plan and an Option Agreement, the Plan shall control. The titles of the
sections of an Option Agreement and of the Plan are included for
convenience only and shall not be construed as modifying or affecting their
provisions. The masculine gender shall include both sexes; the singular
shall include the plural and the plural the singular unless the context
otherwise requires. Capitalized terms not defined herein shall have the
meanings given to them in the Plan.
(e) NOTICES. Any notice in connection with an Option Agreement shall
be deemed to have been properly delivered if it is in writing and is
delivered by hand or facsimile or sent by registered mail, postage prepaid,
to the party addressed as follows, unless another address has been
substituted by notice so given:
To the Optionee: To his address as set forth on the Schedule
To the Company: Iron Mountain Incorporated
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Financial Officer
Copy to: Xxxxxxxx & Worcester LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxxxx, Esq.
IN WITNESS WHEREOF, the Company has caused this Option Agreement to be
issued as of the date set forth above.
IRON MOUNTAIN INCORPORATED
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