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Exhibit D
STOCKHOLDERS AGREEMENT
among
IFX CORPORATION,
UBS CAPITAL AMERICAS III, L.P.,
UBS CAPITAL LLC,
INTERNATIONAL TECHNOLOGY INVESTMENTS, LC,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
and
▇▇▇ ▇. ▇▇▇▇▇
dated as of June 15, 2000
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IFX CORPORATION
STOCKHOLDERS AGREEMENT
THIS AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement") is
entered as of June 15, 2000, among IFX CORPORATION, a Delaware corporation (the
"Company"), UBS CAPITAL AMERICAS III, L.P., a Delaware limited partnership, and
UBS CAPITAL LLC, a Delaware limited liability company (collectively, "UBS" and
together with successors and assigns, the "Investor Stockholders"),
INTERNATIONAL TECHNOLOGY INVESTMENTS, LC, a Nevada limited liability company
("ITI"), ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, individually, ("Eidelstein") ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
individually, (and together with any Affiliated entities, "Shalom"), and ▇▇▇ ▇.
▇▇▇▇▇, individually ("Casty", and collectively with ITI, Shalom and Eidelstein,
the "Stockholders").
RECITALS
WHEREAS, the Company and the Investor Stockholders have entered into the
IFX Corporation Preferred Stock Purchase Agreement, dated the date hereof (the
"Stock Purchase Agreement"), pursuant to which the Investor Stockholders will
purchase newly issued shares of Class I and Class II Series A Convertible
Preferred Stock, par value $1.00 per share, of the Company ("Series A Preferred
Stock"); and
WHEREAS, the parties hereto desire to enter into certain arrangements
relating to the Company.
NOW, THEREFORE, in consideration of the foregoing recitals and of the
mutual promises hereinafter set forth, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Certain Defined Terms. As used herein, the following terms
shall have the following meanings:
"Acquisition" has the meaning assigned to such term in Section 4.1(a).
"Acquisition Restrictions" has the meaning assigned to such term in Section
4.1(a).
"Affiliate" means, with respect to any Person, any other Person that
directly, or indirectly through one or more intermediaries, controls, is
controlled by or is under common control with, such specified Person, for so
long as such Person remains so associated to the specified Person, or, in the
case of an individual, such individual's
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spouse, lineal descendents or a trust primarily for the benefit of such
individual or any of the foregoing.
"Agent" has the meaning assigned to such term in Section 5.13.
"as converted" has the meaning assigned to such term in Section 2.3.
"beneficial owner" or "beneficially own" has the meaning given such term in
Rule 13d-3 under the Exchange Act and a Person's beneficial ownership of Common
Stock or Series A Preferred Stock or other Voting Securities of the Company
shall be calculated in accordance with the provisions of such Rule; provided,
however, that for purposes of determining beneficial ownership, (i) a Person
shall be deemed to be the beneficial owner of any security which may be acquired
by such Person whether within 60 days or thereafter, upon the conversion,
exchange or exercise of any warrants, options, rights or other securities and
(ii) no Person shall be deemed to beneficially own any security solely as a
result of such Person's execution of this Agreement.
"Board" means the Board of Directors of the Company.
"Business Day" means any day that is not a Saturday, a Sunday or other day
on which banks are required or authorized by law to be closed in New York City
on the city of Miami, Florida.
"Buyer" has the meaning assigned to such term in Section 3.6.
"Bylaws" means the Bylaws of the Company, as in effect on the date hereof
and as the same may be amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, the terms of the Certificate and the
terms of this Agreement.
"Capital Stock" means, with respect to any Person at any time, any and all
shares, interests, participations or other equivalents (however designated,
whether voting or non-voting) of capital stock, partnership interests (whether
general or limited) or equivalent ownership interests in or issued by such
Person, and includes, in the case of the Company without limitation, any and all
shares of Common Stock and Series A Preferred Stock.
"Casty" has the meaning assigned to such term in the preamble.
"Casty Representative" has the meaning assigned to such term in Section
2.1(a).
"Certificate" means the Certificate of Incorporation of the Company, as in
effect on the date hereof and as the same may be amended, supplemented or
otherwise modified from time to time in accordance with the terms thereof.
"Certificate of Designation" means the Certificate of Designation, Number,
Powers, Preferences and Relative, Participating and Other Rights of Series A
Convertible Preferred Stock of the Company in the form attached as Exhibit B to
the Stock Purchase Agreement.
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"Common Stock" means the common stock, par value $0.02 per share, of the
Company and any securities issued in respect thereof, or in substitution
therefor, in connection with any stock split, dividend or combination, or any
reclassification, recapitalization, merger, consolidation, exchange or other
similar reorganization.
"control" (including the terms "controlled by" and "under common control
with"), with respect to the relationship between or among two or more Persons,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee or executor, by contract or
otherwise.
"Director" means any member of the Board.
"Eidelstein" has the meaning assigned to such term in the preamble.
"Equity Securities" means any and all shares of Capital Stock of the
Company, securities of the Company convertible into, or exchangeable or
exercisable for, such shares, and options, warrants or other rights to acquire
such shares.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute and the rules and regulations promulgated
thereunder.
"Holder" means an Investor Stockholders and any other holder of Equity
Securities who or which is a permitted transferee of an Investor Stockholders
pursuant to Section 3.1(c).
"Independent Director" has the meaning specified in Rule 4200(a)(15) of the
NASD listing standards, as in effect on the date hereof and as the same may be
amended or supplemented, or in any successor rule or regulation.
"Investor Representative" has the meaning assigned to such term in Section
2.1(a).
"ITI" has the meaning assigned to such term in the preamble.
"ITI Representative" has the meaning assigned to such term in Section
2.1(a).
"Joint Representative" has the meaning assigned to such term in Section
2.1(a).
"NASD" means the National Association of Securities Dealers, Inc.
"Offer" has the meaning assigned to such term in Section 3.5(a).
"Offered Shares" has the meaning assigned to such term in Section 3.5(a).
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated
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organization, government or any agency or political subdivisions thereof or any
other entity.
"Proposed Transferee" has the meaning assigned to such term in Section
3.5(a).
"Pro Rata Fraction" has the meaning assigned to such term in Section
3.5(c).
"Qualified Public Offering" has the meaning assigned to such term in the
Stock Purchase Agreement.
"Registration Agreement" has the meaning assigned to such term in the Stock
Purchase Agreement.
"Representatives" has the meaning assigned to such term in Section 2.1(b).
"SEC" means the U.S. Securities and Exchange Commission or any other
federal agency then administering the federal securities laws.
"Securities Act" has the meaning assigned to such term in Section 3.1.
"Series A Preferred Stock" has the meaning assigned to such term in the
recitals.
"Seller" has the meaning assigned to such term in Section 3.5(a).
"Shalom" has the meaning assigned to such term in the preamble.
"Stockholder" has the meaning assigned to such term in the preamble.
"Stock Purchase Agreement" has the meaning assigned to such term in the
recitals.
"Subsequent Closing" has the meaning assigned to such term in the Stock
Purchase Agreement.
"Transfer" means, directly or indirectly, to sell, transfer, assign,
pledge, encumber, hypothecate or similarly dispose of, either voluntarily or
involuntarily, or to enter into any contract, option or other arrangement or
understanding with respect to the sale, transfer, assignment, pledge,
encumbrance, hypothecation or similar disposition of, any shares of Equity
Securities beneficially owned by a Person or any interest in any shares of
Equity Securities beneficially owned by a Person.
"Voting Securities" means, at any time, shares of any class of Equity
Securities of the Company which are then entitled to vote generally in the
election of Directors.
SECTION 1.2 Other Definitional Provisions.
(a) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole
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and not to any particular provision of this Agreement, and Article and Section
references are to this Agreement unless otherwise specified.
(b) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
ARTICLE II
CORPORATE GOVERNANCE
SECTION 2.1 Board Representation.
(a) Effective on the date hereof, the Board shall, except as otherwise
provided below, be comprised of seven (7) Directors of whom: (i) two (2)
shall be designees of the Investor Stockholders (the "Investor
Representatives"), (ii) one (1) shall be a designee of ITI (the "ITI
Representative"), (iii) one (1) shall be a designee of Casty (the "Casty
Representative"), (iv) one (1) shall be jointly designated by ITI and Casty
(the "Joint Representative") and (v) the others shall be Independent
Directors acceptable to the Investor Stockholders (with such consent not to
be unreasonably withheld) who, commencing with the election of Directors at
the next annual meeting of stockholders, have been elected by the holders
of a majority of the outstanding Voting Securities. The initial Investor
Representatives shall be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇ ▇. Lama, the initial ITI
Representative shall be ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, the initial Casty Representative
shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, and the initial Joint Representative shall be
▇▇▇▇▇▇ ▇▇▇▇▇▇. If, at any time, ITI and Casty are unable to agree upon the
designation of a Joint Representative, the Joint Representative shall be
designated by ▇▇▇▇ ▇▇▇▇▇▇. Notwithstanding the foregoing, at such time as
an Independent Director acceptable to the Investor Stockholders (with such
consent not to be unreasonably withheld) and the holders of a majority of
the outstanding Voting Securities held by the Stockholders has been elected
to the Board, the Investor Stockholders shall only be entitled to designate
one Investor Representative, and the Investor Stockholders shall
thereafter, as promptly as practicable, take all action necessary to cause
one of the Investor Representatives to resign from the Board. For purposes
hereof, the Series A Preferred Director (as defined in the Certificate of
Designation) shall count as one of the two Investor Representatives.
(b) The Company shall take such action as may be required under
applicable law (i) to cause the Board to consist of the number of Directors
specified in clause (a), (ii) to include in the slate of nominees
recommended by the Board the Investor Representatives, the ITI
Representative, the Casty Representative and the Joint Representative
(collectively, the "Representatives"), with the remaining Directors to be
Independent Directors acceptable to the Investor Stockholders (with such
acceptance not to be unreasonably withheld) and (iii) to cause the Investor
Representatives to be duly appointed in accordance with the foregoing and
the Certificate of Designation. The Company agrees to use its reasonable
best efforts to
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cause the election of the Representatives to the Board, including
nominating such individuals to be elected as Directors as provided herein.
(c) Each of the Investor Stockholders, ITI and Casty agrees to vote,
or act by written consent with respect to any Voting Securities
beneficially owned by him or it, at each annual or special meeting of the
stockholders of the Company at which Directors are to be elected or to take
all actions by written consent in lieu of any such meeting as are necessary
to cause the Representatives designated by the others in accordance with
the terms of this Agreement to be elected to the Board and agrees to use
his or its reasonable best efforts to cause the election of each such
designee to the Board, including nominating such individuals to be elected
as Directors.
(d) In the event that a vacancy is created at any time by the death,
disability, retirement, resignation or removal (with or without cause) of
any Representative, the remaining Directors and the Company shall cause the
vacancy created thereby to be filled by a new designee of the party or
parties that designated such Director as soon as possible, who is
designated in the manner specified in this Section 2.1. Each of the
Company, each Investor Stockholders, ITI and Casty hereby agrees to take,
at any time and from time to time, all actions necessary to accomplish the
same. Upon the written request of the Investor Stockholders, ITI and/or
Casty, as the case may be, each of the others shall vote, or act by written
consent with respect to all Voting Securities beneficially owned by him or
it and otherwise take or cause to be taken all actions necessary to remove
any Director designated by the former. Unless the Investor Stockholders,
ITI and/or Casty, as the case may be, shall otherwise request in writing,
none of the others shall take any action to cause the removal of any
Director designated by the former.
(e) Without the written consent of the Investor Stockholders, each of
the Company, ITI and Casty agrees not to take any action that would cause
the number of Directors constituting the entire Board to be other than
seven (7).
(f) The covenants and agreements set forth herein shall be subject to
the fiduciary obligations of the designees of the Investor Stockholders,
ITI and Casty now or hereafter serving on the Board and shall not prevent
the designees of the Investor Stockholders, ITI or Casty now or hereafter
serving on the Board from taking any action or refraining to take any
action while acting in the capacity as a Director of the Company. The
foregoing shall not limit the obligations of the Investor Stockholders, ITI
and Casty in their capacity as stockholders of the Company hereunder.
SECTION 2.2 Committees. The Company shall, except as provided below, by
amending its Bylaws or otherwise, establish and maintain a Compensation
Committee and an Audit Committee of the Board which satisfies the requirements
of this Section. Each Committee shall consist of three (3) Directors, one (1) of
whom shall be an Investor Representative. The Compensation Committee shall have
responsibility for compensation matters customarily addressed by compensation
committees of similarly
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situated companies and shall have the full power and authority of the Board with
respect thereto, except as limited by applicable law. The two (2) members of the
Committee who are not Investor Representatives may not be employees of the
Company or any subsidiary. The Audit Committee shall have responsibility for
matters customarily addressed by audit committees of similarly situated
companies and shall have the full power and authority of the Board with respect
thereto, except as limited by applicable law. The two (2) members of the Audit
Committee who are not Investor Representatives shall not be members of the
Compensation Committee. Notwithstanding anything to the contrary herein, the
Investor Stockholders acknowledge and agree that the composition of the
Compensation and Audit Committees must satisfy any applicable rules and
regulations of the SEC and the NASD as in effect from time to time.
SECTION 2.3 Termination of Rights. Notwithstanding Section 2.1, at such
time following a Qualified Public Offering as the Investor Stockholders and
their Affiliates shall cease to own in the aggregate at least 25% of the number
of shares of Common Stock (determined with respect to the Preferred Stock and
any other Equity Securities owned by the Investor Stockholders and their
Affiliates that are convertible into, or exchangeable or exercisable for Common
Stock, on an as-converted, exchanged or exercised basis (any determination made
in accordance with the foregoing shall hereinafter be referred to as "as
converted")) that the Investor Stockholders held as of the Subsequent Closing
(adjusted for stock splits, combinations, stock dividends and the like), the
Investor Stockholders shall cease to have the right to designate Directors and
members of the Compensation Committee and Audit Committee pursuant to Sections
2.1 and 2.2, and all other rights of the Investor Stockholders under this
Article II shall terminate.
ARTICLE III
TRANSFERS
SECTION 3.1 Investor Stockholders Transfers. Each Investor Stockholders
hereby agrees that it shall not Transfer any shares of its Equity Securities,
unless such Transfer is effected through (a) a public offering registered under
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder (the "Securities Act"), (b) sales made pursuant to Rule
144 under the Securities Act, or any successor provisions or (c) sales involving
Transfers of Equity Securities with a purchase price in excess of $1,000,000
(per transaction) which may be effected without registration under the
Securities Act, provided that any Transfer to a Person which the Company
reasonably considers a competitor shall be prohibited for purposes of clause
(c). Any Equity Securities Transferred pursuant to clauses (a) or (b) shall no
longer be subject to this Agreement. Each transferee Holder under clause (c)
shall agree in writing with the Company and the other Stockholders as a
condition to such Transfer, to be bound by all of the provisions of this
Agreement to the same extent as if such transferee were the transferring
Investor Stockholders, and all stock certificates representing shares
transferred to a Holder shall bear a legend providing notice of the restrictions
contained in this Agreement.
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SECTION 3.2 Stockholder Transfers. Each Stockholder hereby agrees that it
shall not Transfer any shares of its Equity Securities, unless such Transfer is
effected through (a) a public offering registered under the Securities Act, (b)
sales made pursuant to Rule 144 under the Securities Act or any successor
provisions or (c) a Transfer otherwise permitted hereunder and in compliance
herewith. Transfers pursuant to clause (b) or (c) shall also comply with Section
3 of the Restated Registration Agreement. Any Equity Securities Transferred
pursuant to clauses (a) or (b) shall no longer be subject to this Agreement,
except as provided herein.
SECTION 3.3 Transfers by Eidelstein, ITI and Shalom.
(a) ITI and Shalom agree that neither such Stockholder nor any of its
Affiliates shall, Transfer more than the number of Shares of Common Stock
permitted under Rule 144(e) of the Securities Act until the Pledge
Agreements (as defined below) are satisfied, and thereafter, ITI and Shalom
agree that neither such Stockholder nor any of its Affiliates shall,
Transfer more than 25,000 Shares of Common Stock during any calendar
quarter, in each case, without the written consent of the Investor
Stockholders or without compliance with Sections 3.5 and 3.6; provided that
Transfers by ITI and Shalom shall be aggregated for purposes of the
foregoing. Eidelstein hereby agrees that neither he nor any of his
Affiliates shall, Transfer more than 25,000 Shares of Common Stock during
any calendar quarter ("Permitted Sales") without the written consent of the
Investor Stockholders, which consent shall not be unreasonably withheld or
delayed or without compliance with Sections 3.5 and 3.6. Notwithstanding
the foregoing, (i) such Stockholders may Transfer all or any of their
Equity Securities (x) by way of gift to any member of such Stockholder's
family or to any trust for the benefit of any such family member of such
Stockholder or to any other Affiliate (including, without limitation, the
members of ITI), provided that any such transferee shall agree in writing
with the Company and the Investor Stockholders as a condition to such
Transfer, to be bound by all of the provisions of this Agreement to the
same extent as if such transferee were such Stockholder, or (y) by will or
the laws of descent and distribution; provided, however, in such event each
such transferee shall be bound by all of the provisions of this Agreement
to the same extent as if such transferee were such Stockholder; and
provided, further, that each such transferee shall execute an irrevocable
proxy appointing the original Stockholder (except in the case of death of
the original Stockholder) transferring such shares as proxy to vote all
such shares so transferred, such appointment shall be coupled with an
interest, and all stock certificates representing such shares shall bear a
legend providing notice of such appointment of proxy and the restrictions
contained in this Agreement, and (ii) the restrictions described herein
shall not prohibit the pledges by ITI of 6,000,000 shares of Common Stock,
in the aggregate, pursuant to the pledge agreements listed on Exhibit A
hereto (the "Pledge Agreements") or any replacement or substitute agreement
which shall be on no less favorable terms to the pledgor than the Pledge
Agreements, but such shares shall otherwise be subject to this Agreement.
As used herein, the term "family" shall include any spouse, lineal ancestor
or descendant, brother or sister.
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(b) The provisions of this Section 3.3 shall terminate upon the
earlier of: (i) a Qualified Public Offering and (ii) the time at which the
Investor Stockholders and the other Holders own fewer than 50% of the
number of shares of Common Stock (determined on an as converted basis) that
the Investor Stockholders owned as of the Subsequent Closing (adjusted for
stock splits, combinations, stock dividends and the like).
SECTION 3.4 Transfers by Casty. Casty agrees that neither he nor any of his
Affiliates shall, Transfer more than the number of Shares of Common Stock
permitted under Rule 144(e) of the Securities Act without the written consent of
the Investor Stockholders, which consent shall not be unreasonably withheld or
delayed or without compliance with Sections 3.5 and 3.6. Notwithstanding the
foregoing, Casty may Transfer all or any of his Equity Securities (a) by way of
gift to any member of such Stockholder's family or to any trust for the benefit
of any such family member of such Stockholder or to any other Affiliate,
provided that any such transferee shall agree in writing with the Company and
the Investor Stockholders as a condition to such Transfer, to be bound by all of
the provisions of this Agreement to the same extent as if such transferee were
such Stockholder, or (b) by will or the laws of descent and distribution;
provided, however, in such event each such transferee shall be bound by all of
the provisions of this Agreement to the same extent as if such transferee were
such Stockholder; and provided, further, that each such transferee shall execute
an irrevocable proxy appointing the original Stockholder (except in the case of
death of the original Stockholder) transferring such shares as proxy to vote all
such shares so transferred, such appointment shall be coupled with an interest,
and all stock certificates representing such shares shall bear a legend
providing notice of such appointment of proxy and the restrictions contained in
this Agreement.
SECTION 3.5 Right of First Refusal on Certain Transfers.
(a) If at any time ITI, Shalom, Casty, Eidelstein or any of their
respective Affiliates, other than the Company, desires to Transfer all or any
part of their Equity Securities, (other than pursuant to Permitted Sales) to any
Person (the "Proposed Transferee"), such Stockholder (the "Seller") shall,
except as provided below, submit a written offer (the "Offer") to sell such
Equity Securities (the "Offered Shares") first to the Company, and second to the
Holders on the same terms and conditions on which the Seller proposes to sell
such Offered Shares to the Proposed Transferee. The parties acknowledge and
agree that any Transfer described in the second sentence of Section 3.3(a) or in
Section 3.4 shall not be subject to the terms of this Section. The Offer shall
disclose the identity of the Proposed Transferee, the Offered Shares proposed to
be sold, the terms and conditions, including price, of the proposed sale, and
any other material facts relating to the proposed sale. The Offer shall further
state that the Company and the Holders may acquire, in accordance with the
provisions of this Agreement, all or any portion of the Offered Shares for the
price and upon the other terms and conditions, including deferred payment (if
applicable), set forth therein.
(b) Upon receipt of the Offer, if the Company desires to purchase all
or any part of the Offered Shares, the Company shall communicate in writing its
election
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to purchase to the Seller, which communication shall state the number of Offered
Shares the Company desires to purchase and shall be given to the Seller in
accordance with Section 5.4 below within thirty (30) days of the date the Offer
was made. Such notice shall, when taken in conjunction with the Offer, be deemed
to constitute a valid, legally binding and enforceable agreement for the sale
to, and purchase by, the Company of the number of Offered Shares specified by
the Company in such notice and on the terms of the Offer. Sales of the Offered
Shares to be sold to the Company pursuant to this Section 3.5(b) shall be made
at the offices of the Company on the 45th day following the date the Offer was
made (or if such 45th day is not a Business Day, then on the next succeeding
Business Day). Such sales shall be effected by the Seller's delivery to the
Company of a certificate or certificates evidencing the Offered Shares to be
purchased by it, duly endorsed for transfer to the Company, against payment to
the Seller of the purchase price therefor by the Company.
(c) Each Holder shall, subject to the prior purchase right of the
Company, have the absolute right to purchase that number of Offered Shares not
purchased by the Company as shall be equal to the number of Offered Shares not
purchased by the Company multiplied by a fraction, the numerator of which shall
be the number of shares of Common Stock (determined on an as converted basis)
then owned by such Holder and the denominator of which shall be the aggregate
number of shares of Common Stock (determined on an as converted basis) then
owned by all of the Holders. The amount of Offered Shares that each Holder is
entitled to purchase under this Section 3.5(c) shall be referred to as its "Pro
Rata Fraction." The Holders shall have a right of oversubscription such that if
any Holder fails to accept the Offer as to its Pro Rata Fraction, the other
Holders shall, among them, have the right to purchase up to the balance of the
Offered Shares not so purchased. Such right of oversubscription may be exercised
by a Holder by accepting the Offer as to more than its Pro Rata Fraction. If, as
a result thereof, such oversubscriptions exceed the total number of Offered
Shares available in respect of such oversubscription privilege, the
oversubscribing Holders shall be cut back with respect to their
oversubscriptions on a pro rata basis in accordance with their respective Pro
Rata Fractions or as they may otherwise agree among themselves. If a Holder
desires to purchase all or any portion of the Offered Shares, said Holder shall
communicate in writing its election to purchase to the Seller and the Company,
which communication shall state the number of Offered Shares said Holder desires
to purchase and shall be given to the Seller in accordance with Section 5.4
below within thirty (30) days of the date the Offer was made. Such communication
shall, when taken in conjunction with the Offer, be deemed to constitute a
valid, legally binding and enforceable agreement for the sale and purchase of
such Offered Shares (subject to the aforesaid limitations as to a Holder's right
to purchase more than its Pro Rata Fraction) and on the terms of the Offer.
Sales of the Offered Shares to be sold to purchasing Holders pursuant to this
Section 3.5(c) shall be made at the offices of the Company on the later of (i)
the 45th day following the date the Offer was made (or if such later of (i) the
45th day is not a Business Day, then on the next succeeding Business Day) and
(ii) the third Business Day following receipt of all material governmental or
other consents in connection with such sale. Such sales shall be effected by the
Seller's delivery to each purchasing Holder of a certificate or certificates
evidencing the Offered Shares to be
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purchased by it, duly endorsed for transfer to such purchasing Holder, against
payment to the Seller of the purchase price therefor by such purchasing Holder.
(d) If the Holders and the Company do not purchase in the aggregate all
of the Offered Shares, the Offered Shares not so purchased may be sold by the
Seller at any time within 90 days after the date the Offer was made, subject to
the provisions of Section 3.6 hereof. Any such sale shall be to the Proposed
Transferee, at the price and upon the other terms and conditions specified in
the Offer. Any Offered Shares not sold within such 90-day period shall continue
to be subject to the requirements of a prior offer pursuant to this Section 3.5.
If Offered Shares are sold pursuant to this Section 3.5 to any purchaser who is
not a party to this Agreement, the Offered Shares so sold shall no longer be
subject to this Agreement.
(e) The provisions of this Section 3.5 shall terminate upon the earlier
of: (i) a Qualified Public Offering and (ii) the time at which the Investor
Stockholders and the other Holders own fewer than 50% of the number of shares of
Common Stock (determined on an as converted basis) that the Investor
Stockholders owned as of the Subsequent Closing (adjusted for stock splits,
combinations, stock dividends and the like).
SECTION 3.6 Right of Participation in Sales.
(a) If at any time the Seller desires to Transfer all or any part of
the Equity Securities owned by the Seller to any Person other than one or
more of the Holders (the "Buyer"), each of the Holders shall, except as
provided below, have the right to sell to the Buyer, as a condition to such
sale by the Seller, at the same price per share and on the same terms and
conditions as involved in such sale by the Seller, the same percentage of
the shares of Common Stock (on an as converted basis) owned by such Holder
as the shares of Common Stock (on an as converted basis) to be sold by the
Seller to the Buyer represents with respect to the shares of Common Stock
(on an as converted basis) owned by the Seller immediately prior to the
sale of any of the Seller's shares of Equity Securities to the Buyer. The
parties acknowledge and agree that any Transfer described in the second
sentence of Section 3.3(a) or in Section 3.4 or which, pursuant to the
terms of Section 3.5(a) is not the subject of an Offer, shall not be
subject to the terms of this Section.
(b) Each Holder wishing to so participate in any sale under this
Section 3.6 shall notify the Seller in writing of such intention as soon as
practicable after such Holder's receipt of the Offer made pursuant to
Section 3.5, and in any event within twenty (20) days after the date the
Offer was made. Such notification shall be given to the Seller in
accordance with Section 5.4 below.
(c) The Seller and each participating Holder shall sell to the Buyer
all, or at the option of the Buyer, any part of the Equity Securities
proposed to be sold by them at the price and upon other terms and
conditions contained in the Offer provided by the Seller under Section 3.5
above; provided however, that any purchase of less than all of such Equity
Securities by the Buyer shall be made from the Seller and each
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participating Holder pro rata based upon the relative amount of the Equity
Securities that the Seller and each participating Holder is otherwise
entitled to sell pursuant to Section 3.6(a).
(d) Any Equity Securities sold by the Seller or a participating Holder
pursuant to this Section 3.6 shall no longer be subject to this Agreement.
(e) The provisions of this Section 3.6 shall terminate upon the
earlier of: (i) a Qualified Public Offering and (ii) the time at which the
Investor Stockholders and the other Holders own fewer than 50% of the
number of shares of Common Stock (determined on an as-converted basis) that
the Investor Stockholders owned as of the Subsequent Closing (adjusted for
stock splits, combinations, stock dividends and the like).
ARTICLE IV
STANDSTILL
SECTION 4.1 Acquisition of Additional Voting Securities.
(a) Until the second anniversary of the date hereof, except as
otherwise provided in this Section 4.1, each of the Investor Stockholders
covenants and agrees with the Company that it shall not, and shall cause each of
its controlled Affiliates not to, directly or indirectly, acquire, offer or
propose to acquire or agree to acquire, whether by purchase, tender or exchange
offer, through the acquisition of control of another Person (including by way of
merger or consolidation), by joining a partnership, syndicate or other group
(within the meaning of Section 13(d)(3) of the Exchange Act) or otherwise, the
beneficial ownership of any additional Voting Securities if following such
proposed acquisition (an "Acquisition") the Investor Stockholders together with
their Affiliates would beneficially own, in the aggregate, in excess of 20% of
the voting power represented by the Company's Voting Securities (the "Permitted
Ownership Percentage") on an as converted and fully diluted basis (except (i) by
way of stock dividends, stock reclassifications or other distributions or
offerings made available and, if applicable, exercised on a pro rata basis, to
holders of Equity Securities of the Company generally, (ii) Equity Securities
acquired from the Company (including upon conversion of shares of Series A
Preferred Stock) and (iii) pursuant to this Agreement (the "Acquisition
Restrictions"); provided, however, that the foregoing Acquisition Restrictions
shall not apply to any Acquisition that is approved by a majority of the
Directors, excluding for the purposes of such approval any Investor Directors.
(b) Upon a repurchase or redemption of Equity Securities by the Company
that, by reducing the number of outstanding Equity Securities, increases the
Investor Stockholders' ownership percentage to an amount in excess of the
then-applicable Permitted Ownership Percentage, none of the Investor
Stockholders or their Affiliates shall be required to dispose of Equity
Securities beneficially owned by them; provided, however, that in such event,
none of the Investor Stockholders or their
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Affiliates may purchase additional Equity Securities until such time as their
ownership percentage is less than the then-applicable Permitted Ownership
Percentage.
(c) Subject to Section 4.1(b) at any time the Investor Stockholders or
any of their Affiliates become aware that the Investor Stockholders and their
Affiliates beneficially own in the aggregate more than the Permitted Ownership
Percentage, then the Investor Stockholders shall, as soon as is reasonably
practicable (but in no manner that would require the Investor Stockholders or
any such Affiliate to incur liability under Section 16(b) of the Exchange Act),
take all action necessary to reduce the amount of Equity Securities beneficially
owned by them and their Affiliates to an amount not greater than the Permitted
Ownership Percentage in effect at such time.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 Termination. Except as otherwise provided herein, the
provisions of this Agreement shall terminate: (a) upon the agreement of all of
the parties hereto, (b) at the time at which the Investor Stockholders and the
other Holders own fewer than 50% of the number of shares of Common Stock
(determined on an as converted basis that the Investor Stockholders owned as of
the Subsequent Closing (adjusted for stock splits, combinations, stock dividends
and the like), and (c) with respect to any of ITI, Shalom, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and
its respective permitted transferees referred to in clause (i) of the second
sentence of Section 3.3(a) or in Section 3.4, as the case may be, when such
Stockholder together with its permitted transferees owns less than 2% of the
outstanding Common Stock, on an as converted basis.
SECTION 5.2 Amendments and Waivers. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or any other party unless such modification,
amendment or waiver is approved in writing by the Company and the Agent, acting
on behalf of the Investor Stockholders. The failure of any party to enforce any
of the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
SECTION 5.3 Successors, Assigns and Transferees. This Agreement shall bind
and inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, personal representatives, successors and permitted assigns.
This Agreement may not be assigned by any party hereto without the prior written
consent of the other parties, except as otherwise provided herein.
SECTION 5.4 Notices. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified; (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(c) five (5) days after having been sent
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by registered or certified mail, return receipt requested, postage prepaid; or
(d) one (1) business day after deposit with a nationally recognized overnight
courier, specifying next day delivery, with written verification of receipt. All
communications shall be sent, with respect to the Company and the Investor
Stockholders, to their respective addresses specified in the Stock Purchase
Agreement (or at such other address as any such party may specify by like
notice) and, with respect to any other party, to the address of such party as
shown in the stock record books of the Company (or at such other address as any
such party may specify to all of the above by like notice).
SECTION 5.5 Further Assurances. At any time or from time to time after the
date hereof, the parties agree to cooperate with each other, and at the request
of any other party, to execute and deliver any further instruments or documents
and to take all such further action as the other party may reasonably request in
order to evidence or effectuate the consummation of the transactions
contemplated hereby and otherwise to carry out the intent of the parties
hereunder.
SECTION 5.6 Entire Agreement. Except as otherwise expressly set forth
herein, this document, the Stock Purchase Agreement and the Restated
Registration Agreement embody the complete agreement and understanding among the
parties hereto with respect to the subject matter hereof and supersede and
preempt any prior understandings, agreements or representations by or among the
parties, written or oral, that may have related to the subject matter hereof in
any way.
SECTION 5.7 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach,
default or noncompliance by another party under this Agreement, shall impair any
such right, power or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of or in
any similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent or approval of any kind or character on
the part of any party hereto of any breach, default or noncompliance under this
Agreement or any waiver on such party's part of any provisions or conditions of
this Agreement, must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to any party, shall be cumulative and
not alternative.
SECTION 5.8 Governing Law; Jurisdiction; Waiver of Jury Trial. This
Agreement shall be governed by and construed and enforced in accordance with the
internal laws of the State of New York without regard to the principles of
conflicts of law thereof. Each party hereto hereby irrevocably submits to the
nonexclusive jurisdiction of the courts of the state of New York and of the
United States of America sitting in the City of New York, Borough of Manhattan,
for the adjudication of any dispute hereunder or in connection herewith or with
any transaction contemplated hereby or discussed herein, and hereby irrevocably
waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that
the venue thereof may not be appropriate, that such suit, action or proceeding
is improper or that this Agreement or any of the documents referred to in this
Agreement may not be
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enforced in or by said courts, and each party hereto irrevocably agrees that all
claims with respect to such suit, action or proceeding may be heard and
determined in such a New York state or federal court. Each party hereby
irrevocably waives personal service of process and consents to process being
served in any such suit, action or proceeding by mailing a copy thereof to such
party in the manner provided in Section 12(b) of the Stock Purchase Agreement
and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein shall be deemed to limit in
any way any right to serve process in any manner permitted by law. EACH PARTY
HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A
JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION
HEREWITH OR ARISING OUT OF THIS AGREEMENT OR ANY TRANSACTION CONTEMPLATED
HEREBY.
SECTION 5.9 Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
SECTION 5.10 Enforcement. Each party hereto acknowledges that money damages
would not be an adequate remedy in the event that any of the covenants or
agreements in this Agreement are not performed in accordance with its terms, and
it is therefore agreed that in addition to and without limiting any other remedy
or right it may have, the non-breaching party will have the right to an
injunction, temporary restraining order or other equitable relief in any court
of competent jurisdiction enjoining any such breach and enforcing specifically
the terms and provisions hereof.
SECTION 5.11 Titles and Subtitles. The titles of the sections and
subsections of this Agreement are for convenience of reference only and are not
to be considered in construing this Agreement
SECTION 5.12 Legend. Each certificate evidencing any of the shares of
Equity Securities held by the parties hereto shall bear a legend substantially
as follows:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS
AND CONDITIONS OF THE STOCKHOLDERS AGREEMENT, DATED AS OF JUNE, 2000,
AS THE SAME MAY BE AMENDED, A COPY OF WHICH THE COMPANY WILL FURNISH
TO THE HOLDER OF THIS CERTIFICATE UPON REQUEST AND WITHOUT CHARGE."
SECTION 5.13 Appointment of Agent.
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Each of the Investor Stockholders hereby irrevocably appoints UBS (the
"Agent") to act as its true and lawful agent and attorney-in-fact and
representative with full power and authority in its name, place and stead to act
on its behalf for all purposes under this Agreement. The foregoing power of
attorney is hereby declared to be irrevocable and coupled with an interest, and
such appointment includes, among other powers, the power and authority to
exercise all rights and privileges, and to discharge all obligations, of the
Investor Stockholders under this Agreement, including:
(a) designating and removing the Investor Representatives and otherwise
taking all actions required to be taken by the Investor Stockholders under
Article II, including providing consents;
(b) providing consents to Transfers under Section 3.3;
(c) giving and receiving notices hereunder and service of process in
any legal action or other proceedings arising out of or related to this
Agreement and the transactions hereby; and
(d) amending or waiving the provisions of this Agreement.
Any instructions given by the Agent hereunder shall be validly given on behalf
of each of the Investor Stockholders, and the Company shall have the right to
rely thereon. UBS hereby accepts the appointment provided for in this Agreement
and agrees to be bound by the provisions of this Agreement. All decisions and
actions by the Agent shall be binding upon each of the Investor Stockholders and
no Investor Stockholders shall have the right to object, dissent, protest or
otherwise contest the same. The Company may conclusively rely upon any action
taken by the Agent hereunder.
SECTION 5.14 Termination. By its execution hereof, each of the Company, ITI
Emerging Networks, Inc. and Casty agrees that the Subscription and Joint Venture
Agreement, dated as of November 23, 1998, as amended, by and among the Company,
Emerging Networks, Inc., ITI and Casty shall terminate concurrently with the
execution and delivery of this Agreement.
SECTION 5.15 Stockholder's Representation. (a) Each of the Stockholders
severally (and not jointly) represents and warrants that all of the Equity
Securities owned by it/him and any of its/his Affiliates is set forth on Exhibit
A hereto and that each such Stockholder or it/his Affiliate owns such Equity
Securities listed opposite its/his/their name free and clear of all Encumbrances
(as defined in the Stock Purchase Agreement) except, with respect to Shalom, the
Pledge Agreement.
(b) Each of Shalom and ITI severally (and not jointly) represents and
warrants that Shalom controls the voting and disposition rights on all shares of
Equity Securities owned by ITI or any of ITI's Affiliates.
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SECTION 5.16 Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be an original, but
all of which together shall constitute one instrument. This Agreement may be
executed by facsimile signature(s).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed the STOCKHOLDERS
AGREEMENT as of the date set forth in the first paragraph hereof.
IFX CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
UBS CAPITAL AMERICAS III, L.P.
By: UBS Capital Americas (LA-Advisors),
LLC
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Principal
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
UBS CAPITAL LLC
By: /s/ G.A. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Attorney-in-fact
By: /s/ ▇▇▇▇ ▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Attorney-in-fact
INTERNATIONAL TECHNOLOGY
INVESTMENTS, LC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
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/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇. ▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The provisions of Section
5.14 of this Agreement are
hereby acknowledged and agreed to.
EMERGING NETWORKS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: President
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