Exhibit E
THIRD AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
among
IFX CORPORATION,
UBS CAPITAL AMERICAS III, L.P.,
UBS CAPITAL LLC,
INTERNATIONAL TECHNOLOGY INVESTMENTS, LC,
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
and
▇▇▇ ▇. ▇▇▇▇▇
dated as of February 19, 2002
IFX CORPORATION
THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this "Agreement")
is entered as of February 19, 2002, among IFX CORPORATION, a Delaware
corporation (the "Company"), UBS CAPITAL AMERICAS III, L.P., a Jersey, Channel
Islands 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 ("Shalom"), and ▇▇▇ ▇. ▇▇▇▇▇, successor in interest
to Casty Grantor Subtrust ("Casty"; ITI, Shalom, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and any other
Person who becomes a party to this Agreement pursuant to the last sentence of
Section 5.2, individually, a "Stockholder," and collectively, the
"Stockholders").
RECITALS
WHEREAS, the Company and the Investor Stockholders entered into that
certain IFX Corporation Preferred Stock Purchase Agreement, dated as of June 15,
2000, pursuant to which the Investor Stockholders purchased 2,030,869 shares of
Series A Preferred Stock; and
WHEREAS, as a condition to and in consideration of the Investor
Stockholders' purchase of Series A Preferred Stock, the Company, the Investor
Stockholders and the Stockholders entered into that certain Amended and Restated
Stockholders Agreement dated as of June 15, 2000; and
WHEREAS, the Company and the Investor Stockholders entered into that
certain IFX Corporation Preferred Stock Purchase Agreement, dated March 13,
2001, pursuant to which the Investor Stockholders purchased 4,418,262 shares of
Series B Preferred Stock; and
WHEREAS, as a condition to and in consideration of the Investor
Stockholders' purchase of Series B Preferred Stock, the Company, the Investor
Stockholders, Casty Grantor Subtrust and the Stockholders (except Casty) entered
into that certain Second Amended and Restated Stockholders Agreement dated as of
May 7, 2001 (the "Existing Agreement"); and
WHEREAS, the Company and the Investor Stockholders have entered into the
IFX Corporation Series C Convertible Preferred Stock Purchase Agreement, dated
October 11, 2001 (the "Stock Purchase Agreement"), pursuant to which the
Investor Stockholders will acquire shares of newly issued Series C Preferred
Stock; and
WHEREAS, as a condition to and in consideration of the Investor
Stockholders' purchase of Series C Preferred Stock, the Company, the Investor
Stockholders and the Stockholders have agreed to amend and restate the Existing
Agreement in the manner set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and for other valuable consideration the receipt and
sufficiency of which are hereby acknowledged, 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:
"Affiliate" of a specified Person shall mean (a) any Person that directly
or indirectly, through one or more intermediaries, controls, is controlled by,
or is under common control with, such specified Person, (b) in the case of a
natural Person, such Person's spouse, parent or lineal descendant (whether by
blood or adoption and including stepchildren), a trust primarily for the benefit
of such Person and the foregoing, (c) in the case of a trust any Person with
whom the beneficiaries of the Trust are Affiliates, or (d) in the case of UBS,
(i) any company under the direct or indirect control of UBS AG (a "UBS Group
Company") and/or any partnership or unincorporated association under the direct
or indirect control of any UBS Group Company which includes, without limiting
the generality of the foregoing, any limited partnership the general partner of
which is a UBS Group Company and any limited liability company the managing
member of which is a UBS Group Company, and (ii) any alternative investment
vehicle formed by either of the foregoing, or any other entity (x) in which UBS
AG directly or indirectly owns at least 20% of the equity interests and (y) is
advised or managed (whether pursuant to contract, as general partner, managing
member or otherwise) by an entity in which UBS AG has a direct or indirect
equity interest.
"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, 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.
"Bona Fide Purchaser" means, with respect to a proposed Transfer of Equity
Securities, any transferee of Equity Securities who or which (a) is not an
Affiliate of the Investor Stockholders and (b) has delivered a good faith
written offer to purchase Equity Securities.
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"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 Preferred Stock.
"Casty" has the meaning assigned to such term in the preamble.
"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.
"Certificates of Designation" means, collectively, the Series A
Certificate of Designation, the Series B Certificate of Designation and the
Series C Certificate of Designation.
"Closing" has the meaning assigned to such term in the Stock Purchase
Agreement.
"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.
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"Family" means any spouse, lineal ancestor or descendant, brother or
sister
"Holder" means an Investor Stockholder 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)(14) 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.
"Independent Representative" has the meaning assigned to such term in
Section 2.1(a).
"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.
"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).
"Permitted Sales" means (i) in the case of ITI and Shalom the Transfers
permitted in the first sentence of Section 3.3(a), (ii) in the case of
Eidelstein, the Transfers permitted in the second sentence of Section 3.3(a),
(iii) in the case of Casty, the Transfers permitted in the first sentence of
Section 3.4(a) and (iv) in the case of any other Stockholder, Transfers to or
among such Stockholder's Affiliates.
"Person" means any individual, corporation, limited liability company,
limited or general partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, government or any agency or political
subdivisions thereof or any other entity.
"Preferred Stock" means the Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock and any other class or series of preferred stock
of the Company which is convertible, directly or indirectly, into Common Stock,
whether at the time of issuance or upon passage of time or the occurrence of
some future event.
"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 Rights 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).
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"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.
"Seller" has the meaning assigned to such term in Section 3.5(a).
"Series A Certificate of Designation" means the Amended Certificate of
Designation, Number, Powers, Preferences and Relative, Participating and Other
Rights of Series A Convertible Preferred Stock of the Company in the form filed
with the Secretary of State of the State of Delaware, as amended from time to
time.
"Series B Certificate of Designation" means the Amended Certificate of
Designation, Number, Powers, Preferences and Relative, Participating and Other
Rights of Series B Convertible Preferred Stock of the Company in the form filed
with the Secretary of State of the State of Delaware, as amended from time to
time.
"Series C Certificate of Designation" means the Certificate of
Designation, Number, Powers, Preferences and Relative, Participating and Other
Rights of Series C Convertible Preferred Stock of the Company in the form filed
with the Secretary of State of the State of Delaware, as amended from time to
time.
"Series A Preferred Stock" means the Series A Convertible Preferred Stock,
par value $1.00 per share, of the Company.
"Series B Preferred Stock" means the Series B Convertible Preferred Stock,
par value $1.00 per share, of the Company.
"Series C Preferred Stock" means the Series C Convertible Preferred Stock,
par value $1.00 per share, of the Company.
"Shalom" has the meaning assigned to such term in the preamble.
"Stockholders" has the meaning assigned to such term in the preamble.
"Stock Purchase Agreement" has the meaning assigned to such term in the
recitals.
"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.
"UBS" means (i) UBS Capital Americas III, L.P., a Jersey, Channel Islands
limited partnership, (ii) UBS Capital LLC, a Delaware limited liability Company,
and (iii) any Affiliate of UBS, individually and collectively.
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"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 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 be comprised of
seven (7) Directors of whom: (i) three (3) shall be designees of the
Investor Stockholders (the "Investor Representatives"), (ii) one (1) shall
be the designee of ITI (the "ITI Representative"), (iii) one (1) shall be
the designee of Casty (the "Casty Representative"), (iv) one (1) shall be
an Independent Director designated by the Investor Stockholders (the
"Investor Independent Representative") and (v) one (1) shall be an
Independent Director acceptable to the Investor Stockholders, Casty and
ITI (with such consents not to be unreasonably withheld or delayed) (the
"Independent Representative"). The initial Investor Representatives shall
be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇. Lama and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the initial ITI
Representative shall be Shalom, the initial Casty Representative shall be
Eidelstein, the initial Investor Independent Representative shall be
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the initial Independent Representative shall be
▇▇▇▇▇▇ ▇▇▇▇▇. For purposes hereof, each of the three Investor
Representatives and the Investor Independent Representative shall count as
one of the four Preferred Directors (as defined in the Certificates of
Designation).
(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, the Investor Independent
Representative and the Independent Representative (collectively, the
"Representatives"), and (iii) to cause the Representatives to be duly
appointed in accordance with the foregoing and, in the case of the
Investor Representatives, in accordance with the Certificates of
Designation. The Company agrees to use its reasonable best efforts to
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 and the Stockholders 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
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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, Investor Stockholders and the Stockholders hereby agrees to take,
at any time and from time to time, all actions necessary to accomplish the
same. Upon the written request of any party who is entitled to designate a
Representative, each of the Investor Stockholders and Stockholders 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 such party.
Unless, any party who is entitled to designated a Representative 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) Each of the Company, the Investor Stockholders and the
Stockholders agrees not to take any action that would cause the number of
Directors constituting the entire Board to be other than the number
provided in Section 2.1(a) without the written consent of each other party
entitled to designate a Representative.
(f) The covenants and agreements set forth herein shall be subject
to the fiduciary obligations of the Representatives now or hereafter
serving on the Board and shall not prevent the Representatives 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 rights or 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. The Compensation Committee shall consist of three (3)
Directors, one (1) of whom shall be an Investor Representative and two (2) of
whom shall be Independent Representatives. The Audit Committee shall consist of
three (3) Directors, one (1) of whom shall be an Investor Representative and two
(2) of whom shall be Independent Representatives. The Compensation Committee
shall have responsibility for compensation matters customarily addressed by
compensation 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 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. Notwithstanding anything to the contrary
herein, the Investor Stockholders and the Stockholders acknowledge and agree
that the
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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.
(a) Except with respect to the rights of the Investor Stockholders
as provided in subparagraph (b) below, Sections 2.1 and 2.2 shall
terminate upon a Qualified Public Offering. Prior to a Qualified Public
Offering, the rights of the Investor Stockholders and any Stockholder
under Sections 2.1 and 2.2 (and the corresponding obligation of the
Stockholders) shall terminate at such time as such Investor Stockholder or
Stockholders, as the case may be, ceases to own at least 25% of the number
of shares of Common Stock on an as converted basis that such Investor
Stockholder or Stockholders held as of Closing.
(b) The rights of the Investor Stockholders under Sections 2.1 and
2.2 (and the corresponding obligations of the Stockholders) shall survive
a Qualified Public Offering, provided that, at such time 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
(whether or not, in the case of the Preferred Stock, such Preferred Stock
is then currently convertible at the option of the holder into Common
Stock), 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 and such Affiliates held as of
the Closing (adjusted for stock splits, combinations, stock dividends and
the like), the Investor Stockholders shall cease to have the right to
designate Directors pursuant to Section 2.1 and members of the
Compensation Committee and Audit Committee pursuant to Section 2.2 and all
other rights of the Investor Stockholders under this Article II shall
terminate.
ARTICLE III
TRANSFERS
SECTION 3.1 Investor Stockholder Transfers. Each Investor 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 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) a Transfer
otherwise permitted hereunder and in compliance herewith. Any Equity Securities
Transferred pursuant to clause (a) or (b) shall no longer be subject to this
Agreement. Each transferee Holder under clause (c) shall agree in writing 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 Stockholder, and all stock certificates representing shares transferred
to such transferee 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. Any Equity Securities Transferred pursuant to clauses (a) or (b) shall
no longer be subject to this Agreement, except as provided herein. Each
transferee under clause (c) shall agree in writing 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 Stockholder, and all stock
certificates representing shares transferred to such transferee shall bear a
legend providing notice of the restrictions contained in this Agreement.
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 25,000 shares of Common Stock
during any calendar quarter, in each case, 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;
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 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, Eidelstein, ITI or Shalom may Transfer all or any of their
Equity Securities (x) 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
_________________________ 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.
(b) The Transfer restrictions contained in Section 3.3(a) 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 less
than 20% of the Common Stock (on an as converted basis) that the Investor
Stockholders owned as of the Closing.
SECTION 3.4 Transfers by Casty.
(a) Casty agrees that neither it nor any of its Affiliates shall
Transfer, during any calendar quarter, more than the number of Shares of
Common Stock permitted under Rule 144(e) of the Securities Act measured as
of the last day of such calendar quarter plus 50% of the number of Shares
of Common Stock which were eligible for sale (but not sold
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under this Section 3.4(a)) during the preceding calendar quarters
(beginning with the calendar quarter ending March 31, 2001), 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 (x) to any member of such Stockholder's Family, 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 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 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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.
(b) The Transfer restrictions contained in Section 3.4(a) 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 less
than 20% of the Common Stock (on an as converted basis) that the Investor
Stockholders owned as of the Closing.
SECTION 3.5 Right of First Refusal on Certain Transfers.
(a) If at any time a Stockholder or any of his/its 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 last sentence of Sections 3.3(a) and 3.4(a) 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 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
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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 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.
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(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 less than 20% of the Common
Stock (on an as converted basis) that the Investor Stockholders owned as of the
Closing.
SECTION 3.6 Right of Participation in Sales by Stockholders.
(a) If at any time any of the Stockholders (the "Tag-Along Seller")
desires to Transfer all or any part of the Equity Securities (other than
pursuant to Permitted Sales) owned by such Tag-Along Seller to any Person
other than Investor Stockholders (including the other Holders) (the
"Buyer"), the Investor Stockholders shall, except as provided below, have
the right to sell to the Buyer, as a condition to such sale by Tag-Along
Seller, at the same price per share and on the same terms and conditions
as involved in such sale by the Tag-Along Seller, a number of shares of
Common Stock (on an as converted basis) equal to the number derived from
multiplying the total number of shares of Common Stock (on an as converted
basis) proposed to be sold by the Tag-Along Seller by a fraction, the
numerator of which is the total number of shares of Common Stock (on an as
converted basis) held by the Investor Stockholders and the denominator of
which is the total number of shares of Common Stock (on an as converted
basis) held by the Tag-Along Seller and the Investor Stockholders
(including the other Holders). The parties acknowledge and agree that any
Transfer described in the last sentence of Sections 3.3(a) and 3.4 (a)
shall not be subject to the terms of this Section.
(b) Each Investor Stockholder wishing to so participate in any sale
under this Section 3.6 shall notify the Tag-Along Seller in writing of
such intention within twenty (20) days after the date of their receipt of
the Offer.
(c) The Tag-Along Seller and each participating Investor Stockholder
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
Tag-Along 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 Tag-Along Seller and each participating Investor Stockholder
pro rata based upon the relative amount of the Equity Securities that the
Tag-Along Seller and each participating Investor Stockholder is otherwise
entitled to sell pursuant to Section 3.6(a).
(d) The provisions of this Section 3.6 shall terminate upon a
Qualified Public Offering.
SECTION 3.7 Right of Participation in Sales by Investor Stockholders.
(a) If at any time the Investor Stockholders desire to Transfer at
least 40% of the Equity Securities owned in the aggregate by them and
their Affiliates to any Person other than an Affiliate of the Investor
Stockholders (the "Tag-Along Purchaser"), each of the other Stockholders,
shall have the right to sell to the Tag-Along Purchaser, as a condition to
such sale by the Investor Stockholders, at the price per share and on the
terms and conditions applicable to the Common Stock set forth in the
Tag-Along Purchaser's offer to the Investor
13
Stockholders (the "Tag-Along Purchase Offer"), a number of shares of
Common Stock equal to the number derived from multiplying the total number
of shares of Common Stock (on an as converted basis) proposed to be sold
by the Investor Stockholders by a fraction, the numerator of which is the
total number of shares of Common Stock (on an as converted basis) held by
such Stockholder and the denominator of which is the total number of
shares of Common Stock (on an as converted basis) held by all Stockholders
and the Investor Stockholders.
(b) Each Stockholder wishing to so participate in any sale under
this Section 3.7 shall notify the Agent in writing of such intention
within twenty (20) days after the date such Stockholder's receipt of the
Tag-Along Purchase Offer.
(c) The Investor Stockholders and each participating Stockholder
shall sell to the Tag-Along Purchaser all, or at the option of the
Tag-Along Purchaser any part, of the Equity Securities proposed to be sold
by them at the price per share and on the terms and conditions as set
forth with respect to each class and series of Capital Stock in the
Tag-Along Purchaser Offer; provided, however, that any purchase of less
than all of such Equity Securities by the Tag-Along Purchaser shall be
made from the Investor Stockholders and each participating Stockholder pro
rata based upon the relative amount of the Equity Securities that the
Investor Stockholder (including the other Holders) and each participating
Stockholder is otherwise entitled to sell pursuant to Section 3.7(a).
(d) The provisions of this Section 3.7 shall terminate upon a
Qualified Public Offering.
SECTION 3.8 Drag-Along Rights.
(a) Subject to Section 3.8(c) hereof, if the Investor Stockholders
(collectively, the "Drag-Along Transferor") approve a sale of (i) a
majority of the outstanding shares of Common Stock on an as converted
basis to a Bona Fide Purchaser or (ii) all or substantially all of the
assets of the Company to a Bona Fide Purchaser (each an "Approved Sale"),
whether by way of merger, consolidation, sale of stock or assets, or
otherwise, all Stockholders shall consent to and raise no objections
against the Approved Sale, and if the Approved Sale is structured as (A) a
merger or consolidation of the Company or a subsidiary, or a sale of all
or substantially all of the assets of the Company or a subsidiary, each
Stockholder shall waive any dissenters rights, appraisal rights or similar
rights in connection with such merger, consolidation or asset sale, or (B)
a sale of a majority of the outstanding shares of Common Stock on an as
converted basis the Stockholders shall agree to sell their respective
proportionate percentages of the Common Stock on an as converted basis
which are the subject of the Approved Sale, on the same terms and
conditions as applicable to the Common Stock of the Drag-Along Transferor.
The Stockholders shall take all actions reasonably requested by the Drag
Along Transferor in connection with the consummation of the Approved Sale,
including the execution of all agreements and such instruments and other
actions requested by the Drag Along Transferor to provide the
representations, warranties, indemnities, covenants, conditions,
agreements, escrow agreements and other provisions and agreements relating
to such Approved Sale; provided, however, that each participating
Stockholder's liability under any such agreement or instrument shall be
limited to his/her/its
14
proportionate percentage of such liability (based on the number of shares
of Common Stock on an as converted basis held by such Stockholder which
are subject to the Approved Sale) and shall not exceed the proceeds
received by such Stockholder. The Stockholders shall be permitted to sell
their Equity Securities pursuant to an Approved Sale without complying
with the provisions of Sections 3.1, 3.2, 3.3, 3.4, 3.5, 3.6 and 3.7 of
this Agreement.
(b) If the Company and/or the Drag-Along Transferor or their
representatives, enter into any negotiation or transaction for which
Regulation D under the Securities Act (or any similar rule or regulation
then in effect) may be available with respect to such negotiation or
transaction (including a merger, consolidation or other reorganization),
each Stockholder who is not an accredited investor (as such term is
defined in Rule 501 under the Securities Act) will, at the request of the
Company or the Drag Along Transferor, appoint a purchaser representative
(as such term is defined in Rule 501 under the Securities Act) reasonably
acceptable to the Company and such Drag Along Transferor.
(c) At the closing of the Approved Sale, each of the Stockholders
shall (a) execute any documents or instruments reasonably requested by the
Bona Fide Purchaser, and (b) deliver to the Bona Fide Purchaser
certificates for the Equity Securities, duly endorsed or accompanied by
duly executed stock assignments separate from certificate, free and clear
of all encumbrances (other than those created pursuant to this Agreement),
against delivery by the Bona Fide Purchaser of the consideration
(including a certified check for the cash portion of such consideration)
for the total sales price of the Equity Securities being sold by such
Stockholder.
(d) The provisions of this Section 3.8 shall terminate upon
consummation of a Qualified Public Offering.
ARTICLE IV
APPROVAL RIGHTS OF STOCKHOLDERS
SECTION 4.1 Stockholder Approval Rights. The Company shall not (and the
Investor Stockholders shall not take any action to cause the Company to) take
any action to (i) enter into any transaction, or any agreement or understanding
with the Investor Stockholders or any Affiliate of the Investor Stockholders
(other than with respect to a Transfer of Equity Securities or as contemplated
by this Agreement, the Stock Purchase Agreement or the Transaction Documents (as
defined in the Stock Purchase Agreement)) or (ii) amend, modify, change or alter
the Company's Certificate of Incorporation or By-Laws or the Certificates of
Designation in a manner adverse to the Company or holders of Common Stock,
without the written consent of the Stockholders holding a majority of the Common
Stock, on an as converted basis, held by all Stockholders which consent shall
not be unreasonably withheld or delayed.
ARTICLE V
MISCELLANEOUS
15
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) with respect to ITI and Shalom and their respective
permitted transferees referred to in the last sentence of Section 3.3(a) and
Casty and its permitted transferees referred to in the last sentence of Section
3.4(a), as the case may be, when such Stockholder together with such permitted
transferees owns less than 1.25% of the outstanding Common Stock (on an as
converted basis), (c) with respect to Eidelstein and his permitted transferees
referred to in the last sentence of Section 3.3(a), when Eidelstein's employment
with the Company is terminated, (d) with respect to any other Stockholder, when
such Stockholder together with its Affiliates owns less than 1.25% of the
outstanding Common Stock (on an as-converted basis), and (e) with respect to all
Investor Stockholders and Stockholders, except as expressly provided herein,
upon a Qualified Public Offering.
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, the Agent, acting on
behalf of the Investor Stockholders, and the Stockholders holding a majority of
the Common Stock on an as converted basis held by all 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. The parties hereby consent to any amendment to this
Agreement solely to add as a party hereto any Person acquiring shares of
Preferred Stock or Common Stock after the date hereof pursuant to the Tutopia
Put Agreement (as defined in the Stock Purchase Agreement).
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 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
16
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 Registration Rights
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 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
17
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 THIRD AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT, DATED AS OF FEBRUARY 19, 2002, 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. 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.
18
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 of Joint Venture Agreement. By its execution
hereof, each of the Company, ITI, Emerging Networks, Inc. and Casty confirms
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 was terminated as of June 15, 2000.
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).
(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.
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]
19
IN WITNESS WHEREOF, the parties hereto have executed the THIRD AMENDED AND
RESTATED 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 III, LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Principal
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Chief Financial Officer
UBS CAPITAL LLC
By: /s/ ▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇
Title: Attorney-in-Fact
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: Attorney-in-Fact
INTERNATIONAL TECHNOLOGY
INVESTMENTS, LC
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Manager
20
/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
21
EXHIBIT A
EQUITY SECURITIES OWNERSHIP BY STOCKHOLDERS AND THEIR AFFILIATES
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 10,201(1)
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 383,245(2)
▇▇▇ ▇. ▇▇▇▇▇ 2,960,282
International Technology Investments, LC 4,500,000
(1) Includes 10,201 shares subject to a currently exercisable option to
purchase held by ITI
(2) Includes 351,750 shares of Common Stock subject to an option granted to
Eidelstein pursuant to the IFX 1998 Stock Option and Incentive Plan, which
option currently is exercisable
22
