Exhibit 10.13
AMENDMENT NUMBER 1 TO STOCKHOLDERS AGREEMENT
AMONG IFX CORPORATION, UBS CAPITAL AMERICAS III, L.P.,
UBS CAPITAL LLC, INTERNATIONAL TECHNOLOGY INVESTMENTS, LC,
XXXX XXXXXXXXXX, XXXXXXX XXXXXX AND XXX X. XXXXX
THIS AMENDMENT NUMBER 1 TO STOCKHOLDERS AGREEMENT (the "Stockholders Agreement")
AMONG IFX CORPORATION ("IFX"), UBS CAPITAL AMERICAS III, L.P., UBS CAPITAL LLC
(collectively "UBS"), INTERNATIONAL TECHNOLOGY INVESTMENTS, LC ("ITI"), XXXX
XXXXXXXXXX ("Xxxxxxxxxx"), XXXXXXX XXXXXX ("Shalom") and XXX X. XXXXX ("Casty")
is entered into as of July 28, 2000, by and among the undersigned.
WHEREAS, Casty has entered into that certain Stock Purchase Agreement dated
as of July 12, 2000, between Casty and Xxxxx X. Xxxxx, not individually but
solely as Trustee of the Casty Grantor Subtrust (the "Subtrust"), pursuant to
which Casty will sell all of his shares of IFX to the Subtrust (the
"Transaction");
WHEREAS, Casty desires to relinquish his ability to designate a director to
be elected to the Board of Directors of IFX; and
WHEREAS, the undersigned are willing to agree that Casty shall not be
required to vote shares held by the Subtrust.
NOW, THEREFORE, the undersigned agrees as follows:
1. In Section 1.1, the phrase "Casty Representative" shall be changed to
"Eidelstein Representative."
2. Section 2.1 is amended to read as follows:
SECTION 2.1 Board Representation.
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(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 Eidelstein (the
"Eidelstein Representative"), (iv) one (1) shall be jointly designated by
ITI and Eidelstein (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 Xxxxxxx X. Xxxxx and Xxxx X.
Lama, the initial ITI Representative shall be Xxxxxxx Xxxxxx, the initial
Eidelstein Representative
Exhibit 10.13
shall be Xxxx Xxxxxxxxxx, and the initial Joint Representative shall be
Xxxxxx Xxxxxx. If, at any time, ITI and Eidelstein are unable to agree upon
the designation of a Joint Representative, the Joint Representative shall
be designated by Xxxx Xxxxxx. 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 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.
(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 Eidelstein 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 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
Eidelstein, 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
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Exhibit 10.13
cause to be taken all actions necessary to remove any Director designated
by the former. Unless the Investor Stockholders, ITI and/or Eidelstein, 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 Eidelstein now or hereafter serving on the Board and shall not
prevent the designees of the Investor Stockholders, ITI or Eidelstein 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 Eidelstein in their capacity as stockholders of the Company
hereunder.
3. Section 3.4 is amended to read as follows:
SECTION 3.4 Transfers by Casty.
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(a) 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)
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, and further any transferee of Casty may Transfer Equity
Securities to Casty; 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 (other than the Subtrust) 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.
(b) The provisions of this Section 3.4 shall terminate upon the
earlier of: (i) a Qualified Public Offering and (ii) the time at which the
Investor
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Exhibit 10.13
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).
4. The undersigned waive any of their rights under Sections 3.5 and 3.6
with respect to Transfers between Casty and the Subtrust.
5. Casty represents and warrants that as of the date hereof, he
individually owns 3,061,410 shares of the $.02 par value Common Stock of IFX and
that immediately after the effectiveness of the Transaction, that he will own no
shares.
6. The Subtrust represents and warrants that as of the date hereof, it
owns no shares of IFX and that immediately after the Transaction, it will own
3,061,410 Shares. The Subtrust further represents and warrants that the sole
beneficiaries of the Subtrust are Affiliates of Xxx X. Xxxxx.
7. The Subtrust acknowledges that it is subject to the provisions of the
Stockholders Agreement (including but not limited to Sections 3.4 and 2.1), to
the same extent as if it were Casty.
8. Casty acknowledges that he shall be subject to Sections 3.4 and 2.1 of
the Stockholders Agreement with respect to Shares that he acquires after the
date hereof.
9. The undersigned affirm and hereby ratify all other provisions of the
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed the AMENDMENT NUMBER 1 TO
STOCKHOLDERS AGREEMENT as of the date set forth in the first paragraph hereof.
IFX CORPORATION
By: /s/ Xxxx Xxxxxxxxxx
-----------------------------------------
Name: Xxxx Xxxxxxxxxx
Title: President
UBS CAPITAL AMERICAS III, L.P.
By: UBS Capital Americas (LA-Advisors), LLC
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Exhibit 10.13
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Chief Financial Officer
By: /s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Principal
UBS CAPITAL LLC
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
Title: Attorney-in-fact
By: /s/ Xxxxxx Xxxxxxxxx
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Name: Xxxxxx Xxxxxxxxx
Title: Attorney-in-fact
INTERNATIONAL TECHNOLOGY
INVESTMENTS, LC
By: /s/ Xxxxxxx Xxxxxx
------------------------------
Name: Xxxxxxx Xxxxxx
Title: Manager
/s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
/s/ Xxx X. Xxxxx
-----------------------------------
Xxx X. Xxxxx
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Exhibit 10.13
/s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx
CASTY GRANTOR SUBTRUST
/s/ Xxxxx X. Xxxxx
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By: Xxxxx X. Xxxxx
Its: Trustee
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