VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (the "Agreement"), dated as of March 12, 1998,
by and between Enron Communications Group, Inc., a stockholder of Rhythms
NetConnections Inc., a Delaware corporation (the "Company") (together with
transferees of voting trust certificates subsequently agreeing to be bound by
this Agreement, collectively referred to herein as the "Beneficiaries" or
individually as the "Beneficiary"), and the Company, as voting trustee (with any
successor to him as voting trustee, referred to herein as the "Trustee").
WHEREAS, the Beneficiary owns or may in the future own shares of Series B
Preferred Stock, $0.001 par value ("Series B Preferred"), of the Company in the
amount set forth opposite its name on SCHEDULE A;
WHEREAS, the Beneficiary believes it is in its best interests and in the
best interests of the Company to transfer to the Trustee in trust for the
purpose of voting in elections on matters as described herein all of the shares
of Series B Preferred Stock of the Company either presently owned by it or
hereafter acquired by it by any means (all such shares to be collectively
referred to herein as "Shares"); and
WHEREAS, the Beneficiary desires to empower the Trustee to vote the Shares
owned by it in trust for it for the purpose of voting on stockholder matters as
described herein for the term of this Agreement in the following manner.
NOW, THEREFORE, in consideration of the foregoing and of the agreements
contained herein, and in consideration of the transfer in trust to Trustee of
the Shares, it is hereby agreed:
1. APPOINTMENT OF TRUSTEE. The Beneficiary hereby appoints the Trustee
to serve as trustee of the Rhythms NetConnections Inc. Voting Trust, the trust
established by this Agreement (the "Trust") and the Trustee hereby accepts such
appointment and agrees to act as trustee of the Trust in accordance with the
terms of this Agreement.
2. DEPOSIT OF STOCK AND ISSUANCE OF VOTING CERTIFICATES.
(a) The Beneficiary shall forthwith deliver to the Trustee
certificates for all Shares now owned by it, and will deliver to the Trustee
certificates for all Shares hereafter acquired by it by any means, immediately
upon becoming the owner thereof, duly endorsed for transfer or accompanied by
duly executed instruments of transfer. Promptly upon receipt of such
certificates, the Trustee shall cause such Shares to be transferred and
registered in the stock records of the Company in the name of "Trustee of the
Rhythms NetConnections Inc. Voting Trust" or a nominee name designated by him,
and shall cause the new share certificates to bear a legend stating that the
Shares evidenced thereby (the "Trustee Shares") are subject to the terms of this
Agreement.
(b) The Trustee shall issue and deliver to the Beneficiary a Voting
Trust Certificate (a "Certificate") in respect of the number and type of Shares
transferred to and held of record by the Trustee for the benefit of the
Beneficiary under this Agreement, in the form of EXHIBIT A hereto (except that
the Trustee may affix to a Certificate any restrictive legend borne by the
certificates for Shares in respect of which Shares the Certificate is issued).
Such Certificates shall be signed by the Trustee.
3. TRUSTEE'S POWERS AND DUTIES.
(a) STOCKHOLDER MATTERS. The Trustee shall vote the Trustee Shares
as follows:
(i) VOTE OF THE SERIES B PREFERRED. Except as provided in
subsection (ii) below, with respect to any proposal submitted for stockholder
vote (a "Stockholder Proposal") including without limitation any matters on
which the Preferred Stock or Series B Preferred Stock has class or series voting
rights (including without limitation a proposed Corporate Transaction (defined
below) to the extent such Corporate Transaction is submitted for a stockholder
vote), the Trustee shall vote the Trustee's Shares for or against such
Stockholder Proposal, in the same proportion as a majority of the then
outstanding shares of Series A Preferred, voting as a separate class (the
"Series A Majority"), are voted or abstain. For purposes of this subsection
(i), a Corporate Transaction shall mean (A) any consolidation or merger
reorganization with or into any other corporation or corporations (including
without limitation a merger or consolidation as contemplated under Subchapter IX
of the Delaware General Corporation Law), or the effectuation of a transaction
in which more than 50% of the voting power is disposed of, or a sale, conveyance
or disposition of all or substantially all of the Company's assets, (B) a
corporate partnering or similar transaction, (C) any subsequent equity
financings of the Company including without limitation the creation of any new
class or series of stock or any other securities convertible into equity
securities of the corporation having a preference over, or being on parity with,
the Series A Preferred Stock or Series B Preferred Stock with respect to voting,
dividends or upon liquidation or (D) any amendment to the Company's Restated
Certificate of Incorporation as it may be amended from time to time.
(ii) OTHER STOCKHOLDER MATTERS. Notwithstanding subsection (i)
above, with respect to any proposal submitted for stockholder vote that meets
the criteria set forth in Article IV, Sections B(4)(b) or (5)(a) of the Restated
Certificate of Incorporation, the Trustee shall vote the Trustee's Shares in the
manner directed (whether for, against or to abstain) by the Beneficiary
hereunder for whom the Trustee Shares are held.
(b) NOTICE TO BENEFICIARIES. With respect to any proposal submitted
for stockholder vote or written consent of which the Trustee receives notice,
the Trustee shall give written notice thereof, including a copy of any such
notice received by Trustee and any other written material addressing such
proposal provided to stockholders or to Trustee, to the record holders of
Certificates (as of the record date applicable to the Trustee for Shares as to
such vote) promptly upon receipt thereof by Trustee. For all matters covered by
Section 3(a)(ii) above, the Trustee shall request instructions from such holders
as soon as reasonably
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possible, but not later than ten (10) days prior to the date such vote is
required; provided, however, that if the Trustee does not receive notice prior
to ten (10) days before such vote is due, the Trustee shall provide notice as
soon as reasonably possible as to the manner in which the Trustee Shares in
which they respectively have beneficial interests should be voted. Each record
holder of Certificates shall "vote" such beneficial interests for such matters
by returning written instructions to the Trustee, who shall vote the shares in
accordance with such instructions. For all matters covered by Section 3(a)(i)
above, the Trustee shall request from the Company and the Company shall provide
to Trustee on the day prior to the deadline for voting, the percentage of the
Series A Preferred Stock voting on the proposal and the percentage of those
voting that voted in favor of the proposal, against the proposal, or that
abstained with respect to the proposal. The Trustee shall vote the Shares in
the same percentage as the Series A Preferred Stock and in the same percentage
for, against and abstain as the vote of the Series A Preferred Stock.
(c) SALES. The Trustee shall have no authority to sell or otherwise
dispose of or to pledge, encumber or hypothecate, any of the Trustee Shares.
4. DIVIDENDS AND DISTRIBUTIONS. Upon the declaration of any dividends or
the payment of any other distribution of the Company with respect to Trustee
Shares held for the Beneficiary other than pro rata distributions of additional
voting shares of the Company, the Trustee shall distribute or cause all such
dividends and distributions to be distributed by the Company to the Beneficiary.
In the event of dissolution or liquidation of the Company during the term of
this Agreement in such manner as to entitle the holders of shares to liquidating
dividends in respect thereof, the Trustee shall distribute or cause all such
liquidating dividends with respect to the Trustee Shares to be distributed by
the Company to the Beneficiary.
5. THE TRUSTEE.
(a) TRUSTEE AS BENEFICIARY OR AFFILIATE. Any Trustee and any firm or
corporation of which such Trustee may be a member, agent, partner or employee
and any corporation, trust, or association of which such Trustee may be a
trustee, stockholder, director, officer, agent, or employee may contract with or
be or become pecuniarily interested, directly or indirectly, in any matter or
transaction to which the Company or any subsidiary or controlled or affiliated
corporation may be a party or in which it may be concerned, as fully and freely
as though such Trustee were not a Trustee hereunder. The Trustee may act as an
agent, employee, director and/or officer of the Company or of any such
subsidiary or controlled or affiliated corporation and, subject to the terms of
this Agreement, may vote the Trustee Shares in favor of matters in which the
Trustee or his affiliates are interested.
(b) SUCCESSOR TRUSTEES. The Trustee may resign by giving notice of
resignation to the Company and to the Beneficiary. Any successor Trustee shall
enjoy all the rights, powers, interests, and immunities of the Trustee as
originally constituted, and the title to the Trustee Shares of any Trustee who
may resign or be removed or become incapacitated (by death, disability or
otherwise) to act shall, upon such resignation or removal or incapacity, vest in
the successor Trustee. In the event of the removal, resignation, or incapacity
to act of
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any Trustee, a successor shall be appointed by the Beneficiary, which is
reasonably acceptable to the Company. If, within 45 days following such
removal, resignation or incapacity of the Trustee the Beneficiary has not
appointed a successor, a successor shall be appointed by a majority vote of the
Series A Preferred Stock and Series B Preferred Stock voting as a single class.
The Beneficiary may remove any Trustee with cause by written notice to the
Trustee and Board of Directors of the Company. In addition, a majority of the
Board of Directors of the Company may determine that any Trustee has become
incapacitated to act or may remove any Trustee for cause, in either case by
written consents. Notwithstanding any change in the Trustee, the Certificates
for Trustee Shares may be (i) voted and/or (ii) endorsed and transferred, by any
successor Trustee with the same effect as if voted, endorsed and transferred by
the former Trustee. The Trustee is authorized and empowered to cause any
further transfer of said shares to be made which may be necessary through the
occurrence of any change of person acting as Trustee hereunder.
(c) RELATIONSHIP OF PARTIES. The Trust created by this Agreement is
not intended to be, and shall not be deemed to be, and shall not be treated as a
general partnership, limited partnership, joint venture, corporation, or joint
stock company or association. The relationship of the Beneficiary to the
Trustee shall be solely that of beneficiary of the Trust created by this
Agreement and its rights shall be limited to those conferred upon it by this
Agreement.
(d) CONSULTATION WITH OUTSIDE ADVISORS. The Trustee may consult with
legal counsel, which may be counsel to the Company or any of its affiliates or
any of its or its affiliates' officers, directors or partners.
(e) LIABILITY. In voting on all matters which may come before any
meeting of stockholders of the Company the Trustee shall vote the Trustee Shares
in the manner prescribed by this Agreement, and it is understood that the
Trustee shall not incur responsibility by reason of any error of judgment or of
law or by any matter or thing done or omitted under this Agreement, except for
his own individual gross negligence or willful misconduct. No Trustee shall be
liable in any event for acts or defaults of any other Trustee or for acts or
defaults of any employee, agent, proxy, or attorney in fact of any other
Trustee. The Trustee shall always be protected and free from liability in
acting upon any notice, request, consent, instruction, certificate, declaration,
telefax, guarantee, affidavit, or other paper or document or signature
reasonably believed by him to be genuine and to have been signed by the proper
party or parties or by the party or parties purporting to have signed the same.
(f) TRUSTEE'S INDEMNITY. The Company shall indemnify, defend and
hold harmless the Trustee against any and all losses, damages, liabilities,
obligations, claims, demands, judgments, settlements, governmental
investigations, costs and expenses of any nature whatsoever, including the
reasonable fees and expenses of attorneys, accountants and consultants
(collectively, "Damages"), incurred in connection with or arising from the
performance of his duties under this Agreement (except for his gross negligence
or willful misconduct). Such indemnification shall be paid as incurred and on
demand, subject to an undertaking by the Trustee to repay if it is ultimately
determined that he is not entitled to
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such indemnification. In the event the Beneficiary shall request the Trustee to
bring an action on its behalf, such party shall pay in advance all the expense
of prosecuting such action and shall indemnify, defend and hold harmless the
Trustee against all Damages incurred in connection with such action; the Trustee
shall have no obligation to commence or proceed with such suit unless he is
satisfied that all necessary monies have been paid in advance or advanced to the
Trustee for this purpose.
6. RESTRICTIONS ON TRANSFER. The Certificates shall be transferable only
as provided in said Certificates and this Agreement. The Beneficiary shall be
at liberty to sell, transfer or otherwise dispose of its Certificates issued
hereunder; PROVIDED, that the transferee shall have agreed in writing to be
bound by this Agreement as though such transferee originally executed this
Agreement as a Beneficiary. All sales or transfers shall be recorded in the
Certificate Book (defined in Section 10 below) and any proper sale or transfer
made of any Certificate shall vest in the purchaser or transferee all rights of
the transferror and shall subject the purchaser or transferee to the same
limitations as those imposed on the transferror by the terms of the Certificate
so transferred, and by this Agreement. Upon any such transfer, following
execution of an agreement to be bound by this Agreement by a purchaser or
transferee and upon surrender to the Trustee of any Certificate sold or
transferred, duly endorsed for transfer, the Trustee shall deliver a Certificate
or Certificates to the purchaser or transferee for the beneficial interest in
the number and type of Trustee Shares represented by the Certificate so sold or
transferred. The Trustee shall not be required to recognize any sale or
transfer of a Certificate not made in accordance with the provisions hereof
unless the person or persons claiming such ownership shall have produced indicia
of title satisfactory to the Trustee, and shall have deposited with the Trustee
indemnity satisfactory to him, and shall have executed an agreement to be bound
by this Agreement.
7. CONTINUANCE AND TERMINATION OF TRUST.
(a) TERM AND TERMINATION. This Agreement shall terminate on the
earlier of (i) March 11, 2008; (ii) the date of the closing of a bona fide,
firmly underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offer and
sale of Common Stock of the Company to the public (the "Qualified Public
Offering"); (iii) effectuation by the Company of a transaction or series of
transactions in which the Company is consolidated or merged with or into any
other corporation or corporations and in which the Company is not the surviving
entity (but excluding a merger or consolidation of the Company with the parent
of the Company or one of the Company's majority owned subsidiaries or an entity
in which more than fifty percent (50%) of the voting control is controlled by
the persons or entities controlling more than fifty percent (50%) of the voting
control of the Company, whether or not the Company is the surviving entity
("Excluded Merger")) or in which the Company sells all or substantially all of
its assets (other than to the parent of the Company or one of the Company's
majority owned subsidiaries an entity in which more than fifty percent (50%) of
the voting control is controlled by the persons or entities controlling more
than fifty percent (50%) of the voting control of the Company ("Excluded Sale");
or (iv) the effective date of the liquidation or dissolution of the Company
(other than as a result of an Excluded Merger or Excluded Sale).
Notwithstanding the foregoing, this Agreement may (before a Qualified Public
Offering has
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occurred) be extended to a date certain after a Qualified Public Offering by the
written consent of the Beneficiary and of the Trustee (such extension not to be
beyond March 11, 2008). This Agreement may be renewed and the term of the Trust
extended at any time within the two (2) years prior to the expiration of the
Trust for additional periods not exceeding ten (10) years from the expiration
date of the Trust as originally fixed, or as last extended, by the written
agreement of the Beneficiary and of the Trustee (an "Extension Agreement"), as
to the Shares beneficially owned by the Beneficiary. In the event of such
extension, the Trustee shall, prior to the expiration as hereinabove provided,
as originally fixed, or as theretofore extended, as the case may be, file in the
Executive Office (as defined below) a copy of the agreement extending the
expiration date of this Agreement and thereupon the duration of this Agreement
shall be extended for the period fixed by such Extension Agreement; PROVIDED,
however, that no such Extension Agreement shall affect the rights or obligations
of persons not parties thereto. Except as otherwise provided in this Agreement,
the trust created by this Agreement is hereby expressly declared to be
irrevocable.
(b) CONSOLIDATION, EXCHANGE, RECAPITALIZATION. In the event of a
consolidation, share-for-share exchange, recapitalization or other
reorganization involving the Company (other than a transaction described in
Section 7(a) herein), this Agreement shall be effective and shall remain in
force for its full term, substituting, where appropriate, for the Shares issued
in such consolidation, exchange, recapitalization or other reorganization.
(c) ACTIONS FOLLOWING TERMINATION.
(i) As soon as practicable after the termination of this
Agreement, the Trustee shall by formal assignment of Trustee Shares cause the
Company to deliver to the Beneficiary share certificates or securities
representing the number of Shares together with any other property distributed
in respect of such Shares and not yet delivered to the beneficial owner, upon
the surrender of such Certificates properly endorsed.
(ii) If the Beneficiary cannot be located or fails or refuses to
surrender Certificates in exchange for shares and/or other property as
aforesaid, the Trustee may in his discretion deliver said shares and/or other
property to the Company for the benefit of the person or persons entitled
thereto. Upon any such delivery the Trustee shall be fully acquitted and
discharged with respect to the delivery of said shares and/or other property.
8. CONVERSION OF PREFERRED STOCK SUBJECT TO AGREEMENT. Upon the written
request of any holder of a Certificate representing Shares of Preferred Stock
and the surrender of the Certificate, the Trustee shall cause the number and
type of Trustee Shares of Preferred Stock designated by the holder and
underlying the Certificate to be converted into shares of Common Stock of the
Company. This Agreement shall apply in its entirety as to such shares issued
upon conversion. The Trustee shall issue a new Certificate in the form of
EXHIBIT A hereto to such holder in respect of the beneficial interests in shares
of Common Stock and, if any, the remaining unconverted shares of Preferred
Stock.
9. RECORD DATE. The Trustee shall use, as the record date for the
determination of the Beneficiary entitled to receive payment of any dividend or
other distribution, or any
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allotment of rights, or to exercise rights in respect of any other lawful
action, or to vote on any matter, the record date so fixed by the Company with
respect to the Shares. When a record date is so fixed, the Beneficiary of
record on that date is entitled to receive the dividend, distribution, or
allotment of rights, or to vote, or to exercise of the rights, as the case may
be, notwithstanding any transfer of Certificates after the record date. The
record date for determining Beneficiaries for any purpose other than set forth
in this Section shall be at the close of business on the day on which the
Trustee adopts the resolution relating thereto, or the sixtieth day prior to the
date of such other action, whichever is later.
10. INSPECTION OF RECORDS. The Trustee shall keep at 0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000, or such other address at which the
Company's principal executive office may be located (the "Executive Office"),
correct books of account of all his business and transactions, and a book to be
known as the "Certificate Book" containing the names of all persons who are
Beneficiaries, showing their places of residence, the number and type of shares
represented by the Certificates held by them, and the date they became the
owners thereof. This Agreement shall be open for inspection by any stockholder
of the Company, a Beneficiary, or the agent of either upon the same terms as the
record of stockholders of the Company is open to inspection by stockholders.
11. LOST OR STOLEN CERTIFICATES. If a Certificate shall be lost, stolen,
mutilated, or destroyed, the Trustee, in his discretion, may issue a duplicate
of such Certificate upon receipt of evidence of such fact satisfactory to him,
and upon receipt of an indemnity satisfactory to him, and upon receipt of the
existing Certificate, if mutilated.
12. MISCELLANEOUS.
(a) FILING OF AGREEMENT. The Trustee shall cause to be filed a copy
of this Agreement, and every amendment (including the written consent of the
Trustee as required pursuant to Section 7(a) hereof) or supplement hereto, in
the registered office of the Company in the State of Delaware and at the
Executive Office, which Agreement shall be open to the inspection of any
stockholder of the Company or any Beneficiary of this Agreement during business
hours of the Company.
(b) SUCCESSORS AND ASSIGNS.This Agreement shall bind the Trustee and
the Beneficiary hereunder and each and all of the heirs, executors,
administrators, personal representatives, successors, and assigns thereof, and
shall inure to the benefit of the Trustee, his successors, the Beneficiary, and
its permitted transferees.
(c) NOTICES. Unless otherwise expressly provided herein, all
notices, requests, demands, instructions, documents and other communications to
be given hereunder by any party to another shall be in writing, shall be sent to
the address/fax number set forth below (provided that any party may at any time
change its address for notice or other such information by giving written notice
thereof in accordance with this Section), and shall be deemed to be duly given
upon the earliest of (i) hand delivery, (ii) the first business day after
sending by reputable overnight delivery service for next-day delivery, (ii) the
third business day after sending by first class United States mail, postage
prepaid, (iv) the time of successful
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facsimile transmission (or in the event the time of receipt of the fax in the
city where the fax is received is not during regular business hours on a
business day, then at the customary hour for the opening of business on the next
business day), or (v) the date actually received by the other party:
(x) If to Beneficiary, to the address of the Beneficiary
appearing on the records of the Trustee.
(y) If to Trustee to: Rhythms NetConnections Inc.
0000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000-0000
FAX No.: (000) 000-0000
(d) COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original but all of which taken
together shall constitute one instrument.
(e) ENFORCEABILITY. If in any judicial proceedings, a court shall
refuse to enforce any of the provisions of this Agreement, then such
unenforceable provision shall be deemed modified or limited so as to effectuate,
to the maximum extent possible, the parties' expressed intent, and if no such
modification or limitation could render it enforceable it shall be eliminated
from this Agreement, and in any event the remaining provisions of this Agreement
shall remain in full force and effect.
(f) ENTIRE AGREEMENT. This Agreement is the entire agreement of the
parties with respect to the subject matter hereof, and supersedes all prior and
contemporaneous negotiations, understandings, arrangements and agreements;
provided, however, that the Amended and Restated Voting Agreement dated
March 12, 1998 among the Company and certain Beneficiaries shall remain in full
force and effect. The Beneficiary represents and warrants that this Agreement
is fully integrated and not in need of parol evidence in order to reflect the
intention of the parties. Moreover, the Beneficiary acknowledges (i) that it
intends the literal words of the Agreement to govern and for all prior and
contemporaneous negotiations, drafts and other extrinsic communications to have
no significance or evidentiary effect and (ii) that this Agreement has been
fully negotiated by the parties and that accordingly it shall be construed
"evenly" and not for or against any party. By signing this Agreement, the
Beneficiary further acknowledges that it has consulted with legal counsel about
the effect of this Section 12(f) and understands its effect.
(g) COMPENSATION OF TRUSTEE; PAYMENT OF COSTS. The Trustee shall not
be entitled to any compensation for his services as Trustee. The Trustee agrees
that Beneficiary shall have no obligation to pay to the Trustee any amount
whatsoever as fees or in respect to the Trustee's costs or expenses related to
this Agreement, except as provided in Sections 5(f) and 12(k). The Trustee will
look solely to the Company for reimbursement of any amounts incurred or expended
by him in connection with his duties under this Agreement, except as provided in
Sections 5(f) and 12(k), and expressly waives any rights which he might
otherwise have to charge the trust corpus for any costs, fees or expenses
related to this
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Agreement, or to withhold any amounts from or set off any amounts against the
shares received by him in trust or any distributions thereon.
(h) AMENDMENT AND MODIFICATION. This Agreement may not be amended,
modified or terminated, except with the written consent of the Trustee, holders
of 55% in interest of the Shares and a Series A Majority; PROVIDED, however,
that the addition of Beneficiaries or Shares after the original date of
execution of this Agreement shall not be considered an amendment or
modification.
(i) GOVERNING LAW. This Agreement shall be governed by the internal
laws of the State of Delaware without regard to principles of conflict of laws.
(j) SECTION 218. This Agreement is intended to create a voting trust
pursuant to and subject to Section 218 of the Delaware General Corporation Law.
If for any reason such voting trust is determined to be invalid or
unenforceable, this Agreement and the relationship of the parties hereunder
shall be deemed to be and shall be reconstituted as a voting agreement under
Section 218(c), and all provisions of this Agreement shall apply to the maximum
extent possible to effectuate the intention of the parties that the substantive
provisions hereof shall govern the voting of Shares by or for the parties
hereto.
(k) COSTS AND EXPENSES. If the Beneficiary unsuccessfully challenges
all or any portion of this Agreement, or if the Trustee successfully sues the
Beneficiary to enforce or confirm this Agreement, the Beneficiary shall be
liable for the other party's or parties' attorneys' fees, costs and expenses.
In no event shall the Trustee be liable for the Beneficiary's attorneys' fees,
costs and expenses.
(l) EQUITABLE REMEDIES. Each of the parties hereby acknowledges and
agrees that the legal remedies available, in the event the covenants and
agreements made in this Agreement are violated, would be inadequate and that any
party shall be entitled, without posting any bond or other security, to
temporary, preliminary and permanent injunctive relief, specific performance and
other equitable remedies in the event of such a violation, in addition to any
other remedies which such party may have at law or in equity.
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IN WITNESS WHEREOF, the Beneficiary has set its hands on the signature page
attached hereto, and the Trustee, in token of its acceptance hereby created, has
hereunto set its hand.
"TRUSTEE"
RHYTHMS NETCONNECTIONS INC.
By: /s/ Xxxxxxxxx X. Xxxxx
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Its:
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"BENEFICIARY"
ENRON COMMUNICATIONS GROUP, INC.
By: /s/ X. X. Xxxxxxxx
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Its:
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AGREED TO:
"COMPANY"
RHYTHMS NETCONNECTIONS INC.
By: /s/ Xxxxxxxxx X. Xxxxx
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Title:
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[SIGNATURE PAGE FOR VOTING TRUST AGREEMENT]
Schedule A
BENEFICIARY
ENRON COMMUNICATIONS GROUP, INC.
000 Xxxxxxxxx Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Schedule A
Exhibit A
VOTING TRUST CERTIFICATE
RHYTHMS NETCONNECTIONS INC.
A Delaware Corporation
Voting Trust Certificate
Certificate
No. ________ _________ shares of Series B Preferred Stock
This certifies that ________________________________________ (or his or
its predecessor in interest) has deposited for transfer in trust to the Trustee
of the Rhythms NetConnections Inc. Voting Trust ___________ shares of Series B
Preferred Stock, par value $0.001 per share, of Rhythms NetConnections Inc., a
Delaware corporation, under a Voting Trust Agreement, dated as of March 12, 1998
by and between Enron Communications Group, Inc., a stockholder of Rhythms
NetConnections Inc., and Rhythms NetConnections Inc., as Trustee under said
Voting Trust Agreement. This certificate and the interest represented hereby
may be transferred only if permitted under the terms of said Voting Trust
Agreement and is transferable only on the books of the Trustee upon the
execution of said Voting Trust Agreement by such transferee and the presentation
and surrender of this certificate duly endorsed for transfer. The holder of
this certificate takes the same subject to all the terms and conditions of said
Voting Trust Agreement, is entitled to the rights and benefits thereof and is
subject to the obligations thereof. A copy of said Voting Trust Agreement may
be obtained from the undersigned Trustee.
IN WITNESS WHEREOF, the Trustee has caused this certificate to be signed
this 12th day of March, 1998.
RHYTHMS NETCONNECTIONS INC., TRUSTEE
By:
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Title:
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