EXHIBIT 9.4
VOTING TRUST AGREEMENT
THIS VOTING TRUST AGREEMENT (this "Agreement"), dated as of March
3, 1999, by and between MCI WorldCom Venture Fund, 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 C Preferred Stock, $0.001 par value ("Series C 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 limited purpose of voting in elections on certain matters as described
herein all of the shares of Series C 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 limited purpose of voting on
certain 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
the 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 C PREFERRED. Only with respect
to a proposal for a Corporate Transaction (defined below), and only to the
extent such Corporate Transaction is submitted for a stockholder vote, in
which the Series C Preferred Stock has class or series voting rights (a
"Stockholder Proposal"), the Trustee shall vote the Trustee Shares for or
against such Stockholder Proposal, in the same proportion as a majority of
the then outstanding shares of Series A Preferred Stock and Series B
Preferred Stock, voting as a single class (the "Series A and B 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 or (B) the
issuance of equity securities in connection with a corporate partnering or
similar transaction.
(ii) OTHER STOCKHOLDER MATTERS. With respect to any
other proposal submitted for stockholder vote, the Trustee shall vote the
Trustee Shares in the manner directed (whether for, against or to abstain) by
the Beneficiary hereunder for whom the Trustee Shares are held; including,
without limitation, NOTWITHSTANDING subsection (i) above, with respect to any
proposal submitted for stockholder vote in connection with the following:
1. any action that would materially and adversely
alter the rights, preferences or privileges of the
Series C Preferred Stock as a separate series in a
manner that is dissimilar and disproportionate
relative to the manner in which the rights,
preferences or privileges of the Series A or B
Preferred Stock are altered; or
2. authorization of additional shares of Series C
Preferred Stock; or
3. any action that would alter the right of the
holders of the then outstanding shares of Series C
Preferred Stock to elect one (1) director of the
corporation pursuant to Article IV(B)4(b)(iii) of
the Restated Certificate of Incorporation; or
4. amendment of Article IV(B)5(a) of the Restated
Certificate of Incorporation.
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(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 the Trustee and any other written
material addressing such proposal provided to stockholders or to the 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 the
Trustee. For all matters covered by Section 3(a)(ii) above, the Trustee
shall request instructions from such holders as soon as reasonably 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 the Trustee on the day prior to the deadline for
voting, the percentage of the Series A Preferred Stock and Series B 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 Series B Preferred Stock, voting as a single
class, and in the same percentage for, against and abstain as the vote of the
Series A Preferred Stock and Series B Preferred Stock voting as a single
class.
(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) THE 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.
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(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 any Trustee, a successor shall be appointed by the
Beneficiary, which successor shall be 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, Series B
Preferred Stock and Series C 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 the 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 the
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) THE 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
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(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 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 9 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 3, 2009; (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
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result of an Excluded Merger or Excluded Sale). Notwithstanding the
foregoing, this Agreement may (before a Qualified Public Offering has
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 3, 2009). 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 the 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. 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 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.
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9. 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.
10. 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.
11. 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, (iii) the third business day after sending by first class
United States mail, postage prepaid, (iv) the time of successful 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.
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(y) If to the 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. 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 11(f) and understands its
effect.
(g) COMPENSATION OF THE TRUSTEE; PAYMENT OF COSTS. The Trustee
shall not be entitled to any compensation for its services as the 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
11(k). The Trustee will look solely to the Company for reimbursement of any
amounts incurred or expended by it in connection with its duties under this
Agreement, except as provided in Sections 5(f) and 11(k), and expressly
waives any rights which it might otherwise have to charge the trust corpus
for any costs, fees or expenses related to this Agreement, or to withhold any
amounts from or set off any amounts against the shares received by it 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 a majority in interest of the Shares and a Series A and B
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.
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(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/ Xxxxx Xxxxxxxx
---------------------------------
Title: CFO
------------------------------
"BENEFICIARY"
MCI WORLDCOM VENTURE FUND, INC.
By: /s/ Xxxxx Xxxxx
---------------------------------
Title: President
------------------------------
AGREED TO:
"COMPANY"
RHYTHMS NETCONNECTIONS INC.
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Title:
------------------------------
[SIGNATURE PAGE FOR VOTING TRUST AGREEMENT]
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Schedule A
BENEFICIARY
MCI WORLDCOM VENTURE FUND, INC.
0000 Xxxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
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Exhibit A
VOTING TRUST CERTIFICATE
------------------------
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RHYTHMS NETCONNECTIONS INC.
A Delaware Corporation
Voting Trust Certificate
Certificate
No. ________ 3,731,410 shares of Series C Preferred Stock
This certifies that MCI WorldCom Venture Fund, Inc. (or its
predecessor in interest) has deposited for transfer in trust to the Trustee
of the Rhythms NetConnections Inc. Voting Trust Three Million Seven Hundred
Thirty-One Thousand Four Hundred Ten (3,731,410) shares of Series C Preferred
Stock, par value $0.001 per share, of Rhythms NetConnections Inc., a Delaware
corporation, under a Voting Trust Agreement, dated as of ________, 1999 by
and between MCI WorldCom Venture Fund, 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 ___ day of ________, 1999.
RHYTHMS NETCONNECTIONS INC., TRUSTEE
By:____________________________________
Title:_________________________________
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