-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NhtK+oEUy4+d0DqWRH8GSHT+RhIZTfcHLKiK1pcW775DqCP5AU0Ds1gLZsHpOFK3 TPQs0GEXvQEaKkSoY2BmAg== 0000950131-99-002284.txt : 19990415 0000950131-99-002284.hdr.sgml : 19990415 ACCESSION NUMBER: 0000950131-99-002284 CONFORMED SUBMISSION TYPE: S-8 PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990414 EFFECTIVENESS DATE: 19990414 FILER: COMPANY DATA: COMPANY CONFORMED NAME: IFX CORP CENTRAL INDEX KEY: 0000792861 STANDARD INDUSTRIAL CLASSIFICATION: SECURITY & COMMODITY BROKERS, DEALERS, EXCHANGES & SERVICES [6200] IRS NUMBER: 363399452 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: S-8 SEC ACT: SEC FILE NUMBER: 333-76257 FILM NUMBER: 99593275 BUSINESS ADDRESS: STREET 1: 200 W ADAMS ST STREET 2: STE 1460 CITY: CHICAGO STATE: IL ZIP: 60606 BUSINESS PHONE: 3124199530 MAIL ADDRESS: STREET 1: 200 WEST ADAMS ST STE 1460 CITY: CHICAGO STATE: IL ZIP: 60606 FORMER COMPANY: FORMER CONFORMED NAME: CARL JACK 312 FUTURES INC DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: 312 FUTURES INC DATE OF NAME CHANGE: 19860916 S-8 1 FORM S-8 As filed with the Securities and Exchange Commission on April 14, 1999 Registration No. 333- ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 -------------------- FORM S-8 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 -------------------- IFX CORPORATION (Exact name of registrant as specified in its charter) -------------------- Delaware 36-3399452 - ------------------------------- -------------------- (State or other jurisdiction of (I.R.S. Employee incorporation or organization) Identification No.) 200 West Adams Street, Suite 1460 Chicago, Illinois 60606 (312) 419-9530 -------------------- (Address, including zip code, and telephone number, including area code, of registrant's executive offices) -------------------- IFX CORPORATION 1998 STOCK OPTION AND INCENTIVE PLAN ---------------------------------------------------- (Full title of the plan) Joel M. Eidelstein IFX Corporation 200 West Adams Street, Suite 1460 Chicago, Illinois 60606 (312) 419-9530 (Name, address, including zip code, and telephone number, including area code, of agent for service) -------------------- CALCULATION OF REGISTRATION FEE
========================================================================================= Proposed Maximum Aggregate Amount of Title of Securities to be Registered Offering Price Registration Fee - ----------------------------------------------------------------------------------------- Common Stock, par value $.02 per share $8,746,875(1) $ 2,432 =========================================================================================
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rules 457(c) and 457(h) under the Securities Act of 1933, as amended, on the basis of the average high and low sales prices of the Company's Common Stock as reported on the Nasdaq SmallCap Market on April 8, 1999. Does not reflect an indeterminate number of shares that may be issued as a result of anti-dilution provisions contained in the Plan, which shares shall be covered by this registration statement. ================================================================================ PART II ------- INFORMATION REQUIRED IN THE REGISTRATION STATEMENT ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE The following documents that heretofore have been filed by IFX Corporation (the "Company") with the Securities and Exchange Commission (the "Commission") are hereby incorporated by reference into this registration statement: 1. Annual Report of Form 10-K for the fiscal year ended June 30, 1998, filed September 17, 1998; 2. Quarterly Report on Form 10-Q for the quarter ended October 31, 1998, filed November 16, 1998; 3. Current Report on Form 8-K, filed November 25, 1998; and 4. Quarterly Report on Form 10-Q for the quarter ended December 31, 1998, filed February 11, 1999. All documents filed by the registrant pursuant to Sections 13, 14 and 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange Act") subsequent to the date of this registration statement and before the registrant files a post-effective amendment indicating that all shares of Common Stock being offered hereby have been sold or that deregisters all shares of Common Stock then remaining unsold shall be deemed incorporated by reference herein and to be a part hereof from the date of the filing of such documents. Any statement contained in a document incorporated herein by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document that is incorporated herein by reference modifies or supersedes such earlier incorporated statement. ITEM 4. DESCRIPTION OF SECURITIES Pursuant to the Company's Certificate of Incorporation, as amended (the "Certificate"), the Company is authorized to issue an aggregate of 150,000,000 shares of Common Stock, par value $.02 per share. As of December 31, 1998, there were 6,655,539 shares of Common Stock outstanding. As of April 6, 1999, there were 894 holders of record of Common Stock. The Common Stock is listed on the Nasdaq SmallCap Market under the symbol "FUTR." The holders of outstanding shares of Common Stock are entitled to receive dividends out of assets legally available therefor, if and when declared by the Board of Directors and in such amounts as the Board of Directors may from time to time determine. The shares of Common -2- Stock are neither redeemable nor convertible and the holders thereof have no preemptive or subscription rights to purchase any securities of the Company. Upon liquidation, dissolution or winding up of the Company, the holders of Common Stock are entitled to receive, pro rata, the assets of the Company that are legally available for distribution, after payment of all debts and other liabilities of the Company. Each outstanding share of Common Stock is entitled to one vote on all matters submitted to a vote of shareholders. There is no cumulative voting in the election of directors. DELAWARE STATUTORY BUSINESS COMBINATION PROVISION Section 203 of the Delaware General Corporation Law (the "DGCL") is applicable to corporate takeovers in Delaware. Subject to certain exceptions set forth therein, Section 203 of the DGCL provides that a corporation shall not engage in any business combination with any "interested shareholder" for a three-year period following the date that such shareholder becomes an interested shareholder unless (a) prior to such date, the board of directors of the corporation approved either the business combination or the transaction that resulted in the shareholder becoming an interested shareholder, (b) upon consummation of the transaction that resulted in the shareholder becoming an interested shareholder, the interested shareholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding certain specified shares) or (c) on or after such date, the business combination is approved by the board of directors of the corporation and by the affirmative vote of at least 66 2/3% of the outstanding voting stock that is not owned by the interested shareholder. Except as specified therein, an "interested shareholder" is defined to include any person that is (i) the owner of 15% or more of the outstanding voting stock of the corporation, (ii) an affiliate or associate of that corporation who or which and owned 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the relevant date, and (iii) an affiliate or associate of the persons described in the foregoing clauses (i) or (ii). In its Certificate, the Company has elected not to be governed by the restrictions imposed by Section 203 of the DGCL. Accordingly, in the event the Company becomes the subject of a takeover or third party acquisition attempt, it may not be able to avail itself of the benefits afforded by Section 203 of the DGCL. TRANSFER AGENT AND REGISTRAR The Transfer Agent and Registrar for the Common Stock is Harris Trust and Savings Bank. ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL Not applicable. -3- ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under the Delaware General Corporation Law (the "DGCL"), a corporation has the authority to indemnify any person who was or is a party or is threatened to be made a party to an action (other than an action by or in the right of the corporation) by reason of such person's service as a director of officer of the corporation, or such person's service, at the corporation's request, as a director, officer, employee or agent of another corporation or other enterprise, against amounts paid and expenses incurred in connection with the defense or settlement of such action, if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the corporation's best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that such person's conduct was unlawful. If such person has been judged liable to the corporation in any action or proceeding brought by or in the right of the corporation, however, indemnification is only permitted to the extent that the adjudicating court (or the court in which the action was brought) determines, despite the adjudication of liability, that such indemnification is proper. As permitted by the DGCL, the by-laws of the Company authorize the Company to indemnify any officer, director and employee of the Company against amounts paid or expenses incurred in connection with any action, suit or proceeding (other than any such action by or in the right of the corporation) to which such person is or is threatened to be made a party as a result of such position if the Board of Directors or shareholders of or independent legal counsel to, the Company, in a written opinion, determine that indemnification is proper. The by- laws also limit the personal liability of directors for breach of fiduciary duty, other than for breach of duty of loyalty, intentional misconduct or violation of law, acts under Section 174 of the DGCL or with respect to any transaction in which the director derives an improper personal benefit. ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED Not applicable. ITEM 8. EXHIBITS Exhibit No. Description - ------- ----------- 4.1 IFX Corporation 1998 Stock Option and Incentive Plan 5.1 Opinion of Neal, Gerber & Eisenberg 23.1 Consent of Neal, Gerber & Eisenberg (included in Exhibit 5.1 to this Registration Statement) 23.2 Consent of Arthur Andersen LLP 24.1 Powers of Attorney (included in the signature page of this registration statement) -4- ITEM 9. UNDERTAKINGS. The undersigned registrant hereby undertakes: 1. to file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) to include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended (the "Securities Act"); (ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a twenty percent (20%) change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement ; provided, however, that paragraphs 1(i) and 1(ii) above do not apply if the registration statement is on Form S-3, Form S-8 or Form F-3, and the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in this registration statement; 2. that, for the purpose of determining any liability under the Securities Act, each post-effective amendment to this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof; 3. to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; and 4. that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Sections 13(a) or 15(d) of the Exchange Act that is incorporated by reference in this registration statement shall be deemed to be a new registration -5- statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. SIGNATURES The Registrant. Pursuant to the requirements of the Securities Act of 1933 -------------- as amended, the registrant, IFX Corporation, certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement on Form S-8 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Chicago, State of Illinois, on April 13, 1999. IFX CORPORATION By: /s/ Joel M. Eidelstein ------------------------------ Joel M. Eidelstein, President KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Joel M. Eidelstein and Colleen M. Downes, and each of them, his/her true and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, to sign, execute and file with the Securities and Exchange Commission (or any other governmental or regulatory authority), for us and in our names in the capacities indicated below, this registration statement on Form S-8 (including all amendments thereto) with all exhibits and any and all documents required to be filed with respect thereto, granting unto said attorneys-in-fact and agents and each of them, full power and authority to do and to perform each and every act and thing necessary and/or desirable to be done in and about the premises in order to effectuate the same as fully to all intents and purposes as he himself/she herself might -6- or could do if personally present, hereby ratifying and confirming all that said attorneys-in-fact and agents, or any of them, may lawfully do or cause to be done by virtue hereof. PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, AS AMENDED, THIS REGISTRATION STATEMENT ON FORM S-8 HAS BEEN SIGNED ON APRIL 13, 1999 BY THE FOLLOWING PERSONS IN THE CAPACITIES INDICATED: SIGNATURE TITLE - --------- ----- /s/ Joel M. Eidelstein President and Director - ------------------------- Joel M. Eidelstein (Principal Executive Officer) /s/ Colleen M. Downes Chief Financial Officer, Secretary and Director - ------------------------ Colleen M. Downes (Principal Financial and Accounting Officer) /s/ George A. Myers Director - ---------------------- George A. Myers /s/ Zalman Lekach Director - -------------------- Zalman Lekach /s/ Joseph Matalon Director - --------------------- Joseph Matalon -7- EX-4.1 2 1998 STOCK OPTION AND INCENTIVE PLAN EXHIBIT 4.1 IFX CORPORATION STOCK OPTION AND INCENTIVE PLAN 1. Preamble. -------- IFX Corporation, a Delaware corporation (the "Company"), hereby establishes the IFX Corporation Stock Option and Incentive Plan (the "Plan") as a means whereby the Company may, through awards of (i) incentive stock options within the meaning of section 422 of the Code (as herein defined), (ii) stock appreciation rights, (iii) non-qualified stock options, (iv) restricted stock, and (v) phantom stock: (a) provide employees of the Company and its subsidiaries with additional incentive to promote the success of the Company's and its subsidiaries' businesses and encourage such employees to remain in the employ of the Company and its subsidiaries; (b) provide incentive for potential employees to accept employment with the Company; (c) provide Directors of the Company who are not otherwise employees of the Company with additional incentive to promote the success of the Company's business; and (d) provide consultants and other independent contractors who provide services to the Company with additional incentive to promote the success of the Company's business. The provisions of this Plan do not apply to or affect any option, stock appreciation right, or stock heretofore or hereafter granted under any other stock plan of the Company or any subsidiary, and all such options, stock appreciation right or stock continue to be governed by and subject to the applicable provisions of the plan or agreement under which they were granted. 2. Definitions. ----------- 2.01 "Board" or "Board of Directors" means the board of directors of the ----- ------------------ Company. 2.02 "Cause" means, as determined in the sole discretion of the Board, a ----- Participant's (a) commission of a felony; (b) material or repeated dishonesty or misrepresentation involving the Company or any Subsidiary; (c) serious misconduct in the performance or non-performance of Participant's responsibilities as an employee, Officer, Director, consultant or independent contractor; (d) violation of a material condition of employment; (e) unauthorized use of trade secrets or confidential information; or (f) aiding a competitor of the Company or any Subsidiary. 2.03 "Code" means the Internal Revenue Code of 1986, as it exists now and ---- as it may be amended from time to time. 2.04 "Committee" means the committee comprised of two or more Directors --------- appointed by the Board to administer the Plan. 2.05 "Common Stock" means the common stock of the Company, $.02 par value ------------ per share. 2.06 "Company" means IFX Corporation, a Delaware corporation, and any ------- successor thereto. 2.07 "Director" means a member of the Board. -------- 2.08 "Exchange Act" means the Securities Exchange Act of 1934, as it ------------ exists now or from time to time may hereafter be amended. 2.09 "Fair Market Value" means for the relevant day: ----------------- (a) If shares of Common Stock are listed or admitted to unlisted trading privileges on any national or regional securities exchange, the last reported sale price, regular way, on the composite tape of that exchange on the day Fair Market Value is to be determined; (b) If the Common Stock is not listed or admitted to unlisted trading privileges as provided in paragraph (a), and if sales prices for shares of Common Stock are reported by the National Association of Securities Dealers, Inc. Automated Quotations, Inc. Small Cap Market System ("Nasdaq System"), then the last sale price for Common Stock reported as of the close of business on the day Fair Market Value is to be determined, or if no such sale takes place on that day, the average of the high bid and low asked prices so reported and, if Common Stock is not traded on that day, the next preceding day on which such stock was traded; or (c) If trading of the Common Stock is not reported by the Nasdaq System or on a stock exchange, Fair Market Value will be determined by the Committee in its discretion based upon the best available data. 2.10 "ISO" means incentive stock options within the meaning of Section 422 --- of the Code. 2.11 "Naked SAR" means a SAR issued not in connection with an ISO or NSO. --------- 2.12 "NSO" means non-qualified stock options, which are not intended to --- qualify under Section 422 of the Code. -2- 2.13 "Option" means the right of a Participant, whether granted as an ISO ------ or an NSO, to purchase a specified number of shares of Common Stock, subject to the terms and conditions of the Plan. 2.14 "Option Date" means the date upon which an Option, SAR, Restricted ----------- Stock or Phantom Stock is awarded to a Participant under the Plan. 2.15 "Option Price" means the price per share at which an Option may be ------------ exercised. 2.16 "Participant" means an individual to whom an Option, SAR, Phantom ----------- Stock or Restricted Stock has been granted under the Plan. 2.17 "Phantom Stock" means a hypothetical share of Common Stock issued as ------------- phantom stock under the Plan. 2.18 "Plan" means the IFX Corporation Stock Option Plan, as set forth ---- herein and as from time to time amended. 2.19 "Restricted Stock" means Common Stock awarded to a Participant ---------------- pursuant to this Plan and subject to the restrictions contained in Section 9. 2.20 "SAR" means a stock appreciation right. A SAR may be a Naked SAR or --- a Tandem SAR. 2.21 "Securities Act" means the Securities Act of 1933, as it exists now -------------- or from time to time may hereinafter be amended. 2.22 "Subsidiary" means any corporation or other entity of which the ---------- majority voting power or equity interest is owned directly or indirectly by the Company. 2.23 "Tandem SAR" means a SAR associated with and issued in connection ---------- with an ISO or NSO. 2.24 Rules of Construction. --------------------- (a) Governing Law. The construction and operation of this Plan are ------------- governed by the laws of the State of Delaware. (b) Undefined Terms. Unless the context requires another meaning, --------------- any term not specifically defined in this Plan has the meaning given to it by the Code. (c) Headings. All headings in this Plan are for reference only and -------- are not to be utilized in construing the Plan. -3- (d) Gender. Unless clearly appropriate, all nouns of whatever gender ------ refer indifferently to persons of any gender. (e) Singular and Plural. Unless clearly inappropriate, singular ------------------- terms refer also to the plural and vice versa. ---- ----- (f) Severability. If any provision of this Plan is determined to be ------------ illegal or invalid for any reason, the remaining provisions shall continue in full force and effect and shall be construed and enforced as if the illegal or invalid provision did not exist, unless the continuance of the Plan in such circumstances is not consistent with its purposes. (g) Termination of Employment. For all purposes of this Plan, an ------------------------- employee will have terminated employment with the Company when the employee's employment relationship with the Company and all of its subsidiaries is terminated. Additionally, with respect to consultants and independent contractors, for all purposes of the Plan such consultant's or independent contractor's "employment with the Company" shall be considered terminated upon the termination of any consulting or independent contractor agreement, or when the consultant or independent contractor no longer performs any services for the Company. 3. Stock Subject to the Plan. ------------------------- Except as otherwise provided in Section 13, the aggregate number of shares of Common Stock that may be issued under Options or as Restricted Stock under this Plan may not exceed 900,000 shares of Common Stock. Reserved shares may be either authorized but unissued shares or treasury shares, in the Board's discretion. If any awards hereunder shall terminate or expire, as to any number of shares, new Options, and Restricted Stock may thereafter be awarded with respect to such shares. Except as otherwise provided in Section 13, no Participant may be granted awards under the Plan in any calendar year in respect of more than 300,000 shares of Common Stock. 4. Administration. -------------- The Plan shall be administered by the Committee. In addition to any other powers set forth in this Plan, the Committee has the exclusive authority: (a) to construe and interpret the Plan, and to remedy any ambiguities or inconsistencies therein; (b) to establish, amend and rescind appropriate rules and regulations relating to the Plan; -4- (c) subject to the express provisions of the Plan, to determine the individuals who will receive awards of Options, Restricted Stock, Phantom Stock and/or SARs, the times when they will receive them, the number of shares to be subject to each award and the Option Price, payment terms, payment method, and expiration date applicable to each award; (d) to contest on behalf of the Company or Participants, at the expense of the Company, any ruling or decision on any matter relating to the Plan or to any awards of ISOs, NSOs, Restricted Stock, Phantom Stock and/or SARs; (e) generally, to administer the Plan, and to take all such steps and make all such determinations in connection with the Plan and the awards of ISOs, NSOs, Restricted Stock, Phantom Stock and/or SARs granted thereunder as it may deem necessary or advisable; (f) to determine the form in which payment of a SAR or a Phantom Stock award granted hereunder will be made (i.e., cash, Common Stock or a combination thereof) or to approve a participant's election to receive cash in whole or in part in settlement of the SAR or Phantom Stock award; (g) to determine the form in which tax withholding under Section 16 of this Plan will be made; and (h) to amend the Plan or any Option, Restricted Stock, Phantom Stock or SAR granted or awarded hereunder as may be necessary in order for any business combination involving the Company to qualify for pooling-of- interest treatment under APB No. 16. 5. Eligible Participants. --------------------- Subject to the provisions of the Plan, the Committee shall determine from time to time (a) those employees, officers, Directors, consultants and independent contractors of the Company or a Subsidiary, and non-employees and non-officers to whom the Company or any Subsidiary has extended an offer of employment, who shall be designated as Participants, and (b) the number of Options, SARs, Restricted Stock, and Phantom Stock, or any combination thereof, to be awarded to each such Participant; provided, however, that no ISOs or -------- ------- Tandem SARs granted with respect to ISOs shall be awarded under the Plan more than ten years after the date this Plan is adopted by the Board. In addition, no ISOs may be awarded to a Participant who is not an employee of the Company or a Subsidiary. 6. Terms and Conditions of Incentive Stock Options. ----------------------------------------------- The Committee, in its discretion, may grant ISOs to any Participant under the Plan; provided, however, that no ISOs may be granted to a Director or other -------- ------- Participant who is not -5- an employee of the Company or a Subsidiary. Each ISO shall be evidenced by an agreement between the Company and the Participant in a form approved by the Committee. Unless the Committee, in its discretion, determines otherwise, each ISO agreement shall be subject to the following terms and conditions and to such other terms and conditions as the Committee may deem appropriate; (a) Option Period. Each ISO will expire as of the earliest of: ------------- (i) the date on which it is forfeited under the provisions of Section 12; (ii) 10 years (or five years as specified in Section 6(e)) from the Option Date; (iii) three months after the Participant's termination of employment for any reason other than death; or (iv) six months after the Participant's death. (b) Option Price. Subject to the provisions of Section 6(e), the ------------ Option Price per share shall be determined by the Committee at the time any ISO is granted, and shall not be less than the Fair Market Value of the Common Stock subject to the ISO on the Option Date. (c) Other Option Provisions. The form of ISO authorized by the Plan ----------------------- may contain such other provisions as the Committee may, from time to time, determine; provided, however, that such other provisions may not be -------- ------- inconsistent with any requirements imposed on qualified stock options under Section 422 of the Code. (d) Limitations on Awards. The aggregate Fair Market Value, --------------------- determined as of the Option Date, of Common Stock with respect to which ISOs are exercisable by a Participant for the first time during any calendar year under all ISO plans of the Company and any Subsidiary shall not exceed $100,000. (e) Awards to Certain Stockholders. Notwithstanding Sections 6(a) and ------------------------------ 6(b) hereof, if an ISO is granted to a Participant who owns stock representing more than 10% of the voting power of all classes of stock of the Company or a Subsidiary (as determined under the Code), the exercise period specified in the ISO agreement for which the ISO thereunder is granted shall not exceed five years from the Option Date and the Option Price shall be at least 110% of the Fair Market Value (as of the Option Date) of the Common Stock subject to the ISO. -6- 7. Terms and Conditions of Non-Qualified Stock Option. -------------------------------------------------- The Committee, in its discretion, may grant NSOs to any Participant under the Plan. Each NSO shall be evidenced by an agreement between the Company and the Participant in a form approved by the Committee. Unless the Committee, in its discretion, determines otherwise, each NSO agreement shall be subject to the following terms and conditions and to such other terms and conditions as the Committee may deem appropriate: (a) Option Period. Each NSO will expire as of the earliest of: ------------- (i) the date on which it is forfeited under the provisions of Section 12; (ii) the date three months after the Participant's termination of employment for any reason other than death; or (iii) the date six months after the Participant's death. (b) Option Price. At the time when the NSO is granted, the Committee ------------ will fix the Option Price. The Option Price may be greater than, less than, or equal to Fair Market Value on the Option Date, as determined in the sole discretion of the Committee. (c) Other Option Provisions. The form of NSO authorized by the Plan ----------------------- may contain such other provisions as the Committee may from time to time determine. 8. Terms and Conditions of Stock Appreciation Rights. ------------------------------------------------- The Committee may, in its discretion, grant a SAR to any Participant under the Plan. Each SAR shall be evidenced by an agreement between the Company and the Participant, in a form approved by the Committee, and may be a Naked SAR or a Tandem SAR. Unless the Committee, in its discretion, determines otherwise, each SAR awarded to Participants under the Plan shall be subject to the following terms and conditions and to such other terms and conditions as the Committee may deem appropriate: (a) Tandem SARs. Tandem SARs shall terminate on the same date as the ----------- related ISO or NSO. A Tandem SAR shall be exercisable only if the Fair Market Value of a share of Common Stock on the date of surrender exceeds the Option Price for the related Option, and then shall be exercisable to the extent, and only to the extent, that the related Option is exercisable. A Tandem SAR shall entitle the Participant to whom it is granted the right to elect, so long as such Tandem SAR is exercisable and subject to such limitations as the Committee shall have imposed, to surrender any then exercisable portion of his related Option, in whole or in part, and receive from the Company in exchange, without any payment of cash (except for applicable employee withholding taxes), that number of shares of Common Stock having an aggregate Fair Market Value on the date of surrender equal to the product of (i) the excess of the Fair Market Value of a share of Common Stock on the date of surrender over the per share -7- Option Price, and (ii) the number of shares of Common Stock subject to such Option or portion thereof which is surrendered. Any Option or portion thereof which is surrendered shall no longer be exercisable. The Committee, in its sole discretion, may allow the Company to settle all or part of the Company's obligation arising out of the exercise of a Tandem SAR by the payment of cash equal to the aggregate Fair Market Value of the shares of Common Stock which the Company would otherwise be obligated to deliver. (b) Naked SARs. Naked SARs shall terminate as provided in the ---------- Participant's SAR agreement. The Committee may at the time of granting any Naked SAR add such conditions and limitations to the Naked SAR as it shall deem advisable, including but not limited to, limitations on the period within which the Naked SAR shall be exercisable and the maximum amount of appreciation to be recognized with regard to such Naked SAR. (c) Other Conditions. If a Participant is subject to Section 16(a) ---------------- and Section 16(b) of the Exchange Act, the Committee may at any time add such additional conditions and limitations to such SAR which the Committee, in its discretion, deems necessary or desirable in order to comply with Section 16(a) or Section 16(b) of the Exchange Act and the rules and regulations issued thereunder, or in order to obtain any exemption therefrom. 9. Terms and Conditions of Restricted Stock Awards. ----------------------------------------------- The Committee, in its discretion, may grant Restricted Stock to any Participant under the Plan. Each grant of Restricted Stock shall be evidenced by an agreement between the Company and the Participant in a form approved by the Committee. Unless the Committee, in its discretion, determines otherwise, all shares of Common Stock awarded to Participants under the Plan as Restricted Stock shall be subject to the following terms and conditions and to such other terms and conditions as the Committee may deem appropriate: (a) Restricted Period. Shares of Restricted Stock awarded to ----------------- Participants may not be sold, transferred, pledged or otherwise encumbered before they vest. Subject to the provisions of subparagraphs (b) and (c) below and any other restrictions imposed by law, certificates evidencing shares of Restricted Stock that vest will be transferred to the Participant or, in the event of his death, to the beneficiary or beneficiaries designated by writing filed by the Participant with the Committee for such purpose or, if none, to his estate. (b) Forfeitures. A Participant shall forfeit all unpaid accumulated ----------- dividends and all shares of Restricted Stock which have not vested prior to the date that his employment with the Company is terminated for any reason. (c) Certificates Deposited With Company. Each certificate issued in ----------------------------------- respect of shares of Restricted Stock awarded under the Plan shall be registered in the name of -8- the Participant and deposited with the Company. Each such certificate shall bear the following (or a similar) legend: "The transferability of this certificate and the shares of stock represented hereby are subject to the terms and conditions (including forfeiture) relating to Restricted Stock contained in the IFX Corporation Stock Option Plan and an agreement entered into between the registered owner and IFX Corporation. Copies of such Plan and agreement are on file at the principal office of IFX Corporation." (d) Stockholder Rights. Subject to the foregoing restrictions, each ------------------ Participant shall have all the rights of a stockholder with respect to his shares of Restricted Stock including, but not limited to, the right to vote such shares. (e) Dividends. On each Common Stock dividend payment date, each --------- Participant shall receive an amount equal to the dividend paid on that date on a share of Common Stock, multiplied by his number of shares of Restricted Stock. 10. Terms and Conditions of Phantom Stock. ------------------------------------- The Committee may, in its discretion, award Phantom Stock to any Participant under the Plan. Each award of Phantom Stock shall be evidenced by an agreement between the Company and the Participant. The Committee may at the time of awarding any Phantom Stock add such additional conditions and limitations to the Phantom Stock as it shall deem advisable, including, but not limited to, the right for Participants to receive dividends equivalent to those paid on Common Stock, limitations on the period or periods within which the Phantom Stock may be surrendered, and the maximum amount of appreciation to be recognized with regard to such Phantom Stock. An award of Phantom Stock shall entitle the Participant to whom it is awarded the right to elect, so long as such Phantom Stock is vested and subject to such limitations as the Committee shall have imposed, to surrender any then vested portion of the Phantom Stock, in whole or in part, and receive from the Company in exchange therefor the Fair Market Value on the date of surrender of the Common Stock to which the surrendered Phantom Stock relates in cash or in shares of Common Stock as the Committee may determine. If a Participant is subject to Section 16(a) and Section 16(b) of the Exchange Act, the Committee may at any time add such additional conditions and limitations to such Phantom Stock which, in its discretion, the Committee deems necessary or desirable in order to comply with Section 16(a) or Section 16(b) of the Exchange Act and the rules and regulations promulgated thereunder, or in order to obtain any exemption therefrom. -9- 11. Manner of Exercise of Options. ----------------------------- To exercise an Option in whole or in part, a Participant, any permitted transferree of a Participant or, after his death, a Participant's executor or administrator must give written notice to the Committee, stating the number of shares to which he intends to exercise the Option. The Company will issue the shares with respect to which the Option is exercised upon payment in full of the Option Price. The Option Price may be paid (i) in cash, (ii) in shares of Common Stock having an aggregate Fair Market Value, as determined on the date of delivery, equal to the Option Price, or (iii) by delivery of irrevocable instructions to a broker to promptly deliver to the Company the amount of sale or loan proceeds necessary to pay for all Common Stock acquired through such exercise and any tax withholding obligations resulting from such exercise. The Option Price may be paid in shares of Common Stock which were received by the Participant upon the exercise of one or more Options. The Option Price may be paid in shares of Common Stock which were received by the Participant as an award of Restricted Stock under the Plan. The Option Price may be paid by surrender of Tandem SARs equal to the Option Price. 12. Vesting. ------- (a) A Participant may not exercise an Option, surrender a SAR or Phantom Stock or transfer, pledge or dispose of any Restricted Stock until it has become vested. The portion of an Option, SAR or Phantom Stock award or Restricted Stock that is vested depends upon the period that has elapsed since the Option Date. Unless the Committee establishes a different vesting schedule at the time an Option is granted or the Restricted Stock, SAR or Phantom Stock is awarded, all Options granted under this Plan, Restricted Stock, SARs and Phantom Stock awarded under this Plan shall vest according to the following schedule: Period Elapsed Cumulative Vested Percentage -------------------------------- ---------------------------- First Anniversary of Option Date 25% Second Anniversary of Option Date 50% Third Anniversary of Option Date 75% Fourth Anniversary of Option Date 100% Except as provided below, if a Participant's employment with the Company or its Subsidiaries is terminated, for any reason, such Participant automatically forfeits any Options, Restricted Stock, SARs and/or Phantom Stock that are not yet vested. A transfer of employment from the Company to a Subsidiary or affiliate, or vice versa, is not a termination of employment for purposes of ---- ----- this Plan. Unless the Committee in its sole discretion specifically waives the application of this sentence, then notwithstanding the vesting schedule contained herein or in the Participant's agreement, if the Participant's employment, or if a Director, his membership on the Board, is terminated for Cause, all Options, SARs, Restricted Stock and/or Phantom Stock granted or awarded to the Participant will be immediately cancelled and forfeited by the Participant upon delivery to him of notice of such termination. -10- (b) If it determines that special circumstances exist, the Committee, in its sole discretion, may accelerate the time in which an award under the Plan vests, even if, under its existing terms, such award would not then be exercisable. 13. Adjustments to Reflect Changes in Capital Structure. --------------------------------------------------- If there is any change in the corporate structure or shares of the Company, the Board of Directors may, in its discretion, make any adjustments necessary to prevent accretion, or to protect against dilution, in the number and kind of shares authorized by the Plan and, with respect to outstanding Options, Restricted Stock, Phantom Stock and/or SARs, in the number and kind of shares covered thereby and in the applicable Option Price; provided, however, no -------- ------- adjustment will be made for the issuance of preferred stock or the conversion of convertible preferred stock. For the purpose of this Section 13, a change in the corporate structure or shares of the Company includes, without limitation, any change resulting from a recapitalization, stock split, stock dividend, consolidation, rights offering, spin-off, reorganization, or liquidation and any transaction in which shares of Common Stock are changed into or exchanged for a different number or kind of shares of stock or other securities of the Company or another corporation. 14. Non-Transferability of Options, SARs and Phantom Stock. ------------------------------------------------------ The Options and SARs granted or Phantom Stock awarded under the Plan are not transferable, voluntarily or involuntarily, other than by will or the laws of descent and distribution, or to the extent permissible under Section 422 of the Code, pursuant to a qualified domestic relations order as defined in Section 414(p) of the Code; provided, however, that the Compensation Committee, in its discretion, may permit Options to be transferrable by a Participant to members of such Participant's immediate family or to family trusts, partnerships and other entities comprised solely of the Participant or members of the Participant's immediate family. 15. Rights as Stockholder. --------------------- No Common Stock may be delivered upon the exercise of any Option until full payment of the Option Price has been made and all income tax withholding requirements thereon have been satisfied. A Participant has no rights whatsoever as a stockholder with respect to any shares covered by an Option until the date of the issuance of a stock certificate for the shares. A Participant who has been granted SARs or Phantom Stock shall have no rights whatsoever as a stockholder with respect to such SARs or Phantom Stock. 16. Withholding Tax. --------------- The Company shall have the right to withhold or to require a Participant to remit to the Company, in cash or shares of Common Stock, with respect to any payments made to Participants under the Plan, any taxes required by law to be withheld because of such payments. -11- Subject to the consent of the Committee with respect to (a) the exercise of an NSO, (b) the lapse of restrictions on Restricted Stock, (c) a "disqualifying disposition" of an ISO, as determined pursuant to the Code, or (d) the issuance of any other stock award under the Plan, a Participant may make an irrevocable election (an "Election") to (i) have shares of Common Stock otherwise issuable withheld, or (ii) tender back to the Company shares of Common Stock received pursuant to (a), (b), or (d), or (iii) deliver back to the Company pursuant to (a), (b), or (d) previously acquired shares of Common Stock having a Fair Market Value sufficient to satisfy all or part of the Participant's estimated tax obligations. Such Election must be made by a Participant prior to the date on which the relevant tax obligation arises. The Committee may disapprove of any Election, may suspend or terminate the right to make Elections, or may provide with respect to any award under this Plan that the right to make Elections shall not apply to such award. 17. No Right To Employment. ---------------------- Participation in the Plan will not give any Participant a right to be retained as an employee of the Company or any subsidiary, or any right or claim to any benefit under the Plan, unless the right or claim has specifically accrued under the Plan. 18. Amendment of the Plan. --------------------- The Committee may from time to time amend or revise the terms of this Plan in whole or in part and may without limitation, adopt any amendment deemed necessary, subject only to applicable laws, regulations and the rules and regulations of the Nasdaq Stock Exchange or any national stock exchange upon which the Common Stock may be listed; provided, however, that (a) except as -------- ------- provided in Section 4(h), no change in any award previously granted to a Participant may be made that would impair the rights of the Participant without the Participant's consent, or (b) no amendment may extend the period during which a Participant may exercise an ISO beyond the period set forth in Section 6(a)(ii) or 6(e). Approval of the Company's stockholders to any amendment under part (c)(i) shall require a favorable vote by the majority of the shares of the Company's Common Stock and preferred stock voting separately as a class, and to all other amendments requiring stockholder approval shall require a vote of the majority of the shares of the Company's Common Stock and preferred stock voting together as one class, present in person or by proxy at a duly held stockholders meeting or by written consent. If any amendment requiring stockholder approval for the Committee to act under part (c) of the previous sentence is made subsequent to the first registration of any class of equity securities by the Company under Section 12 of the Exchange Act, such stockholder approval shall be solicited as described in Section 19. All amendments shall be in writing and consented to by a majority of the members of the Committee. 19. Stockholder Approval. -------------------- Continuance of the Plan shall be subject to approval by the stockholders of the Company within 12 months before or after the date the Plan is adopted by the Committee. If such stockholder approval is obtained at a duly held stockholder's meeting, it may be obtained by the -12- affirmative vote of the holders of a majority of the shares of Common Stock present at the meeting or represented and entitled to vote thereon. 20. Conditions Upon Issuance of Shares. ---------------------------------- An Option shall not be exercisable, a share of Common Stock shall not be issued pursuant to the exercise of an Option, and Restricted Stock shall not be awarded until such time as the Plan has been approved by the Stockholders of the Company and unless the award of Restricted Stock, exercise of such Option and the issuance and delivery of such share pursuant thereto shall comply with all relevant provisions of law, including, without limitation, the Securities Act, the Exchange Act, the rules and regulations promulgated thereunder, and the requirements of any stock exchange upon which the shares of Common stock may then be listed, and shall be further subject to the approval of counsel for the Company with respect to such compliance. As a condition to the exercise of an Option, the Company may require the person exercising such Option to represent and warrant at the time of any such exercise that the Common Stock is being purchased only for investment and without any present intention to sell or distribute such shares if, in the opinion of counsel for the Company, such a representation is required by any of the aforementioned relevant provisions of law. 21. Effective Date and Termination of Plan. -------------------------------------- (a) Effective Date. This Plan is effective as of the later of the date of -------------- its adoption by the Committee, or the date it is approved by the stockholders of the Company, pursuant to Section 18. (b) Termination of the Plan. The Committee may terminate the Plan at any ----------------------- time with respect to any shares that are not then subject to Options or Restricted Stock. Termination of the Plan will not affect the rights and obligations of any Participant with respect to Options, SARs, Phantom Stock or Restricted Stock awarded before termination. -13- EX-5.1 3 OPINION OF NEAL, GERBER & EISENBERG EXHIBIT 5.1 Neal, Gerber & Eisenberg Two N. LaSalle Street, Suite 2100 Chicago, Illinois 60602 (312) 269-8000 April 14, 1999 IFX Corporation 200 West Adams Street, Suite 1460 Chicago, Illinois 60606 Re: IFX Corporation Registration Statement on Form S-8 ---------------------------------- Ladies and Gentlemen: We are counsel to IFX Corporation, a Delaware corporation (the "Company"). In such capacity, we have assisted in the preparation and filing with the Securities and Exchange Commission, under the Securities Act of 1933, as amended (the "Securities Act"), of the Company's Registration Statement on Form S-8 (the "Registration Statement") relating to the Company's offer and sale of up to 900,000 shares of the common stock, $.02 par value per share, of the Company (the "Shares") pursuant to the IFX Corporation 1998 Stock Option and Incentive Plan (the "Plan"). As such counsel, we have examined the Plan, the Registration Statement (including all exhibits thereto) and such other papers, documents and certificates of public officials and certificates of officers of the Company as we have deemed necessary and appropriate as the basis for the opinions hereinafter expressed. In such examinations, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as conformed or photostatic copies. As to any facts material to this opinion, we have relied upon statements and representations of the Company, its officers and its other representatives, and public officials and we have not made any independent investigation of the applicable facts. We are members of the Bar of the State of Illinois and we express no opinion herein concerning any laws other than Delaware General Corporation Law and the federal laws of the United States of America. IFX Corporation April 14, 1999 Page 2 Based upon the foregoing, and subject to the limitations, qualifications, exceptions, and assumptions set forth herein, we are of the opinion that when the Registration Statement shall have become effective under the Securities Act and Shares shall have been issued and delivered by the Company against payment of consideration therefor, in accordance with the terms of the Plan and the agreement between the Company and the recipient of each Plan award that governs such award, such Shares will be duly and validly issued, fully paid and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to any reference to our firm contained in the Registration Statement. Very truly yours, /s/ Neal, Gerber & Eisenberg EX-23.2 4 CONSENT OF ARTHUR ANDERSEN EXHIBIT 23.2 CONSENT OF INDEPENDENT ACCOUNTANTS As independent public accountants, we hereby consent to the incorporation by reference into this Registration Statement on Form S-8 of IFX Corporation (the "Company") of our report dated September 16, 1998 included in the Company's Form 10-K as of and for the fiscal years ended June 30, 1998 and 1997, and to all references to our firm included in this Registration Statement on Form S-8. ARTHUR ANDERSEN LLP Chicago, Illinois April 14, 1999 -----END PRIVACY-ENHANCED MESSAGE-----