<PAGE>
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
<TABLE>
<CAPTION>
=========================================================================================
Proposed Maximum Aggregate Amount of
Title of Securities to be Registered Offering Price Registration Fee
<S> <C> <C>
- -----------------------------------------------------------------------------------------
Common Stock, par value $.02 per share $8,746,875(1) $ 2,432
=========================================================================================
</TABLE>
(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.
================================================================================
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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.
<PAGE>
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-
<PAGE>
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-
<PAGE>
(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-
<PAGE>
(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-
<PAGE>
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-
<PAGE>
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-
<PAGE>
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
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<PAGE>
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.
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<PAGE>
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.
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<PAGE>
(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.
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<PAGE>
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
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<PAGE>
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.
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<PAGE>
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.
<PAGE>
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
<PAGE>
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
