<PAGE>
As filed with the Securities and Exchange Commission on November 30, 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
or organization incorporation) Identification No.)
707 Skokie Boulevard, 5th Floor
Northbrook, Illinois 60062
(847) 412-9411
____________________
(Address, including zip code, and telephone number, including area code, of
registrant's executive offices)
____________________
IFX Corporation 1998 Stock Option and Incentive Plan, as amended
----------------------------------------------------------------
(Full title of the plans)
Joel M. Eidelstein
IFX Corporation
707 Skokie Boulevard, 5th Floor
Northbrook, Illinois 60062
(847) 412-9411
____________________
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
____________________
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================
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 $16,762,500 (1)(2) $4,660
==========================================================================================
</TABLE>
(1) Pursuant to Rule 429 under the Securities Act of 1933, as amended, the
Prospectus which constitutes part of this Registration Statement also
relates to an aggregate of 900,000 shares of the registrant's common stock
previously registered on Form S-8 (Reg. No. 333-76257). This Registration
Statement registers 900,000 additional shares of the Registrant's Common
Stock issuable pursuant to the same employee benefit plan for which
Registration Statement 333-76257 currently is effective. Accordingly,
pursuant to Instruction E to Form S-8, the registration fee is being paid
with respect to the additional securities only. This Registration Statement
also registers an indeterminate number of shares that may be issued as a
result of anti-dilution provisions contained in the plans covered hereby.
(2) 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 prices of the Company's
Common Stock as reported on the Nasdaq SmallCap Market on November 24, 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>
Explanatory Note
- ----------------
On April 14, 1999, IFX Corporation (the "Registrant") filed Registration
Statement No. 333-76257 with the Securities and Exchange Commission to register
900,000 shares of its common stock, $.02 par value per share (the "Common
Stock"), issuable pursuant to the IFX Corporation Stock Option and Incentive
Plan (the "Plan"). Registration Statement No. 333-76257 is still effective.
This Registration Statement is being filed to register 900,000 additional shares
of Common Stock issuable by the Company pursuant to the Plan, as amended.
The contents of Registration Statement No. 333-76257 are incorporated
herein by reference, to the extent not amended hereby.
ONLY THOSE ITEMS AMENDED ARE INCLUDED HEREIN.
--------------------------------------------
Item 4. Description of Securities
Pursuant to the Company's Amended and Restated Certificate of Incorporation
(the "Certificate"), the Company is authorized to issue an aggregate of
50,000,000 shares of Common Stock, par value $.02 per share, and up to
10,000,000 shares of preferred stock. The preferred stock may be issued in such
classes or series and with such rights, preferences, qualifications or
restrictions as the Board, in its discretion, may determine. As of September
15, 1999, there were 7,695,377 shares of Common Stock outstanding and 872
holders of record of Common Stock. The Common Stock is listed on the Nasdaq
SmallCap Market under the symbol "FUTR."
The holders 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 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 stockholders. There
is no cumulative voting in the election of directors.
The terms and conditions of preferred stock, if and when issued, shall be
determined by the Board of Directors from time to time. No shares of preferred
stock currently are outstanding.
-2-
<PAGE>
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 stockholder" for a
three-year period following the date that such stockholder becomes an interested
stockholder 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 stockholder becoming an interested stockholder, (b) upon
consummation of the transaction that resulted in the stockholder becoming an
interested stockholder, the interested stockholder 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 stockholder. Except as
specified therein, an "interested stockholder" 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.
Item 8. Exhibits
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<S> <C>
4.1 IFX Corporation 1998 Stock Option and Incentive Plan, as amended
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 Ernst & Young LLP
23.3 Consent of Arthur Andersen LLP
24.1 Powers of Attorney (included in the signature page of this registration
statement)
</TABLE>
-3-
<PAGE>
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 December 2, 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 Jose Leiman, 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 and any and all amendments or supplements thereto,
together 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 might 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 December 2, 1999 by
the following persons in the capacities indicated:
Signature Title
- --------- -----
/s/ Michael Shalom Chief Executive Officer
- ----------------------
Michael Shalom (Principal Executive Officer)
/s/ Joel M. Eidelstein Director
- ----------------------
Joel M. Eidelstein
-4-
<PAGE>
/s/ Jose Leiman Chief Financial Officer
- ----------------------
Jose Leiman (Principal Financial and Accounting Officer)
/s/ Zalman Lekach Director
- ----------------------
Zalman Lekach
/s/ Colleen M. Downes Director
- ----------------------
Colleen M. Downes
/s/ George A. Myers Director
- ----------------------
George A. Myers
/s/ Joseph M. Matalon Director
- ----------------------
Joseph M. Matalon
/s/ Burton J. Meyer Director
- ----------------------
Burton J. Meyer
-5-
<PAGE>
EXHIBIT 4.1
IFX CORPORATION
STOCK OPTION AND INCENTIVE PLAN
(as amended on November 9, 1999)
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. National 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 1,800,000 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.
7. Terms and Conditions of Non-Qualified Stock Option.
--------------------------------------------------
-6-
<PAGE>
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 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
-7-
<PAGE>
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-
<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.
11. Manner of Exercise of Options.
-----------------------------
To exercise an Option in whole or in part, a Participant, any permitted
transferee 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
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<PAGE>
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.
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(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.
(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.
---------------------------------------------------
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<PAGE>
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. 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
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<PAGE>
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 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.
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<PAGE>
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 2200
Chicago, Illinois 60602
November 29, 1999
IFX Corporation
707 Skokie Blvd., 5th Floor
Northbrook, Illinois 60062
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 900,000 additional shares (the "Shares")
of common stock, $.02 par value per share, of the Company ("Common Stock") that
may be issued pursuant to the IFX Corporation Stock Option and Incentive Plan
(the "Plan"). The plan was amended on November 9, 1999 to increase the number of
shares of common stock available for grant thereunder from 900,000 shares (for
which Registration Statement 333-76257 currently is effective) to 1,800,000
share.
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
November 29, 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 the Shares shall have been issued and delivered by the Company against
payment of consideration therefor, in accordance with the terms of the Plan,
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,
NEAL, GERBER & EISENBERG
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1998 Stock Option and Incentive Plan, as amended, of our
report dated September 24, 1999, with respect to the consolidated financial
statements and schedule of IFX Corporation included in its Annual Report (Form
10-K) for the year ended June 30, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
Miami, Florida
November 30, 1999
<PAGE>
Exhibit 23.3
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 24, 1999, included in the Company's
Form 10-K as of and for the fiscals year ended June 30, 1998 and 1997 and to all
references to our firm included in this Registration Statement on Form S-8.
/s/ ARTHUR ANDERSEN LLP
Chicago, Illinois
November 24, 1999
