EXHIBIT 3(i)1
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
IFX CORPORATION
Pursuant to Section 242 of the General Corporation Law
of the State of Delaware
It is hereby certified that:
1. The name of the corporation is IFX Corporation (the "Corporation").
2. The Restated Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") was filed on November 9, 1999 and supplemented
by a Certificate of Designation, Numbers, Powers, Preferences and Relative,
Participating, Optional and Other Rights of Series A Preferred Stock (the
"Certificate of Designation") which was filed on June 15, 2000 (the Certificate
of Incorporation as so supplemented, the "Supplemented Certificate of
Incorporation").
3. The amendments to the Supplemented Certificate of Incorporation
effected bythis Certificate of Amendment are as follows:
(a) Sectio n 4(b)(B) of the Certificate of Designation as it now
exists is deleted and a new Section 4(b)(B), reading in its entirety as follows,
is inserted in lieu thereof:
(B) authorize or permit the Corporation or any subsidiary of the
Corporation to issue any capital stock or any options, warrants or
other rights exchangeable or exercisable therefor, other than (i)
shares of Series A Convertible Preferred Stock pursuant to the
Preferred Stock Purchase Agreement, (ii) Common Stock upon conversion
of the Series A Convertible Preferred Stock or upon the exercise of
stock options to purchase up to 3,960,000 shares of Common Stock
issuable pursuant to options to purchase Common Stock under the Stock
Option Plan provided, however, that with respect to 1,500,000 shares
of Common Stock issuable pursuant to options to purchase Common Stock
under the Stock Option Plan which the Board approved on October 10,
2000, 1,225,000 shares of such stock issuable pursuant to options
shall be granted at a price per share of not less than $12.31, 125,000
shares of such stock issuable pursuant to options shall be granted at
a price per share of $10.00 to Jack Roepers and up to an additional
150,000 shares of such stock issuable pursuant
to options may be granted at a price per share of not less than $8.75
(with all such prices per share subject to adjustment for stock
splits, combinations, stock dividends and the like), (iii) securities
issued as consideration for any acquisition approved by a majority of
the Board of Directors (including the affirmative vote of the Series A
Preferred Directors), including the issuance of up to 480,000 shares
of Common Stock as final payment for finder's fees to Redescape LLC
and its employees, consultants, affiliates or designees (including
employees of certain subsidiaries of the Corporation), (iv) up to $15
million of Common Stock, issued as consideration for any acquisition
approved by a majority of the Board of Directors (without the
affirmative vote of the Series A Preferred Directors), provided such
Common Stock is valued at no less than the greater of (1) the Stated
Value (as adjusted for stock splits, combinations, stock dividends and
the like) and (2) the average of the closing price for the Common
Stock for the 30 days prior to the issuance, (v) a warrant to purchase
210,000 shares of Common Stock to Spinway, Inc. (the "Spinway
Warrant"), (vi) 210,000 shares of Common Stock upon exercise of the
Spinway Warrant, or (vii) shares of Common Stock in exchange for
shares of common stock of Tutopia.com, Inc. ("Tutopia") upon a change-
in-control of the Corporation pursuant to the Tutopia Stockholders
Agreement dated as of April 24, 2000;
(b) The definition of "Permitted Issuances" in Section 6(a) of the
Certificate of Designation as it now exists is deleted and a new definition of
"Permitted Issuances", reading in its entirety as follows, is inserted in lieu
thereof:
"Permitted Issuances" shall mean (i) the issuance of up to
3,960,000 shares of Common Stock issuable pursuant to options to
purchase Common Stock under the Stock Option Plan provided, however,
that with respect to 1,500,000 shares of Common Stock issuable
pursuant to options to purchase Common Stock under the Stock Option
Plan which the Board approved on October 10, 2000, 1,225,000 shares of
such stock issuable pursuant to options shall be granted at a price
per share of not less than $12.31, 125,000 shares of such stock
issuable pursuant to options shall be granted at a price per share of
$10.00 to Jack Roepers and up to an additional 150,000 shares of such
stock issuable pursuant to options may be granted at a price per share
of not less than $8.75 (with all such prices per share subject to
adjustment for stock splits, combinations, stock dividends and the
like), (ii) shares of Common Stock issued or issuable in connection
with a Qualified Public Offering, (iii) shares of Common Stock issued
upon conversion of Series A Convertible Preferred Stock, (iv)
securities issued as consideration for any acquisition approved by a
majority of the Board of Directors (including the affirmative vote of
the Series A
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Preferred Director), including the issuance of up to 480,000 shares of
Common Stock as final payment for finder's fees to Redescape LLC and
its employees, consultants, affiliates or designees (including
employees of certain subsidiaries of the Corporation), (v) the
issuance of up to 820,471 shares of Series A Convertible Preferred
Stock at the Subsequent Closing (as defined in the Preferred Stock
Purchase Agreement), (vi) the issuance of an aggregate of up to
100,000 additional shares of Common Stock (as adjusted for stock
splits, combinations, stock dividends and the like) in transactions
approved by a majority of the Board of Directors, (vii) the issuance
of an aggregate of up to another 100,000 additional shares of Common
Stock (as adjusted for stock splits, combinations, stock dividends and
the like) in transactions approved by a majority of the Board of
Directors (including the affirmative vote of the Series A Preferred
Director), (ix) the Spinway Warrant, (x) 210,000 shares of Common
Stock upon exercise of the Spinway Warrant, and (xi) such other
issuances as shall be approved in advance by the affirmative vote or
written consent of the holders of a majority of the shares of Series A
Convertible Preferred Stock, voting as a single class in accordance
with Section 4(d).
(c) Section 9(b) of the Certificate of Designation as it now exists is
deleted and a new Section 9(b), reading in its entirety as follows, is inserted
in lieu thereof:
(b) "New Securities" shall mean (a) any capital stock of the
Corporation, rights, options or warrants to purchase capital stock and
securities of any type whatsoever that are, or may become convertible
into or exchangeable for capital stock and (b) so-called "high yield"
bonds, debt instruments with equity like features or other similar
debt instruments, which bear a rating lower than investment-grade or
are unrated, issued by the Corporation; provided, however, that the
term "New Securities" does not include (i) up to up to 3,960,000
shares of Common Stock issuable pursuant to options to purchase Common
Stock under the Stock Option Plan provided, however, that with respect
to 1,500,000 shares of Common Stock issuable pursuant to options to
purchase Common Stock under the Stock Option Plan which the Board
approved on October 10, 2000, 1,225,000 shares of such stock issuable
pursuant to options shall be granted at a price per share of not less
than $12.31, 125,000 shares of such stock issuable pursuant to
options shall be granted at a price per share of $10.00 to Jack
Roepers and up to an additional 150,000 shares of such stock issuable
pursuant to options may be granted at a price per share of not less
than $8.75 (with all such prices per share subject to adjustment for
stock splits, combinations, stock dividends and the like), (ii) shares
of Common Stock issued or issuable in
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connection with a Qualified Public Offering, (iii) shares of Common
Stock issued upon conversion of Series A Convertible Preferred Stock,
(iv) securities issued as consideration for any acquisition approved
by a majority of the Board of Directors (including the affirmative
vote of the Series A Preferred Directors), including the issuance of
up to 480,000 shares of Common Stock as final payment for finder's
fees to Redescape LLC and its employees, consultants, affiliates or
designees (including employees of certain subsidiaries of the
Corporation), (v) the issuance of up to 820,471 shares of Series A
Convertible Preferred Stock at the Subsequent Closing (as defined in
the Preferred Stock Purchase Agreement), (vi) the Spinway Warrant,
(vii) 210,000 shares of Common Stock upon exercise of the Spinway
Warrant, (viii) shares of Common Stock in exchange for shares of
common stock of Tutopia upon a change-in-control of the Corporation
pursuant to the Tutopia Stockholders Agreement dated as of April 24,
2000 or (ix) shares of Common Stock issued for any other reason after
first receiving the affirmative vote or written consent of the holders
of a majority of the shares of Series A Convertible Preferred Stock,
voting as a single class in accordance with Section 4(d).
4. The aforesaid Certificate of Amendment was duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law of the State
of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its duly authorized Assistant Secretary this 7th day
of November, 2000.
IFX CORPORATION, a Delaware
corporation
By: /s/ Scott J. Bakal
------------------
Name: Scott J. Bakal
Title: Assistant Secretary
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