EXHIBIT 5
to SCHEDULE 13D
This VOTING AGREEMENT dated as of October 1, 2001 is made and
entered into by and between Metromedia Company, a Delaware general partnership,
Xxxx X. Xxxxx, Xxxxxx Xxxxxxxxx, and Xxxxxxx X. Xxxxxxxx (collectively, the
"STOCKHOLDERS"), and each Person named on the signature pages hereof under the
caption "Initial Holders" (the "INITIAL HOLDERS").
WHEREAS, the Initial Holders and Metromedia Fiber Network,
Inc., a Delaware corporation ("MFN"), propose to enter into a warrant agreement,
a copy of which is attached hereto as ANNEX A (the "WARRANT AGREEMENT;
capitalized terms not defined herein shall have the meaning ascribed to them in
the Warrant Agreement), pursuant to which MFN will issue Warrants to the Initial
Holders on the terms provided for therein;
WHEREAS, the Stockholders own the number of shares of MFN as
set forth opposite such Stockholder's name on SCHEDULE I hereto (the "MFN
SHARES"); and
WHEREAS, as a condition to the Initial Holders' willingness to
enter into the Warrant Agreement and the Note and Guarantee Agreements, the
Initial Holders desire to establish in this Voting Agreement certain terms and
conditions concerning (i) the voting of the MFN Shares with respect to the
issuances (the "EQUITY ISSUANCES") of common stock (or securities convertible
into or exercisable for common stock) of the Issuer pursuant to the terms of the
Note and Guarantee Agreement and the Verizon Debt Agreement (as such terms are
defined in the Note and Guarantee Agreements) and (ii) the disposition of the
MFN Shares;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Voting Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
COVENANTS OF THE STOCKHOLDERS
1.01 APPROVAL OF EQUITY ISSUANCES. (a) Until such time as
the 20-day period provided for in Rule 14c-2(b) under the Exchange Act has
expired and the Equity Issuances have been approved by the requisite number of
shares of voting stock of MFN, the Stockholders will not sell, transfer or
otherwise dispose of any of the MFN Shares or any interest therein, exercise any
right of conversion with respect to the MFN Shares, deposit any of the MFN
Shares into a voting trust or enter into a voting agreement or arrangement or
grant any proxy with respect thereto or enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect Disposition of
any of the MFN Shares.
(b) The Stockholders will, with respect to all MFN Shares
either owned of record on the record date for voting at any annual or special
meeting of MFN stockholders to be held for the purpose of voting on the Equity
Issuances or for granting any written consent in connection with the
solicitation of written consents in lieu of such a meeting, or with respect to
which the Stockholders otherwise controls the vote, vote or cause to be voted
such shares (or execute written consents with respect to such shares) (i) in
favor of the Equity Issuances and (ii)
in favor of any other matter necessary for the consummation of the transactions
contemplated by the Warrant Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to the Initial
Holders as follows:
2.01 OWNERSHIP OF MFN SHARES. (a) Each Stockholder
represents and warrants to the Initial Holders that the Stockholder owns,
beneficially and of record, as of the date hereof, the number of MFN Shares as
set forth opposite such Stockholder's name on SCHEDULE I hereto, subject to no
rights of others and free and clear of all liens. Such Stockholder's right to
vote or dispose of the MFN Shares is not subject to any voting trust, voting
agreement, voting arrangement or proxy and such Stockholder has not entered into
any contract, option or other arrangement or undertaking with respect thereto.
2.02 AUTHORITY. This Voting Agreement has been duly and
validly executed and delivered by each Stockholder and constitutes a legal,
valid and binding obligation of the Stockholder enforceable against each
Stockholder in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.03 NO CONFLICTS. The execution and delivery by each
Stockholder of this Voting Agreement do not, and the performance by such
Stockholder of its obligations under this Voting Agreement will not:
(a) conflict with or result in a violation or breach of
any term or provision of its partnership agreement or other organizational
documents, if applicable, or any law, statute, rule or regulation or any order,
judgment or decree of any governmental or regulatory authority applicable to
each Stockholder or any of its properties or assets; or
(b) (i) conflict with or result in a violation or breach
of, (ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require each Stockholder to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, or (iv) result in the creation or imposition of any Lien upon any
of each Stockholder's properties or assets under, any contract, agreement, plan,
permit or license to which each Stockholder is a party.
2
2.04 GOVERNMENTAL APPROVALS AND FILINGS. No consent,
approval or action of, filing with or notice to any Governmental or Regulatory
Authority on the part of each Stockholder is required in connection with the
execution, delivery and performance of this Voting Agreement.
ARTICLE III
GENERAL PROVISIONS
3.01 NO ASSIGNMENT; BINDING EFFECT. Neither this Voting
Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other party hereto and any
attempt to do so will be void. Subject to the preceding sentence, this Voting
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns and legal
representatives.
3.02 SPECIFIC PERFORMANCE; LEGAL FEES. The parties
acknowledge that money damages are not an adequate remedy for violations of any
provision of this Voting Agreement and that any party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
for injunctive or such other relief as such court may deem just and proper in
order to enforce any such provision or prevent any violation hereof and, to the
extent permitted by applicable law, each party waives any objection to the
imposition of such relief. The parties hereto agree that, in the event that any
party to this Voting Agreement shall bring any legal action or proceeding to
enforce or to seek damages or other relief arising from an alleged breach of any
term or provision of this Voting Agreement by the other party, the prevailing
party in any such action or proceeding shall be entitled to an award of, and the
other party to such action or proceeding shall pay, the reasonable fees and
expenses of legal counsel to the prevailing party.
3.03 HEADINGS. The headings used in this Voting Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
3.04 INVALID PROVISIONS. If any provision of this Voting
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Voting Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Voting Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof and (iii) the remaining provisions of this Voting
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
3.05 GOVERNING LAW. This Voting Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
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3.06 COUNTERPARTS. This Voting Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
3.07 TERM. The term of this Voting Agreement shall be one
year from the date hereof, PROVIDED, HOWEVER, that if the transactions
contemplated by the Note and Guarantee Agreements and the Warrant Agreement
shall have been abandoned by the Purchasers under the Note and Guarantee
Agreements or the commitments under the Note and Guarantee Agreements shall have
been terminated, then this Voting Agreement shall have no further force and
effect.
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IN WITNESS WHEREOF, each party hereto has signed this Voting
Agreement, or caused this Voting Agreement to be signed by its officer thereunto
duly authorized, as of the date first above written.
METROMEDIA COMPANY
By: /s/ Metromedia Company
---------------------------------------
Name: Metromedia Company
Title:
/s/ Xxxx X. Xxxxx
--------------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxx Xxxxxxxxx
--------------------------------------------
Xxxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
Xxxxxxx X. Xxxxxxxx
5
INITIAL HOLDERS
CITICORP USA, INC.
By: /s/ Xxxxxx X. Xxxxxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Vice President
XXXXXXX XXXXX GLOBAL ALLOCATION
FUND, INC.
By: /s/ Xxxx X. X'Xxxxxxx
---------------------------------------
Xxxx Xxx X'Xxxxxxx
Director, Xxxxxxx Xxxxx Investment
Managers
Authorized Signatory
XXXXXXX XXXXX EQUITY/CONVERTIBLE
SERIES GLOBAL ALLOCATION PORTFOLIO
By: /s/ Xxxx X. X'Xxxxxxx
---------------------------------------
Xxxx Xxx X'Xxxxxxx
Director, Xxxxxxx Xxxxx Investment
Managers
Authorized Signatory
XXXXXXX XXXXX VARIABLE SERIES
FUNDS, INC.
(XXXXXXX XXXXX GLOBAL ALLOCATION
FOCUS FUND)
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
________________, Xxxxxxx Xxxxx
Investment Managers
Authorized Signatory
XXXXXXX XXXXX SERIES FUND, INC.
(GLOBAL ALLOCATION STRATEGY
PORTFOLIO)
By: /s/ Xxxx X. X'Xxxxxxx
---------------------------------------
Xxxx Xxx X'Xxxxxxx
Director, Xxxxxxx Xxxxx Investment
Managers
Authorized Signatory
0
XXXX X. XXXXX, XXXXX XXXXXXXXX
BANK AND XXXXXX XXXXXXXXX, TRUSTEES
UNDER A TRUST AGREEMENT BETWEEN
XXXX X. XXXXX, AS GRANTOR AND XXXX X.
XXXXX AND MANUFACTURERS
HANOVER TRUST COMPANY, AS TRUSTEES,
DATED MAY 30, 1984, AS AMENDED AND
RESTATED
By: /s/ Xxxxxx Xxxxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Trustee
SCHEDULE I
----------
CLASS A COMMON STOCK CLASS B COMMON STOCK
NAME OF STOCKHOLDER ---------------------------- ----------------------------
------------------- DIRECTLY BENEFICIALLY DIRECTLY BENEFICIALLY
OWNED OWNED OWNED OWNED
----- ----- ----- -----
Metromedia Company.......................... -- 62,924,096 62,924,096 62,924,096
Xxxx X. Xxxxx............................... 2,477,100 65,401,196 -- 62,924,096
Xxxxxx Xxxxxxxxx............................ -- 67,607,596 -- 62,924,096
Xxxxxxx X. Xxxxxxxx......................... 82,509,671 89,407,224 -- --
