EXHIBIT 8
to SCHEDULE 13D
VOTING AGREEMENT
This VOTING AGREEMENT dated as of September 28, 2001 is made
and entered into by and among Nortel Networks Inc., a Delaware corporation
("NORTEL NETWORKS") and each of the stockholders listed on SCHEDULE I attached
hereto (each such stockholder, a "STOCKHOLDER").
WHEREAS, Nortel Networks 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 Nortel Networks on the
terms provided for therein;
WHEREAS, each Stockholder owns the shares of capital stock or
voting securities of MFN set forth opposite its name on SCHEDULE I hereto (the
"MFN SHARES"); and
WHEREAS, as a condition to Nortel Networks' willingness to
enter into the Warrant Agreement and the Note Agreement, Nortel Networks desires
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 Agreement and
Warrant Agreement 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 STOCKHOLDER
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, no
Stockholder will 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) Each Stockholder 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 Stockholder 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 STOCKHOLDER
Each Stockholder hereby represents and warrants to Nortel
Networks as follows:
2.01 OWNERSHIP OF MFN SHARES. The Stockholder represents
and warrants to Nortel Networks that such Stockholder owns, beneficially and of
record, as of the date hereof, the shares of capital stock or voting securities
of MFN set forth opposite its name on SCHEDULE I attached hereto, subject to no
rights of others and free and clear of all liens. The 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 the Stockholder has not entered into
any contract, option or other arrangement or undertaking with respect thereto,
except for that certain Voting Agreement, dated as of September 6, 2001, in
favor of each Person named on the signature pages thereto, which is
substantially identical to this Agreement.
2.02 AUTHORITY. This Voting Agreement has been duly and
validly executed and delivered by the Stockholder and constitutes a legal, valid
and binding obligation of the Stockholder enforceable against the 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 the
Stockholder of this Voting Agreement do not, and the performance by the
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, or any law, statute, rule or regulation or any order, judgment or
decree of any governmental or regulatory authority applicable to the 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 the 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 the Stockholder's properties or assets under, any contract, agreement, plan,
permit or license to which the Stockholder is a party.
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2.04 GOVERNMENTAL APPROVALS AND FILINGS. No consent,
approval or action of, filing with or notice to any Governmental Authority on
the part of the 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
without giving effect to the conflicts of law 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 Agreement and the Warrant Agreement shall have been
abandoned by the Purchasers, then this Voting Agreement shall have no further
force and effect.
[SIGNATURE PAGE FOLLOWS.]
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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.
STOCKHOLDERS
METROMEDIA COMPANY
By: /s/ Xxxx Xxxxx
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Name: Xxxx Xxxxx
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Title: President & COO
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Xxxx X. Xxxxx
/s/ Xxxx X. Xxxxx
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Xxxxxx Xxxxxxxxx
/s/ Xxxxxx Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------------
NORTEL NETWORKS INC.
By: /s/ Xxxxxxxx X. Xxxxx
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Name: Xxxxxxxx X. Xxxxx
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Title: Director, Customer Finance
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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 -
Xxxx X. Xxxxx....................... - 3,177,000 (1) - 62,924,096 (2)
Xxxxxx Xxxxxxxxx.................... - 4,683,500 (3) 4,454,448 63,084,096 (4)
Xxxxxxx X. Xxxxxxxx................. 82,334,846 6,259,000 (5) - -
1 Includes options to purchase 700,000 shares of the Company's Class A Common
Stock at an exercise price of $28.5625 per share owned by the Xxxxx Trust
(i.e., The Trust Agreement, dated May 30, 1984 (as amended and restated),
between Xxxx X. Xxxxx, as Grantor, and Xxxx X. Xxxxx, Chase Manhattan Bank
and Xxxxxx Xxxxxxxxx, as Trustees.
2 Represents shares held by Metromedia Company.
3 Includes presently exercisable options to purchase 2,733,500 and 700,000
shares of the Company's Class A Common Stock at an exercise price of
$0.12313 and $28,5625 per share, respectively. Also includes 1,250,000
shares held by three trusts for which Xx. Xxxxxxxxx serves as Trustee.
4 Includes 62,924,096 shares owned by Metromedia Company and shares owned by
the Subotnick Family Trust, the Xxxxx Xxxxxxxxx Trust and the Xxxxx
Xxxxxxxxx Trust.
5 Includes presently exercisable options to purchase 1,233,962, 4,761,489 and
263,549 shares of the Company's Class A Common Stock owned by Xx. Xxxxxxxx,
the Xxxxxxx X. Xxxxxxxx Annuity Trust No. 1 and the Xxxxxxxx Annuity Trust
No. 2, respectively, having an exercise price of $0.12313 per share.
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