Exhibit (K)(3)
[FORM OF FORWARD PURCHASE AGREEMENT]
FORWARD PURCHASE AGREEMENT
Between
[METROMEDIA COMPANY]
[XXXXXXX X. XXXXXXXX]
[XXXXXX XXXXXXXXX]
As Seller,
and
DECS TRUST VI, As Purchaser
Dated as of
November [ ], 1999
FROM OF FORWARD PURCHASE AGREEMENT
THIS AGREEMENT is made as of this [ ]th day of November, 1999
among [Metromedia Company], a [general partnership organized under the laws of
the State of Delaware] [Xxxxxxx X. Xxxxxxxx] [Xxxxxx Xxxxxxxxx] ("SELLER"
and, together with the Other Sellers (as defined below), "SELLERS") and DECS
Trust VI, a business trust organized under the laws of the State of Delaware
under and by virtue of an amended and restated declaration of trust, dated as
of November [ ], 1999 (the "DECLARATION OF TRUST") (such trust and the
trustees thereof acting in their capacity as such being referred to herein as
"PURCHASER").
WHEREAS, Seller owns shares of Class A Common Stock, $.01 par
value (the "CLASS A COMMON Stock") or Class B Common Stock, $.01 par value
(the "Class B Common Stock" and together with the Class A Common Stock, the
"Common Stock") of Metromedia Fiber Network, Inc., a Delaware corporation
(including its successors) (the "COMPANY");
WHEREAS, the shares of Class B Common Stock are immediately
convertible into shares of Class A Common Stock at the option of the holder
of the shares of Class B Common Stock.
WHEREAS, Purchaser has filed with the Securities and Exchange
Commission a registration statement contemplating the offering of up to
11,500,000 DECS (the "DECS"), the terms of which contemplate delivery by
Purchaser to the holders thereof of a number of shares of Class A Common Stock
(or, if some or all of the Sellers exercise their cash settlement option, cash
in lieu of part or all thereof), on [ ], 2002 (as further defined herein, the
"EXCHANGE DATE");
WHEREAS, in exchange for certain consideration to be paid by
Purchaser hereunder and under other similar agreements, Purchaser and Seller
desire to provide for the future acquisition, sale and delivery of the aggregate
number of shares of Class A Common Stock contemplated to be delivered by
Purchaser in respect of the DECS on the Exchange Date, at a price to be
established under this Agreement and such other agreements;
WHEREAS, Seller has agreed to enter into a Collateral
Agreement (the "COLLATERAL AGREEMENT") to be dated as of November [ ], 1999,
among Purchaser, Seller and The Bank of New York, as collateral agent (the
"COLLATERAL AGENT"), to grant Purchaser a security interest in the shares of
Class A Common Stock or Class B Common Stock specified therein and in certain
other circumstances certain other collateral to secure the obligations of
Seller hereunder;
WHEREAS, Purchaser has agreed, pursuant to an underwriting
agreement, dated November [ ], 1999 (the "UNDERWRITING AGREEMENT"), among
Purchaser, Seller, the other entities named as "Sellers" therein (collectively,
the "OTHER SELLERS"), the Company, Xxxxxxx Xxxxx Xxxxxx Inc., Credit Suisse
First Boston Corporation, Deutsche Bank Securities Inc., Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co., and Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (each an "UNDERWRITER", and collectively,
the "UNDERWRITERS"), to issue and sell to the Underwriters an aggregate of
10,000,000 DECS (together with the [ ] DECS purchased by Xxxxxxx Xxxxx Barney
Inc. in connection with the organization of the Purchaser, the "INITIAL DECS")
and, at the Underwriters' option, up to 1,500,000 additional DECS (the
"ADDITIONAL DECS") to cover over-allotments, if any.
NOW, THEREFORE, in consideration of their mutual covenants
herein contained, the parties hereto, intending to be legally bound, hereby
mutually covenant and agree
as follows:
DEFINITIONS
As used herein, the following words and phrases shall have the
following meanings:
"ACCELERATION DATE" has the meaning provided in Article VII.
"ACCELERATION VALUE" has the meaning provided in Article VII.
"ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"ADDITIONAL DECS" has the meaning provided in the recitals of
this Agreement.
"ADDITIONAL PURCHASE PRICE" has the meaning provided in
Section 1.2(b).
"ADDITIONAL SHARE BASE AMOUNT" means a number equal to
[insert proportion of overallotmant shares to be provided by this Seller] time
the number of Additional DECS that the Underwriters elect to purchase under the
Underwriting Agreement.
"ADDITIONAL SHARES" has the meaning provided in Section
1.1(b).
"ADDITIONAL STRIPS" means the U.S. Treasury obligations
purchased by Purchaser for settlement on the Option Closing Date.
"ADJUSTMENT EVENT" has the meaning provided in Section 6.2.
"ADMINISTRATOR" means The Bank of New York, administrator for
Purchaser under the Administration Agreement to be dated as of November [ ],
1999, or any successor thereto.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person or is a partner in, or a trustee, settlor, beneficiary, member,
manager, director or officer of, such Person and, with respect to any Person
that is a natural person, further includes such Person's immediate family
members, including his father, mother, spouse and children, the spouses of his
children, his siblings and their spouses and children. For purposes of this
definition, "CONTROL" (including the terms "CONTROLLED BY" or "UNDER COMMON
CONTROL WITH") means, as to any Person, the possession, direct or indirect, of
the power to vote ten percent or more of the corporate or beneficial interests
of such Person (or of the securities having ordinary voting power for the
election of directors of such Person), or the power to direct or cause the
direction of the management and policies of such Person, whether through
ownership of voting securities or by contract or otherwise.
"BANKRUPTCY CODE" has the meaning provided in Section 10.7.
"BUSINESS DAY" means any day that is not a Saturday, a Sunday
or a day on which the NYSE or banking institutions or trust companies in The
City of New York are authorized or
obligated by law or executive order to close.
"CALCULATION PERIOD" means any period of Trading Days for
which an average security price must be determined pursuant to this Agreement.
"CASH DELIVERY OPTION" has the meaning provided in Section
1.3(d).
"CASH EQUIVALENTS" has the meaning provided in the Collateral
Agreement.
"CLOSING PRICE" means, for any security on any date of
determination, (i) the closing sale price (or, if no closing price is reported,
the last reported sale price) of such security (regular way) on the NYSE on such
date, (ii) if such security is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United States
national securities exchange on which such security is so listed, (iii) if such
security is not so listed on a United States national or regional securities
exchange, as reported by The NASDAQ Stock Market, (iv) if such security is not
so reported, as reported in the composite transactions for the principal United
States regional securities exchange on which such security is so listed, (v) if
such security is not so listed on a United States regional security exchange,
the last quoted bid price for such security in the over-the-counter market as
reported by the National Quotation Bureau or similar organization or (vi) if
such security is not so quoted, the average of the mid-point of the last bid and
ask prices for such security from at least three nationally recognized
investment banking firms selected by the Administrator for such purpose. The
Closing Price as determined pursuant to the foregoing shall be subject to
adjustment in certain circumstances as provided in Section 6.1(c).
"COLLATERAL" has the meaning provided in the Collateral
Agreement.
"COLLATERAL AGENT" has the meaning provided in the recitals of
this Agreement.
"COLLATERAL AGREEMENT" has the meaning provided in the
recitals of this Agreement.
"COMMISSION" means the Securities and Exchange Commission.
"CLASS A COMMON STOCK" has the meaning provided in the
recitals of this Agreement.
"COMPANY" has the meaning provided in the recitals of this
Agreement.
"CONTRACT SHARES" has the meaning provided in Section 1.1.
"CUSTODIAN" means The Bank of New York, custodian for
Purchaser under the Custodian Agreement dated as of October 27, 1999, or any
successor thereto.
"DECLARATION OF TRUST" has the meaning provided in the
introductory paragraph of this Agreement.
"DECS" has the meaning provided in the recitals of this
Agreement.
"DILUTION ADJUSTMENT" means any fraction or number by which
the Exchange Rate shall be multiplied pursuant to Section 6.1(a) or (b) or by
which Closing Prices may be divided pursuant to Section 6.1(c).
"EVENT OF DEFAULT" has the meaning provided in Article VII.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"EXCHANGE DATE" means [ ], 2002, subject to (i) extension by
Seller pursuant to Section 1.3(f) and (ii) subsequent acceleration by Seller
pursuant to Section 1.3(g).
"EXCHANGE PRICE" means the average Closing Price per share of
Class A Common Stock on the 20 Trading Days immediately prior to (but not
including) the Exchange Date; provided, however, that if there are not 20
Trading Days for the Class A Common Stock occurring later than the 60th calendar
day immediately prior to, but not including, the Exchange Date, Exchange Price
shall mean the market value per share of the Class A Common Stock as of the
Exchange Date as determined by a nationally recognized independent investment
banking firm retained for this purpose by the Administrator; PROVIDED that for
purposes of determining the payment required upon cash settlement of this
Agreement in connection with a Rollover Offering, "Exchange Price" means the
Closing Price per share of Class A Common Stock on the Trading Day immediately
preceding the date that the Rollover Offering is priced (the "Pricing Date") or,
if the Rollover Offering is priced after 4:00 p.m., New York City time, on the
Pricing Date, the Closing Price per share of Class A Common Stock on the Pricing
Date. The Exchange Price as determined pursuant to the foregoing shall be
subject to adjustment in certain circumstances as provided in Section 6.1(c).
"EXCHANGE RATE" has the meaning provided in Section 1.1(c).
"EXTENSION AMOUNT" means the product of (i) $[additional
payments due on all DECS for full extension period] and (ii) a fraction, the
numerator of which is the sum of the Firm Share Base Amount and the
Additional Share Base Amount and the denominator of which is the number of
Initial DECS and Additional DECS.
"FIRM PAYMENT DATE" has the meaning provided in Section
1.3(a).
"FIRM PURCHASE PRICE" has the meaning provided in Section
1.2(a).
"FIRM SHARE BASE AMOUNT" has the meaning provided in Section
1.1(a).
"FIRM SHARES" has the meaning provided in Section 1.1(a).
"FORWARD PURCHASE CONTRACT CHARACTERIZATION" has the meaning
provided in Section 5.2(a).
"INDEPENDENT DEALERS" has the meaning provided in Article VII.
"INITIAL DECS" has the meaning provided in the recitals of
this Agreement.
"INITIAL PRICE" has the meaning provided in Section 1.1(c).
"LIEN" has the meaning provided in the Collateral Agreement.
"MARKET PRICE" means, as of any date of determination, the
average Closing Price per share of Class A Common Stock on the 20 Trading Days
immediately prior to (but not including) the date of determination; provided,
however, that if there are not 20 Trading Days for the Class A Common Stock
occurring later than the 60th calendar day immediately prior to, but not
including, such date, the Market Price shall mean the market value per share of
Class A Common Stock as of such date as determined by a nationally recognized
investment banking firm retained for such purpose by the Administrator.
"NYSE" means the New York Stock Exchange Inc.
"OFFICER" shall mean the manager, trustee, president, any vice
president, the chief financial officer, the treasurer or the secretary of a
Person.
"OFFICER'S CERTIFICATE" means a certificate signed by an
Officer of a Person.
"OPINION OF COUNSEL" means a written opinion from legal
counsel who is acceptable to the Trust.
"OPTION CLOSING DATE" means the settlement dates for the
Additional DECS under Section 5 of the Underwriting Agreement.
"ORDINARY CASH DIVIDEND" means, with respect to any
consecutive 365-day period, any dividend with respect to Class A Common Stock
paid in cash to the extent that the amount of such dividend, together with the
aggregate amount of all other dividends on the Class A Common Stock paid in cash
during such 365-day period, does not exceed on a per share basis 10% of the
average of the Closing Prices of the Class A Common Stock over such 365-day
period; provided that, for purposes of the foregoing definition, the amount of
cash dividends paid on a per share basis shall be appropriately adjusted to
reflect the occurrence during such period of any event described in Article VI.
"OTHER ROLLOVER SELLER" has the meaning provided in Section
1.3(e).
"PERSON" means an individual, partnership, corporation
(including a business trust), joint stock company, trust, unincorporated
association, limited liability company, joint venture or other entity, or a
government or any political subdivision or agency thereof.
"PURCHASER" has the meaning provided in the introductory
paragraph of this Agreement.
"REIMBURSEMENT AGREEMENT" means the reimbursement agreement,
to be dated as of November [ ], 1999 among Xxxxxxx Xxxxx Xxxxxx Inc. and the
Sellers.
"REPORTED SECURITIES" has the meaning provided in Section 6.2.
"ROLLOVER OFFERING" means a reoffering or refinancing of the
DECS effected by
the Seller or Sellers not earlier than [ ], 2002 by means of a completed public
offering or offerings or another similar offering (which may include one or more
exchange offers), by or on behalf of such Seller or Sellers.
"ROLLOVER OFFERING ELECTION" means a written election made in
accordance with Section 1.3(e).
"SELLER" and "SELLERS" have the meaning provided in the
introductory paragraph of this Agreement.
"SHARE COMPONENTS" means the numbers of shares of Common Stock
per DECS specified in clauses (i), (ii) and (iii) of Section 1.1(c).
"THRESHOLD APPRECIATION PRICE" has the meaning provided in
Section 1.1(c).
"TRADING DAY" means, with respect to any security the Closing
Price of which is being determined, a day on which such security (A) is not
suspended from trading on any national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or over-the-counter market that is the primary market for the
trading of such security.
"TRANSACTION VALUE" has the meaning provided in Section 6.2.
"UNDERWRITER" and "UNDERWRITERS" have the meaning provided in
the recitals of this Agreement.
"UNDERWRITING AGREEMENT" has the meaning provided in the
recitals of this Agreement.
ARTICLE I
SALE AND PURCHASE
1.1 SALE AND PURCHASE.
(a) FIRM SHARES. Upon the terms and subject to the conditions
of this Agreement, Seller agrees to sell to Purchaser, and Purchaser agrees to
purchase and acquire from Seller, the number of shares of Class A Common Stock
(the "FIRM SHARES") equal to the product of [ ] (the "FIRM SHARE BASE AMOUNT")
and the Exchange Rate.
(b) ADDITIONAL SHARES. Upon the terms and subject to the
conditions of this Agreement, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase and acquire from Seller, a number of additional shares of
Class A Common Stock (the "ADDITIONAL SHARES") equal to the product of the
Additional Share Base Amount and the Exchange Rate. In addition to the other
conditions set forth herein, such purchase and sale shall be conditioned on the
Underwriters' purchase of the Additional Share Base Amount of Additional DECS
pursuant to the Underwriting Agreement on the Option Closing Date. Promptly
after receipt by Purchaser of notice that the Underwriters are exercising their
option to purchase Additional DECS, Purchaser will provide Seller with written
notice of such exercise by the Underwriters, stating the related Additional
Share Base Amount and the date on which Purchaser shall deliver the purchase
price for the Additional Shares, which shall be the Option Closing Date for the
Additional DECS. The Firm Shares and the Additional Shares (if any) are
collectively referred to herein as the "CONTRACT SHARES").
(c) EXCHANGE RATE. The "EXCHANGE RATE" shall be determined in
accordance with the following formula, subject to adjustment as a result of
certain events as provided in Article VI: (i) if the Exchange Price is greater
than $[ ] (the "THRESHOLD APPRECIATION PRICE"), 0. [ ], (ii) if the Exchange
Price is less than or equal to the Threshold Appreciation Price but greater than
$[ ] (the "INITIAL Price"), a fraction (rounded upward or downward to the
nearest 1/10,000th or, if there is not a nearest 1/10,000th, to the next higher
1/10,000th) equal to the Initial Price divided by the Exchange Price and (iii)
if the Exchange Price is less than or equal to the Initial Price, 1.
1.2 PURCHASE PRICE.
(a) FIRM PURCHASE PRICE. The purchase price for the Firm
Shares (the "FIRM PURCHASE Price") shall be $[ ] in cash.
(b) ADDITIONAL PURCHASE PRICE. The purchase price for the
Additional Shares (the "ADDITIONAL PURCHASE PRICE") shall be an amount equal to
[proportion of overallotment shares to be provided by this Seller] times the
difference between (1) the aggregate proceeds to Purchaser from the sale of
the Additional DECS and (2) the aggregate cost to Purchaser, as notified by
Purchaser to Seller on the Option Closing Date for the Additional DECS, of
the Additional STRIPS.
1.3 PAYMENT FOR AND DELIVERY OF CONTRACT SHARES.
(a) FIRM PAYMENT DATE. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Firm
Purchase Price on [ ], 1999 (the "FIRM PAYMENT DATE") at the offices of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, or at such other place as shall be agreed upon by Purchaser
and Seller, paid by wire transfer of Federal (immediately available same-day)
funds to an account designated by Seller, against delivery by Seller to the
Collateral Agent of the number of shares of Class A Common Stock and/or cash,
securities and other property necessary to comply with Seller's obligations
under the Collateral Agreement.
(b) OPTION CLOSING DATE. Upon the terms and subject to the
conditions of this Agreement, Purchaser shall deliver to Seller the Additional
Purchase Price on the Option Closing Date at the offices of Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place as shall be agreed upon by Purchaser and
Seller, paid by wire transfer of Federal (immediately available same-day)
funds to an account designated by Seller, against delivery by Seller to the
Collateral Agent of the additional number of shares of Common Stock and/or
cash,
securities and other property necessary to comply with Seller's obligations
under the Collateral Agreement.
(c) DELIVERY OF CONTRACT SHARES.
(i) Seller agrees to deliver the Contract Shares to Purchaser
on the Exchange Date. Seller shall be deemed to have instructed the
Collateral Agent to deliver to the Custodian, for the account of
Purchaser, shares of Class A Common Stock then held by the Collateral
Agent as collateral under the Collateral Agreement, in an amount equal
to the number of Contract Shares, rounded down to the nearest whole
number. Instead of any fractional shares of Class A Common Stock that
would otherwise be deliverable (prior to rounding) to Purchaser at the
Exchange Date, Seller agrees to make a cash payment in respect of such
fractional shares of Class A Common Stock in an amount equal to the
value thereof at the Exchange Price. Notwithstanding the foregoing, if
an Adjustment Event shall have occurred prior to the Exchange Date
then, in lieu of the foregoing, Seller shall be deemed to have
instructed: (A) in the case of any cash required to be delivered on the
Exchange Date as provided in Section 6.2, the Collateral Agent to wire
transfer Federal (immediately available same-day) funds to an account
designated by Purchaser; and (B) in the case of any Reported Securities
required to be delivered by Seller in lieu of cash as provided in
Section 6.2, the Collateral Agent to deliver to the Custodian, for the
account of Purchaser, a specified number of Reported Securities then
held as collateral under the Collateral Agreement, as provided in
Section 6(g) of the Collateral Agreement.
(ii) In the event that by the Exchange Date any substitute
collateral has not been replaced by shares of Common Stock
(and/or, after an Adjustment Event, cash or Reported Securities)
sufficient to meet Seller's obligations hereunder, delivery shall be
effected by delivery by the Collateral Agent to the Custodian, for the
account of Purchaser, of the market value of the shares of Class A
Common Stock required to be delivered hereunder, in the form of any
shares of Class A Common Stock then pledged by Seller plus cash
generated from the liquidation of U.S. Government obligations and Cash
Equivalents then pledged by Seller (and/or, after an Adjustment Event,
the market value of the alternative consideration required to be
delivered hereunder, in the form of any Reported Securities then
pledged, plus any cash then pledged, plus cash generated from the
liquidation of U.S. Government obligations and Cash Equivalents then
pledged). In such event, Seller shall be deemed to have instructed the
Collateral Agent to liquidate and turn into cash the U.S. Government
obligations and Cash Equivalents then pledged by Seller to the extent
necessary to satisfy Seller's obligations hereunder.
(iii) Certificates representing Common Stock (or
Reported Securities) in registered form that are part of the Contract
Shares shall be indorsed in blank (together with all documents
necessary to permit the Purchaser to effect the re-registration
thereof without further action by the Seller) unless such Common
Stock (and/or Reported Securities) is represented by one or more
global certificates registered in the name of a depositary or a
nominee of a depositary or are book entry securities, in which event
Purchaser's interest
in such securities shall be noted in a manner satisfactory to Purchaser
and its counsel.
(iv) Seller's right to deliver (or cause to be delivered) to
Purchaser hereunder Class A Common Stock and Reported Securities shall
be conditioned upon such Class A Common Stock and Reported Securities
to be so delivered being transferable (i) by Seller to Purchaser in
accordance with the provisions hereof and in accordance with the terms
of any agreement among shareholders applicable to such Class A Common
Stock or Reported Securities, and (ii) by Purchaser, following receipt
from Seller, without any restrictions not generally applicable to all
holders of such Class A Common Stock or Reported Securities, as the
case may be. If the conditions set forth in the preceding sentence
shall not be satisfied with respect to any Class A Common Stock or
Reported Securities to be delivered by Seller, then, notwithstanding
the provisions hereof, Seller shall exercise the Cash Delivery Option.
(d) CASH DELIVERY OPTION. At its option, Seller may deliver to
Purchaser on the Exchange Date, in lieu of some or all of the Contract Shares,
an amount in cash equal to, subject to adjustment as provided in Section 6.2,
the Exchange Price of the Contract Shares (the "CASH DELIVERY OPTION"), paid by
wire transfer to an account designated by Purchaser, in Federal (immediately
available same-day) funds; provided that in connection with a Rollover Offering
which is consummated and as to which Seller has duly elected the Cash Delivery
Option and has duly made a Rollover Offering Election, such cash payment shall
be made no later than the fifth Business Day after the Exchange Date. Seller may
elect the Cash Delivery Option in respect of all or a portion of the Contract
Shares and may do so by notice to Purchaser, the Collateral Agent and the
Custodian not less than 25 Business Days prior to the Exchange Date. If Seller
elects the Cash Delivery Option and so notifies Purchaser, Purchaser shall
promptly notify The Depository Trust Company and publish a notice in a daily
newspaper of national circulation stating whether the holders of DECS will
receive shares of Class A Common Stock, cash or a combination thereof (and
specifying whether any such cash settlement is being made in connection with a
Rollover Offering) and, if a combination of Class A Common Stock and cash, the
relative proportion of each.
(e) ROLLOVER OFFERING ELECTION. The provisions of Sections
1.3(f) and (g) shall be applicable if the Seller has made a Rollover Offering
Election by written notice given to the Purchaser not earlier than [ ], 2002 and
not later than [ ], 2002. Any Rollover Offering Election (i) shall be
irrevocable once made, (ii) may be made only if the Seller has also elected, or
simultaneously elects, the Cash Delivery Option, and (iii) shall be effective
only if each Seller electing the Cash Delivery Option (as defined in the
forward purchase agreements dated as of the date hereof between such Sellers
and the Purchaser) also makes a Rollover Offering Election pursuant to such
Seller's forward purchase agreements (each such other seller, an "OTHER
ROLLOVER Seller").
(f) EXTENSION OF EXCHANGE DATE. At its option, Seller may, by
notice given to Purchaser not earlier than [ ], 2002 and not later than [ ],
2002, elect to extend the Exchange Date to [ ], 2003, provided that such
extension shall be effective (i) only in connection with a Rollover
Offering as to which the Seller shall have duly made a Rollover Offering
Election, (ii) only if Seller shall have delivered to the Collateral Agent, in
pledge under the Collateral Agreement direct obligations of the United States of
America or other Cash Equivalents which through the scheduled payment of
principal and interest in accordance with their terms will provide, not later
than one Business Day before [ ], 2003, money in an amount not less
than the Extension Amount (the "ADDITIONAL GOVERNMENT SECURITIES") (or, if
Seller is exercising the extension option as to less than all of the Contract
Shares, a proportion of the Extension Amount equal to the proportion of the
Contract Shares as to which Seller is exercising the extension option) and
(iii) only if each Other Rollover Seller, if any, has previously or
simultaneously elected to extend the Exchange Date (as such term is defined
in the forward purchase agreement dated as of the date hereof between such
Other Seller and the Purchaser) to the same date as is elected by the Seller
hereunder. Unless Seller has duly elected, in connection with a Rollover
Offering, to accelerate the Exchange Date in accordance with Section 1.3(g)
hereof, Seller shall on such extended Exchange Date pay to Purchaser by wire
transfer of Federal (immediately available same-day) funds an amount not less
than the Extension Amount (or, if Seller is exercising the extension option
as to less than all of the Contract Shares, a proportion of the Extension
Amount equal to the proportion of the Contract Shares as to which Seller is
exercising the extension option).
In addition, Seller hereby covenants and agrees to take all
other actions necessary to cause Purchaser to be a protected purchaser of such
Additional Government Securities and Cash Equivalents, within the meaning of
Article 8 of the New York Uniform Commercial Code, as amended.
If Seller elects to extend the Exchange Date and so notifies
Purchaser, Purchaser shall promptly notify the Depository Trust Company and
publish a notice in a daily newspaper of national circulation stating that the
Seller has elected to extend the Exchange Date.
(g) ACCELERATION OF EXCHANGE DATE. At any time after the
Exchange Date has been extended pursuant to Section 1.3(f) hereof, Seller may,
at its option but only in connection with the consummation of a Rollover
Offering, accelerate the Exchange Date to any date on or after [ ], 2002, by
notice to Purchaser not later than 10:00 a.m. on the date to which the Exchange
Date is accelerated; provided that such acceleration shall be effective only if
(i) each Other Rollover Seller, if any, has previously or simultaneously elected
to accelerate the Exchange Date (as such term is defined in the forward purchase
agreement dated as of the date hereof between such Other Rollover Seller and the
Purchaser), and (ii) at or prior to 10:00 a.m. on such accelerated Exchange
Date, Seller has paid to Purchaser, by wire transfer to an account designated by
Purchaser, in Federal (immediately available same-day) funds, an amount equal to
not less than the product of (1) the Extension Amount TIMES the number of
days in the period from (and including) [ ], 2002 to (but excluding) the
Exchange Date as accelerated, calculated on the basis of a 360 day year
consisting of twelve 30-day months divided by [90].
If Seller elects to accelerate the Exchange Date and so
notifies Purchaser, Purchaser shall provide notice of such election to the
holders of the DECS not later than the accelerated Exchange Date.
(h) Seller represents, and Purchaser acknowledges, that it is
Seller's current intention to deliver Contract Shares to the Purchaser on the
Exchange Date and not to exercise the Cash Delivery Option; however, Seller
intends to consider all relevant economic, market and business factors in
ultimately determining whether to deliver Contract Shares on the Exchange Date
or to exercise the Cash Delivery Option.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Purchaser that each
representation and warranty made by Seller in Section 3 of the Underwriting
Agreement is true and correct on the date hereof.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PURCHASER
Purchaser represents and warrants to Seller that:
(a) each representation and warranty made by Purchaser in
Section 1 of the Underwriting Agreement is true and correct on the date hereof;
and
(b) it acknowledges that the Class A Common Stock delivered
pursuant to this Agreement and the Collateral Agreement may contain one or more
of the type of legends referred to in Section 3(e) of the Collateral Agreement
(which legend (i) will not be applicable to the delivery of any such Class A
Common Stock to the Trust pursuant to this Agreement and the Collateral
Agreement or to the delivery of any such Class A Common Stock by the Trust to
the holders of DECS pursuant to the DECS and (ii) will be removed at the request
of the Collateral Agent to the transfer agent for the Class A Common Stock prior
to any such delivery to holders of DECS).
ARTICLE IV
CONDITIONS TO PURCHASER'S OBLIGATIONS
(a) The obligation of Purchaser to deliver the Firm Purchase
Price on the Firm Payment Date is subject to the satisfaction of the following
conditions:
(i) the purchase by the Underwriters of the Initial DECS
pursuant to the
Underwriting Agreement shall have been consummated as contemplated
under the Underwriting Agreement;
(ii) the representations and warranties of the Seller
contained in Article II hereof shall be true and correct as of the Firm
Payment Date;
(iii) the Collateral Agreement shall have been executed by the
Seller and the delivery of the Collateral thereunder shall have been
made; and
(iv) each Other Seller shall have executed and delivered a
forward purchase contract dated as of the date hereof between such
Other Seller and Purchaser;
(v) each Other Seller shall have executed and delivered a
collateral agreement dated as of the date hereof among such Other
Seller, the Purchaser and the collateral agent; and
(vi) the Reimbursement Agreement shall have been executed by
the Sellers.
(b) The obligation of Purchaser to deliver the Additional
Purchase Price on the Option Closing Date is subject to the satisfaction of the
following conditions:
(i) the purchase by the Underwriters of the Additional DECS
pursuant to the Underwriting Agreement shall have been consummated as
contemplated under the Underwriting Agreement;
(ii) the representations and warranties of the Seller
contained in Article II hereof shall be true and correct as of the
Option Closing Date; and
(iii) the delivery of any additional Collateral under the
Collateral Agreement shall have been made.
ARTICLE V
COVENANTS
5.1 TAXES. Seller shall pay any and all documentary, stamp,
transfer or similar taxes and charges that may be payable in respect of the
entry into this Agreement and the transfer and delivery of the Contract Shares,
cash, Cash Equivalents or Reported Securities pursuant hereto.
5.2 FORWARD PURCHASE CONTRACT. Each of Purchaser and Seller
hereby agrees that:
(a) it will treat this Agreement in its entirety as a forward
purchase contract for the delivery of the Contract Shares on the Exchange Date
(including as a result of acceleration or otherwise) (the "FORWARD PURCHASE
CONTRACT CHARACTERIZATION"), under the terms
of which contract (i) at the time of issuance of the DECS, Purchaser deposits
irrevocably with Seller a fixed amount of cash equal to the Firm Purchase Price
(plus, if the Underwriters exercise their option to purchase Additional DECS,
the Additional Purchase Price) to assure the fulfillment of Purchaser's purchase
obligation described in clause (ii) below, which deposit will unconditionally
and irrevocably be applied at the Exchange Date to satisfy such obligation and
(ii) at the Exchange Date such cash deposit unconditionally and irrevocably will
be applied by Seller in full satisfaction of Purchaser's obligation under the
forward purchase contract, and Seller will deliver to Purchaser the number of
Contract Shares that Purchaser is entitled to receive at that time pursuant to
the terms of this Agreement (subject to Seller's right to deliver cash and/or
other property as provided in this Agreement in lieu of the Contract Shares);
(b) it will treat, consistent with the above characterization,
amounts paid to Seller in respect of this Agreement as allocable in their
entirety to the amount of the cash deposit attributable to such Agreement;
(c) it will not treat this Agreement, any portion of this
Agreement or any obligation hereunder as giving rise to any interest income or
other inclusions of ordinary income (in the case of Purchaser) or as giving rise
to any interest expense or other deductions of ordinary expense (in the case of
Seller);
(d) it will not treat the delivery of any portion of the
Contract Shares, cash or Reported Securities to be delivered pursuant to this
Agreement as the payment of interest or ordinary income; and
(e) it will not take any action (including filing any tax
return or form or taking any position in any tax proceeding) that is
inconsistent with the obligations contained in clauses (a) through (d), unless
such action or position is required by an applicable taxing authority or unless
such action or position is required by a change in statutory law or regulation
or by a judicial or other authoritative interpretation of the law enacted,
promulgated or published after the date of this Agreement.
5.3 LIMITATIONS ON TRADING DURING CERTAIN DAYS. Seller hereby
agrees that it will not, and will cause each of its Affiliates that is under its
control not to, buy or sell shares of Class A Common Stock of the Company or
Reported Securities for its own account during the 60 days prior to the Exchange
Date except for the purchase of Class A Common Stock or Reported Securities
under stock options held by Seller provided that Seller does not resell any
shares acquired upon exercise of such stock options during such 60-day period.
5.4 NOTICES. Seller will cause to be delivered to Purchaser:
(a) immediately upon the occurrence of any Event of Default
hereunder or under the Collateral Agreement; and
(b) promptly after Seller receives notice, or otherwise
obtains knowledge, at any time prior to the Exchange Date that any event
requiring that an adjustment be effected pursuant to Article VI hereof shall
have occurred or be pending;
a notice identifying such event and stating, if known
to Seller, the date on which such event is to occur and, if applicable, the
record date relating to such event. Seller shall cause further notices to be
delivered to Purchaser if Seller shall subsequently receive notice, or shall
otherwise obtain knowledge, of any further or revised information regarding
the terms or timing of such event or any record date relating thereto.
5.5. AFFIRMATIVE COVENANTS. During the term of this Agreement,
Seller covenants and agrees that it will:
(a) Comply in all material respects with all applicable laws,
rules, regulations and orders to the extent noncompliance would have a material
adverse effect on the ability of any Seller to perform its obligations hereunder
or under the Collateral Agreement, such compliance to include, without
limitation, paying before the same become delinquent all taxes, assessments and
governmental charges imposed upon Seller or upon Seller's property, including
the collateral pledged under the Collateral Agreement, except to the extent
contested in good faith.
(b) Furnish to Purchaser as soon as possible and in any event
within twenty calendar days after Seller shall become aware of the occurrence of
any failure by Seller to comply with or perform any agreement or obligation
contained in this Agreement or the Collateral Agreement, a statement of Seller
describing such failure and setting forth details of such failure and the action
which Seller has taken and proposes to take with respect thereto.
5.6 FURTHER ASSURANCES. From time to time on and after the
date hereof through the Exchange Date (or, if later, the date on which this
Agreement has been fully performed), each of the parties hereto shall use its
reasonable best efforts to take, or cause to be taken, all action and to do, or
cause to be done, all things necessary, proper and advisable to consummate and
make effective as promptly as practicable the transactions contemplated by this
Agreement in accordance with the terms and conditions hereof, including (i)
using reasonable best efforts to remove any legal impediment to the consummation
of such transactions and (ii) the execution and delivery of all such deeds,
agreements, assignments and further instruments of transfer and conveyance
necessary, proper or advisable to consummate and make effective the transactions
contemplated by the Agreement in accordance with the terms and conditions
hereof.
ARTICLE VI
ADJUSTMENT OF EXCHANGE RATE, EXCHANGE PRICE AND CLOSING PRICE
6.1 DILUTION ADJUSTMENTS. The Exchange Rate, Exchange Price
and Closing Price shall be subject to adjustment successively from time to time
as follows:
(a) STOCK DIVIDENDS, SPLITS, RECLASSIFICATIONS, ETC. If the
Company shall, after the date hereof,
(i) pay a stock dividend or make a distribution, in either
case, with respect to Class A Common Stock in shares of such stock;
(ii) subdivide or split its outstanding shares of Class A
Common Stock into a greater number of shares;
(iii) combine its outstanding shares of Class A Common Stock
into a smaller number of shares;
(iv) issue by reclassification (other than a reclassification
pursuant to clause (b), (c), (d) or (e) of the definition of Adjustment
Event) of its shares of Class A Common Stock any other equity
securities of the Company; or
(v) be acquired by, consolidate with or merge into any other
entity in a transaction in which the holders of Class A Common Stock
receive common stock in exchange for their shares of Class A Common
Stock,
then, in the case of (i) through (iv), the Exchange Rate shall be multiplied by
a Dilution Adjustment equal to the number of shares of Class A Common Stock (or
the fraction thereof) that a holder who held one share of Class A Common Stock
immediately prior to such event would be entitled solely by reason of such event
to hold immediately after such event. In the case of (v), the Exchange Rate
shall be multiplied on the Exchange Date by a Dilution Adjustment equal to (x)
the number of shares of Class A Common Stock otherwise deliverable hereunder
plus (y) the number of shares of Class A Common Stock (including fractions of
shares) with a Closing Price as of the date of such acquisition, consolidation
or merger equal to [0.] times the amount of dividends, if any, that would have
been paid on the number of shares of such common stock received per share of
Class A Common Stock in connection with such transaction, for the period from
the date of such acquisition, consolidation or merger to the Exchange Date, at
the announced dividend rate for the common stock of the Person that is
consolidating or merging with the Company and that is received in such
transaction at the date of the consummation of such transaction; PROVIDED
that the Exchange Rate shall not be adjusted pursuant to clause (v) above to
more than one share of Class A Common Stock per DECS prior to the application
of all other adjustments to the Exchange Rate or the Share Components
provided by this Agreement.
In the case of the reclassification of any shares of Class A
Common Stock into any other equity securities of the Company other than the
Class A Common Stock, such other equity securities shall be deemed shares of
Class A Common Stock for all purposes hereunder. The Exchange Price and Closing
Price shall also be adjusted in the manner described in paragraph (c).
(b) RIGHT OR WARRANT ISSUANCES. If the Company shall, after
the date hereof, issue, or declare a record date in respect of an issuance of,
rights or warrants (other than rights to purchase Class A Common Stock pursuant
to a plan for the reinvestment of dividends or interest) to all holders of Class
A Common Stock entitling them to subscribe for or purchase shares of
Class A Common Stock at a price per share less than the Market Price of the
Class A Common Stock on the Business Day next following the record date for the
determination of holders of Class A Common Stock entitled to receive such rights
or warrants, then, in each such case, the Exchange Rate shall be multiplied by
the following Dilution Adjustment: a fraction, of which the numerator shall be
(A) the number of shares of Class A Common Stock outstanding on the record date
for the issuance of such rights or warrants plus (B) the number of additional
shares of Class A Common Stock offered for subscription or purchase pursuant to
such rights or warrants, and of which the denominator shall be (x) the number of
shares of Class A Common Stock outstanding on the record date for the issuance
of such rights or warrants plus (y) the number specified in clause (B) above
multiplied by the quotient of the exercise price of such rights or warrants
divided by the Market Price of the Class A Common Stock on the Business Day next
following the record date for the determination of holders of Class A Common
Stock entitled to receive such rights or warrants. To the extent that such
rights or warrants expire prior to the Exchange Date and shares of Class A
Common Stock are delivered with respect to less than all of such rights or
warrants prior to such expiration, the Exchange Rate shall be readjusted to
the Exchange Rate which would then be in effect had such adjustments for the
issuance of such rights or warrants been made upon the basis of delivery of
only the number of shares of Class A Common Stock actually delivered pursuant
to such rights or warrants. For purposes of this Section 6.1(b), dividends
will be deemed to be paid as of the record date for such dividend. The
Exchange Price and Closing Price shall also be adjusted in the manner
described in paragraph (c).
(c) CORRESPONDING ADJUSTMENTS TO EXCHANGE PRICE; ADJUSTMENT OF
CLOSING PRICE IN CERTAIN CIRCUMSTANCES.
(i) If any adjustment is made to the Exchange Rate pursuant to
paragraph (a) or (b) of this Section 6.1, an adjustment shall also be
made to the Exchange Price as such term is used throughout the
definition of Exchange Rate. The required adjustment to the Exchange
Price shall be made at the Exchange Date by multiplying the Exchange
Price by the cumulative Dilution Adjustment.
(ii) If, during any Calculation Period used in calculating the
Exchange Price, the Market Price or the Transaction Value, there shall
occur any event requiring an adjustment to be effected pursuant to this
Section 6.1, then the Closing Price for each Trading Day in the
Calculation Period occurring prior to the day on which such adjustment
is effected shall be adjusted by being divided by the relevant Dilution
Adjustment.
(d) TIMING OF DILUTION ADJUSTMENTS. Each Dilution Adjustment
shall be effected:
(i) in the case of any dividend, distribution, or issuance of
rights or warrants, at the opening of business on the Business Day next
following the record date for determination of holders of Class A
Common Stock entitled to receive such dividend, distribution or
issuance or, if the announcement of any such dividend, distribution or
issuance is after such record date, at the time such dividend,
distribution or issuance shall be announced by the Company; and
(ii) in the case of any subdivision, split, combination or
reclassification, on the effective date of such transaction.
(e) GENERAL; FAILURE OF DILUTION EVENT TO OCCUR. All Dilution
Adjustments shall be rounded upward or downward to the nearest
1/10,000th (or if there is not a nearest 1/10,000th to the next higher
1/10,000th). No adjustment in the Exchange Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent
therein; provided, however, that any adjustments which by reason of this
sentence are not required to be made shall be carried forward and taken into
account in any subsequent adjustment. If any announcement or declaration of a
record date in respect of a dividend, distribution or issuance requiring an
adjustment pursuant to this Section 6.1 shall subsequently be canceled by the
Company, or such dividend, distribution or issuance shall fail to receive
requisite approvals or shall fail to occur for any other reason, then, upon such
cancellation, failure of approval or failure to occur, the Exchange Rate shall
be readjusted to the Exchange Rate which would then have been in effect had
adjustment for such event not been made. If an Adjustment Event shall occur
after the occurrence of one or more events requiring an adjustment pursuant to
this Section 6.1, the Dilution Adjustments previously applied to the Exchange
Rate in respect of such events shall not be rescinded but shall be applied to
the new Exchange Rate provided for under Section 6.2.
6.2 ADJUSTMENT FOR CONSOLIDATION, MERGER OR OTHER ADJUSTMENT
EVENT. In the event of (a) any dividend or distribution by the Company to all
holders of Class A Common Stock of evidences of its indebtedness or other assets
(excluding any dividends or distributions referred to in Section 6.1(a)(i), any
other equity securities issued pursuant to a reclassification referred to in
Section 6.1(a)(iv) and any Ordinary Cash Dividends) or any issuance by the
Company to all holders of Class A Common Stock of rights or warrants to
subscribe for or purchase any of its securities (other than rights or warrants
referred to in Section 6.1(b)), (b) any consolidation or merger of the Company
with or into another entity (other than a merger or consolidation in which the
Company is the continuing corporation and in which the Class A Common Stock
outstanding immediately prior to the merger or consolidation is not exchanged
for cash, securities or other property of the Company or another corporation),
(c) any sale, transfer, lease or conveyance to another corporation of the
property of the Company as an entirety or substantially as an entirety, (d) any
statutory exchange of securities of the Company with another corporation (other
than in connection with a merger or acquisition) or (e) any liquidation,
dissolution or winding up of the Company (any such event described in clause
(a), (b), (c), (d) or (e), an "ADJUSTMENT EVENT"), the Exchange Rate shall be
adjusted so that on the Exchange Date Seller shall deliver to Purchaser, in lieu
of or (in the case of an Adjustment Event described in clause (a) above) in
addition to, the Contract Shares, cash in an amount equal to:
(A) if the Exchange Price is greater than the Threshold
Appreciation Price, [ ] multiplied by the Transaction Value
(as defined below);
(B) if the Exchange Price is less than or equal to the Threshold
Appreciation Price but greater than the Initial Price, the
product of (x) the Initial Price divided by the Exchange Price
multiplied by (y) the Transaction Value; and
(C) if the Exchange Price is less than or equal to the Initial Price,
the Transaction Value;
PROVIDED, HOWEVER, that if the consideration received by all
holders of Class A Common Stock in such Adjustment Event does not and may not at
the option of such holders
include Reported Securities, then (except in the case of an Adjustment Event
solely of the type described in clause (a) above) (i) Seller's delivery
obligations hereunder will be accelerated and promptly upon consummation of the
Adjustment Event Seller will be required to deliver to Purchaser cash in an
amount equal to (x) if the Transaction Value is greater than the Threshold
Appreciation Price, [ ] multiplied by the Transaction Value, (y) if the
Transaction Value is less than or equal to the Threshold Appreciation Price but
greater than Initial Price, the Initial Price of the Contract Shares, and (z) if
the Transaction Value is less than or equal to the Initial Price, the
Transaction Value of the Contract Shares.
Following the occurence of an Adjustment Event, the
Exchange Price, as such term is used throughout the definition of Exchange
Rate, shall be deemed to equal (A) if shares of Class A Common Stock are
outstanding at the Exchange Date, the Exchange Price of the Class A Common
Stock, as adjusted pursuant to Section 6.1(c), otherwise zero, plus (B) the
Transaction Value.
Notwithstanding the foregoing, with respect to any Reported
Securities (as defined below) received by holders of Class A Common Stock in an
Adjustment Event, Seller shall, in lieu of delivering cash in respect of such
Reported Securities as described above, deliver a number of such Reported
Securities with a value, as determined in accordance with clause (ii) of the
definition of Transaction Value, equal to all cash amounts that would otherwise
be deliverable in respect of Reported Securities received in such Adjustment
Event, except to the extent Seller has made an election to exercise the Cash
Delivery Option or such Reported Securities have not yet been delivered to the
holders entitled thereto following such Adjustment Event or any record date with
respect thereto. If, following any Adjustment Event, any Reported Security
ceases to qualify as a Reported Security, then (x) Seller shall not deliver such
Reported Security but instead shall deliver of an equivalent amount of cash and
(y) notwithstanding clause (ii) of the definition of Transaction Value, the
Transaction Value of such Reported Security shall mean the fair market value of
such Reported Security on the date such security ceases to qualify as a Reported
Security, as determined by a nationally recognized investment banking firm
retained for this purpose by the Administrator.
"TRANSACTION VALUE" means (i) for any cash received in any
Adjustment Event, the amount of cash received per share of Class A Common Stock,
(ii) for any Reported Securities received in any Adjustment Event, an amount
equal to (x) the average Closing Price per security of such Reported Securities
on the 20 Trading Days immediately prior to (but not including) the Exchange
Date multiplied by (y) the number of such Reported Securities (as adjusted
pursuant to the definition thereof) received per share of Class A Common Stock
and (iii) for any property received in any Adjustment Event other than cash or
Reported Securities, an amount equal to the fair market value of the property
received per share of Class A Common Stock on the date such property is
received, as determined by a nationally recognized investment banking firm
retained for this purpose by the Administrator; provided, however, that in the
case of clause (ii), (x) with respect to securities that are Reported Securities
by virtue of only clause (iv) of the definition of Reported Securities,
Transaction Value with respect to any such Reported Security means the average
of the mid-point of the last bid and ask prices for such Reported Security as of
the Exchange Date from each of at least three nationally recognized investment
banking firms
retained for such purpose by the Administrator multiplied by the number of such
Reported Securities (as adjusted pursuant to the definition thereof) received
per share of Class A Common Stock and (y) with respect to all other Reported
Securities, if there are not 20 Trading Days for any particular Reported
Security occurring after the 60th calendar day immediately prior to, but not
including, the Exchange Date, Transaction Value with respect to such Reported
Security means the fair market value per security of such Reported Security as
of the Exchange Date as determined by a nationally recognized investment banking
firm retained for such purpose by the Administrator multiplied by the number of
such Reported Securities (as adjusted pursuant to the definition thereof)
received per share of Class A Common Stock. For purposes of calculating the
Transaction Value, any cash, Reported Securities or other property receivable in
an Adjustment Event shall be deemed to have been received immediately prior to
the close of business on the record date for such Adjustment Event or, if there
is no record date for such Adjustment Event, immediately prior to the close of
business on the effective date of such Adjustment Event.
"REPORTED SECURITIES" means any securities received in an
Adjustment Event that (A) are (i) listed on a United States national securities
exchange, (ii) reported on a United States national securities system subject to
last sale reporting, (iii) traded in the over-the-counter market and reported on
the National Quotation Bureau or similar organization, (iv) for which bid and
ask prices are available from at least three nationally recognized investment
banking firms, or (v) are immediately convertible or exchangeable at the option
of the holder thereof, on a one-for-one basis, at all times from the date of
receipt to [ ], 2003, without any requirement of payment of consideration, for
any of the securities specified in clauses (i) through (iv); and (B) are either
(x) perpetual equity securities or (y) non-perpetual equity or debt securities
with a stated maturity after the Exchange Date. The number of shares of any
Reported Securities included in the calculation of Transaction Value pursuant to
clause (ii) of the definition thereof shall be subject to adjustment if any
event that would, had it occurred with respect to the Class A Common Stock or
the Company, have required an adjustment pursuant to Section 6.1 or 6.2, shall
occur with respect to such Reported Securities or the issuer thereof subsequent
to the date the Adjustment Event is consummated. Adjustment for such subsequent
events shall be as nearly equivalent as practicable to the adjustments provided
for in Section 6.1 or 6.2, as applicable.
ARTICLE VII
ACCELERATION
If one or more of the following events (each an "EVENT OF
DEFAULT") shall occur:
(a) Seller shall commence a voluntary case or other proceeding
seeking a liquidation, reorganization or other relief with respect to itself or
its debts under any bankruptcy, insolvency or other similar law now or hereafter
in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall take any action to authorize any of the
foregoing;
(b) an involuntary case or other proceeding shall be commenced
against Seller seeking liquidation, reorganization or other relief with respect
to it or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property; or an order for relief shall be entered against any Seller under
the federal bankruptcy laws as now or hereafter in effect; or
(c) a Collateral Event of Default within the meaning of the
Collateral Agreement;
then an "ACCELERATION DATE" shall occur, Seller's rights under
Section 1.3(d), (e) (f) and (g) shall terminate immediately and (i) in
the case of clause (c), Seller shall become obligated to the extent
permitted by law to deliver to Purchaser (and shall be deemed to
instruct the Collateral Agent to deliver to the Custodian, for the
account of Purchaser, and to liquidate and turn into cash the U.S.
Government obligations and Cash Equivalents then pledged by Seller to
the extent necessary to satisfy such obligation) the Contract Shares,
in the form of the shares of Class A Common Stock then pledged by
Seller, or cash generated from the liquidation of U.S. Government
obligations and Cash Equivalents then pledged by Seller, or a
combination thereof (or, after an Adjustment Event, the alternate
consideration to be delivered, in the form of Reported Securities then
pledged, cash then pledged, cash generated from the liquidation of U.S.
Government obligations and Cash Equivalents then pledged, or a
combination thereof); or
(ii) in the case of clauses (a) or (b), Seller shall become
obligated to the extent permitted by law to deliver to Purchaser (and
shall be deemed to instruct the Collateral Agent to deliver to the
Custodian, for the account of Purchaser, and to liquidate and turn into
cash the U.S. Government obligations and Cash Equivalents then pledged
by Seller to the extent necessary to satisfy such obligation) a number
of shares of Class A Common Stock, in the form of the shares of Class A
Common Stock then pledged by Seller, or cash generated from the
liquidation of U.S. Government obligations and Cash Equivalents then
pledged by Seller, or a combination thereof (or, after an Adjustment
Event, the alternate consideration to be delivered, in the form of
Reported Securities then pledged, cash then pledged, cash generated
from the liquidation of U.S. Government obligations and Cash
Equivalents then pledged, or a combination thereof), with an aggregate
value (based on the Closing Price on the Acceleration Date) equal to
the Acceleration Value (as defined below).
"ACCELERATION VALUE" means an amount determined by the
Administrator on the basis of quotations from Independent Dealers (as defined
below). Each quotation will be for an amount that would be paid to the relevant
Independent Dealer in consideration of an agreement between Purchaser and such
Independent Dealer that would have the effect of preserving for Purchaser the
economic equivalent of the payments and deliveries that Purchaser would, but for
the occurrence of the Acceleration Date, have been entitled to receive after the
Acceleration Date hereunder (taking into account any adjustments to the Exchange
Rate that may have been effected on or prior to the Acceleration Date). On or as
soon as reasonably practicable following
the Acceleration Date, the Administrator will request each Independent Dealer to
provide its quotation as soon as reasonably practicable, but in any event within
two Business Days. The Administrator shall compute the Acceleration Value upon
receipt of each Independent Dealer's quotation, provided that if, at the close
of business on the fourth Business Day following the Acceleration Date, the
Administrator shall have received quotations from fewer than four of the
Independent Dealers, the Administrator shall compute the Acceleration Value
using the quotations, if any, it shall have received at or prior to such time.
If four quotations are provided, the Acceleration Value will be the arithmetic
mean of the two quotations remaining after disregarding the highest and lowest
quotations. (For this purpose, if more than one quotation has the same highest
or lowest value, then one of such quotations shall be disregarded.) If two or
three quotations are provided, the Acceleration Value will be the arithmetic
mean of such quotations. If one quotation is provided, the Acceleration Value
will be equal to such quotation. If no quotations are provided, the Acceleration
Value will be the aggregate value (based on the Closing Price on the
Acceleration Date) of the number of shares of Class A Common Stock (or, after an
Adjustment Event, Reported Securities, cash or a combination thereof) that would
be required to be delivered hereunder on the Acceleration Date if the Exchange
Date were redefined to be the Acceleration Date.
"INDEPENDENT DEALERS" means four nationally recognized
independent investment banking firms selected in good faith by the
Administrator.
As promptly as reasonably practicable after receipt of the
quotations on which the Acceleration Value is based (or, as the case may be,
after failure to receive any such quotations within the time period prescribed
above), Purchaser shall deliver to Seller and the Collateral Agent a notice
specifying the number of shares of Class A Common Stock (or, after an Adjustment
Event, the alternate consideration) required to be delivered by Seller.
Purchaser and Seller agree that the obligations contained in clauses (i) and
(ii) above are a reasonable pre-estimate of loss and not a penalty. Such amount
is payable for the loss of bargain and Purchaser will not be entitled to recover
additional damage as a consequence of loss resulting from an Event of Default.
ARTICLE VIII
MISCELLANEOUS
8.1 ADJUSTMENTS; SELECTION OF INDEPENDENT INVESTMENT BANKING
FIRM. Purchaser shall be responsible for the effectuation and calculation of any
adjustment pursuant to Article VI hereof and shall furnish Seller notice of any
such adjustment and shall provide Seller reasonable opportunity to review the
calculations pertaining to any such adjustment. If, pursuant to the terms and
conditions hereof, the Administrator shall be required to retain a nationally
recognized independent investment banking firm for any purpose provided herein,
such nationally recognized independent investment banking firm shall be selected
and retained by the Administrator only after consultation with Seller; provided,
however, that Seller shall be deemed to have waived his right to consult if
Seller fails to consult within five Business Days of notice being sent by the
Administrator to Seller seeking consultation. Purchaser may delegate the
effectuation and calculation of any such adjustments to its Administrator.
8.2 NOTICES. Notices to Purchaser shall be directed to it in
care of the Administrator for Purchaser, The Bank of New York, 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Telephone: (000) 000-0000, Telecopier: (212)
816-7157; notices to Seller shall be directed to care of Metromedia Fiber
Network Inc. [Address], copy to Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx (fax
no.: (000-000-0000), Attention: Xxxxxxx X. Xxxx, Esq. Notwithstanding the
foregoing, notices to a party shall be directed to such other address for
such party as shall be specified by such party in a like notice given
pursuant to this Section 8.2. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if either (i)
personally delivered (including delivery by courier service or by Federal
Express or any other nationally recognized overnight delivery service for
next day delivery) to the offices specified in the preceding sentence, in
which case they shall be deemed received on the first Business Day by which
delivery shall have been made to said offices; or (ii) sent by certified
mail, return receipt requested, in accordance with the preceding sentence, in
which case they shall be deemed received when receipted for unless
acknowledgment is refused (in which case delivery shall be deemed to have
been received on the first Business Day on which such acknowledgment is
refused). Any notice, demand or other communication to be provided by or on
behalf of Purchaser pursuant to this Agreement shall be sent to the address
of Seller, provided in this Section 8.2. Any failure by Seller or any
guardian, conservator, executor, administrator or other similarly appointed
person to receive any such notice, demand or communication shall in no way
abrogate, invalidate or otherwise affect the validity or enforceability of
the notice, demand or communication or the matters set forth therein.
8.3 COUNTERPARTS. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
8.4 ENTIRE AGREEMENT. Except as expressly set forth herein,
this Agreement constitutes the entire agreement among the parties with respect
to the subject matter hereof and supersedes all prior agreements, understandings
and negotiations, both written and oral, among the parties with respect to the
subject matter of this Agreement.
8.5 AMENDMENTS; WAIVERS. Any provision of this Agreement may
be amended or waived if, and only if, such amendment or waiver is in writing and
signed, in the case of an amendment, by Purchaser and Seller, or, in the case of
a waiver, by the party or parties against whom the waiver is to be effective. No
failure or delay by either party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by law.
8.6 NO THIRD PARTY RIGHTS; SUCCESSORS AND ASSIGNS. Except as
otherwise agreed in writing, this Agreement is not intended and shall not be
construed to create any rights in any person other than Seller and Purchaser and
their respective successors and assigns and no person shall assert any rights as
third party beneficiary hereunder. Whenever any of the parties
hereto is referred to, such reference shall be deemed to include the successors
and permitted assigns of such party.
This Agreement will be binding on and enforceable against the
Seller despite the death or legal incapacity of any general partner of such
Seller.
8.7. APPLICATION OF BANKRUPTCY CODE. The parties hereto
acknowledge and agree that the Collateral Agent is a "financial institution"
within the meaning of Section 101(22) of Title 11 of the United States Code (the
"BANKRUPTCY CODE") and is acting as agent and custodian for Purchaser in
connection with this Agreement and that Purchaser is a "customer" of the
Collateral Agent within the meaning of said Section 101(22). The parties hereto
further acknowledge and agree that this Agreement is a "securities contract", as
such term is defined in Section 741(7) of the Bankruptcy Code, entitled to the
protection of Section 555 of the Bankruptcy Code.
8.8 GOVERNING LAW; JURISDICTION; SEVERABILITY; WAIVER OF JURY
TRIAL. This Agreement shall be governed by and construed in accordance with the
laws of the State of New York. For the purpose of any suit, action or proceeding
arising out of or relating to this Agreement, the parties hereto hereby
expressly and irrevocably consent and submit to the non-exclusive jurisdiction
of any United States Federal or New York State court sitting in the Borough of
Manhattan, City and State of New York, and expressly and irrevocably waive, to
the extent permitted under applicable law, any immunity from the jurisdiction
thereof and any claim or defense in such suit, action or proceeding based on a
claim of improper venue, forum non conveniens or any similar basis to which it
might otherwise be entitled. To the extent permitted by law, the
unenforceability or invalidity of any provision or provisions of this Agreement
shall not render any other provision or provisions herein contained
unenforceable or invalid. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES
HERETO HEREBY WAIVE AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS
PLAINTIFF, DEFENDANT OR OTHERWISE) ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN
RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR
BASED UPON THIS AGREEMENT OR THE SUBJECT MATTER HEREOF, IN EACH CASE WHETHER NOW
EXISTING OR HEREAFTER ARISING OR WHETHER IN CONTRACT OR TORT OR OTHERWISE. EACH
PARTY HERETO ACKNOWLEDGES THAT IT OR HE HAS BEEN INFORMED BY THE OTHER PARTY
HERETO THAT THE PROVISIONS OF THIS SECTION CONSTITUTE A MATERIAL INDUCEMENT UPON
WHICH SUCH OTHER PARTY HERETO HAS RELIED, IS RELYING AND WILL RELY IN ENTERING
INTO THIS AGREEMENT AND ANY DOCUMENT RELATED THERETO. EACH PARTY HERETO MAY FILE
AN ORIGINAL COUNTERPART OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF
THE CONSENT OF THE OTHER PARTY HERETO TO THE WAIVER OF ITS OR HIS RIGHTS TO
TRIAL BY JURY.
IN WITNESS WHEREOF, the parties have signed this Agreement as
of the date and year first above written.
PURCHASER: SELLER:
DECS TRUST VI: [METROMEDIA COMPANY]
[XXXXXXX X. XXXXXXXX]
[XXXXXX XXXXXXXXX]
By: By:
Name: Name:
Title: Title:
