EXECUTION COPY
EXHIBIT 4.2
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NOTE PURCHASE AGREEMENT
BY AND AMONG
METROMEDIA FIBER NETWORK, INC.,
XXXX X. XXXXX, XXXXX MANHATTAN 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,
XXXXX XXXXXXXXXXX
AND
XXXXXXX X. XXXXXXXX
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DATED AS OF OCTOBER 1, 2001
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS..........................................................................1
1.1 Definitions..........................................................................1
ARTICLE II PURCHASE AND SALE OF NOTES...........................................................4
2.1 Purchase and Sale of Notes...........................................................4
2.2 Notes................................................................................4
2.3 Closing..............................................................................5
2.4 Use of Proceeds......................................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF THE COMPANY........................................5
3.1 Corporate Existence and Power........................................................5
3.2 Authorization; No Contravention......................................................5
3.3 Governmental Authorization; Third Party Consents.....................................6
3.4 Binding Effect.......................................................................6
3.5 No Litigation........................................................................6
3.6 Reports; Financial Statements........................................................6
3.7 Private Offering.....................................................................7
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.....................................7
4.1 Power and Authority..................................................................7
4.2 Authorization; No Contravention......................................................7
4.3 Governmental Authorization; Third Party Consents.....................................8
4.4 Binding Effect.......................................................................8
4.5 Purchase for Own Account.............................................................8
4.6 Restricted Securities................................................................9
4.7 Accredited Investor..................................................................9
ARTICLE V CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE............................9
5.1 Representation and Warranties........................................................9
5.2 Compliance with this Agreement.......................................................9
5.3 Secretary's Certificate..............................................................9
5.4 Purchased Notes.....................................................................10
5.5 Registration Rights Agreement.......................................................10
5.6 Opinion of Counsel..................................................................10
5.7 Stockholders' Consent...............................................................10
5.8 No Material Adverse Change..........................................................10
5.9 No Material Judgment or Order.......................................................10
5.10 No Litigation.......................................................................10
5.11 Compliance with Indentures..........................................................10
5.12 Other Transactions..................................................................11
ARTICLE VI CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE................................11
6.1 Representations and Warranties. ...................................................11
6.2 Payment of Purchase Price...........................................................11
6.3 Compliance with Indentures..........................................................11
ARTICLE VII INDEMNIFICATION.....................................................................11
7.1 Indemnification by the Company......................................................11
7.2 Notification........................................................................12
7.3 Contribution........................................................................13
ARTICLE VIII AFFIRMATIVE COVENANTS...............................................................13
8.1 Proxy or Information Statement......................................................13
8.2 Requisite Company Vote..............................................................14
ARTICLE IX TERMINATION OF AGREEMENT............................................................15
9.1 Termination.........................................................................15
9.2 Survival............................................................................15
ARTICLE X MISCELLANEOUS.......................................................................16
10.1 Survival of Representations and Warranties..........................................16
10.2 Notices.............................................................................16
10.3 Successors and Assigns; Third Party Beneficiaries...................................17
10.4 Amendment and Waiver................................................................18
10.5 Counterparts........................................................................18
10.6 Headings............................................................................18
10.7 GOVERNING LAW.......................................................................18
10.8 Severability........................................................................18
10.9 Rules of Construction...............................................................18
10.10 Entire Agreement....................................................................18
10.11 Further Assurances..................................................................19
EXHIBITS
A Form of Note
B Form of Registration Rights Agreement
C Form of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx Opinion
SCHEDULES
2.1 Purchased Notes and Purchase Price
3.5 Litigation
ii
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of October 1, 2001 (this
"AGREEMENT"), by and among METROMEDIA FIBER NETWORK, INC., a Delaware
corporation (the "COMPANY"), Xxxx X. Xxxxx, Chase Manhattan Bank and Xxxxxx
Xxxxxxxxx, trustees under a Trust Agreement, dated May 30, 1984 and as amended
and restated, between Xxxx X. Xxxxx, as grantor, and Xxxx X. Xxxxx and
Manufacturers Hanover Trust Company, as trustees, a grantor trust (the "XXXXX
TRUST"), XXXXX XXXXXXXXXXX ("XXXXXXXXXXX") and XXXXXXX X. XXXXXXXX ("XXXXXXXX"
and, together with the Xxxxx Trust and Rockefeller, the "PURCHASERS").
WHEREAS, upon the terms and conditions set forth in this
Agreement, the Company proposes to issue and sell to each Purchaser certain 8.5%
senior convertible promissory notes substantially in the form of EXHIBIT A
attached hereto (each, a "NOTE" and collectively, the "NOTES"), which Notes (a)
shall be convertible into shares of class A common stock, par value $0.01 per
share ("COMMON STOCK"), of the Company and (b) shall be in the aggregate
principal amounts set forth opposite such Purchaser's name on SCHEDULE 2.1
attached hereto;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the meanings
indicated:
"AFFILIATE" means any Person who is an "affiliate" as defined
in Rule 12b-2 of the General Rules and Regulations under the Exchange Act. In
addition, any partner or member, as the case may be, of a Purchaser shall be
deemed to be an Affiliate of such Purchaser.
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"BOARD OF DIRECTORS" means the board of directors of the
Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"BY-LAWS" means the by-laws of the Company as in effect on the
Closing Date, as the same may be amended from time to time.
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"CITICORP FACILITY" means a $150 million note facility led by
Citicorp USA, Inc.
"CLAIMS" has the meaning set forth in Section 3.5 of this
Agreement.
"CLASS B COMMON STOCK" means the class B common stock, par
value $.01 per share, of the Company.
"CLOSING" has the meaning set forth in Section 2.3 of this
Agreement.
"CLOSING DATE" has the meaning set forth in Section 2.3 of
this Agreement.
"CERTIFICATE OF INCORPORATION" means the Certificate of
Incorporation of the Company as in effect on the Closing Date, as the same may
be amended from time to time.
"COMMISSION" means the United States Securities and Exchange
Commission.
"COMMON STOCK" has the meaning set forth in the recitals to
this Agreement.
"COMPANY" has the meaning set forth in the preamble to this
Agreement.
"COMPANY SEC REPORTS" has the meaning set forth in Section 3.6
of this Agreement.
"COMPANY STOCKHOLDERS' MEETING" has the meaning set forth in
Section 8.1 of this Agreement.
"CONDITION OF THE COMPANY" means the assets, business,
properties, prospects, operations or condition (financial or otherwise) of the
Company.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"XXXXXXXX" has the meaning set forth in the preamble to this
Agreement.
"GOVERNMENTAL AUTHORITY" means the government of any nation,
state, city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other entity
owned or controlled, through stock or capital ownership or otherwise, by any of
the foregoing.
"INDEMNIFYING PARTY" has the meaning set forth in Section 7.1
of this Agreement.
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"INDEMNIFIED PARTY" has the meaning set forth in Section 7.1
of this Agreement.
"INDENTURES" means (i) the Indenture, dated as of November 25,
1998, by and between the Company and The of New York, as successor to IBJ
Xxxxxxxx Bank & Trust Company, as trustee, and (ii) the Indenture, dated as of
November 17, 1999, by and between the Company and The Bank of New York, as
trustee.
"INFORMATION STATEMENT" has the meaning set forth in Section
8.1 of this Agreement.
"XXXXX TRUST" has the meaning set forth in the preamble to
this Agreement.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other) or preference,
priority, right or other security interest or preferential arrangement of any
kind or nature whatsoever (excluding preferred stock and equity related
preferences).
"LOSSES" has the meaning set forth in Section 7.1 of this
Agreement.
"NOTE" has the meaning set forth in the recitals to this
Agreement.
"NORTEL FINANCING" means a financing arrangement of not less
than $200 million between Nortel Networks, Inc., as lender, on the one hand, and
the Company or Metromedia Fiber Network Service, Inc., a Delaware corporation
that is a wholly-owned subsidiary of the Company, as borrower, on the other
hand.
"ORDERS" has the meaning set forth in Section 3.2 of this
Agreement.
"PERSON" means any individual, firm, corporation, partnership,
trust, incorporated or unincorporated association, joint venture, joint stock
company, limited liability company, limited liability partnership, Governmental
Authority or other entity of any kind, and shall include any successor (by
merger or otherwise) of such entity.
"PROXY STATEMENT" has the meaning set forth in Section 8.1 of
this Agreement.
"PURCHASED NOTES" has the meaning set forth in Section 2.1 of
this Agreement.
"PURCHASERS" has the meaning set forth in the preamble to this
Agreement.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement substantially in the form of EXHIBIT B attached hereto.
"REQUIREMENTS OF LAW" means, as to any Person, any law,
statute, treaty, rule, regulation, right, privilege, qualification, license or
franchise or determination of an
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arbitrator or a court or other Governmental Authority or stock exchange, in each
case applicable or binding upon such Person or any of its property or to which
such Person or any of its property is subject or pertaining to any or all of the
transactions contemplated or referred to herein.
"REQUISITE COMPANY VOTE" shall mean (i) the approval and
ratification of the issuance of shares of Common Stock issuable upon the
conversion of the Notes by a majority of holders of Common Stock and Class B
Common Stock, voting as a single class, that are present in person or by proxy
at a duly called meeting of Company's stockholders, or (ii) the 20th day
following the proper delivery by the Company under Regulation 14C under the
Exchange Act of an effective Information Statement meeting the requirements of
Schedule 14C under the Exchange Act that contains the requisite information
describing the action taken by the Stockholders' Consent.
"ROCKEFELLER" has the meaning set forth in the preamble to
this Agreement.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
"STOCKHOLDERS' CONSENT" means the duly authorized and executed
written consent in lieu of a meeting of the stockholders of the Company in
accordance with Section 228 of the Delaware General Corporation Law, as amended,
executed by Metromedia Company, Xxxxxxxx and Xxxxxx Xxxxxxxxx, each in his or
its capacities as stockholders of the Company, approving and authorizing, among
other things, the actions required to be taken by the Company in connection with
this Agreement, including, without limitation, the reservation for issuance,
issuance, sale and delivery of the shares of Common Stock issuable upon
conversion of the Notes for the purposes of the applicable rules and regulations
of The Nasdaq Stock Market, Inc.
"TRANSACTION DOCUMENTS" means, collectively, this Agreement,
the Registration Rights Agreement and the Purchased Notes.
ARTICLE II
PURCHASE AND SALE OF NOTES
2.1 PURCHASE AND SALE OF NOTES. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each
Purchaser, and each Purchaser severally agrees to purchase from the Company, on
the Closing Date, the principal amount of Notes set forth opposite such
Purchaser's name on SCHEDULE 2.1 hereto, for the purchase price set forth
opposite such Purchaser's name on SCHEDULE 2.1 hereto (all of the Notes being
purchased pursuant hereto being referred to herein as the "PURCHASED NOTES").
2.2 NOTES. The Purchased Notes shall have the terms and
conditions (including interest rates) set forth in the Notes.
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2.3 CLOSING. Unless this Agreement shall have terminated
pursuant to Article IX, and subject to the satisfaction or waiver of the
conditions set forth in Articles V and VI, the closing of the sale and purchase
of the Purchased Notes (the "CLOSING") shall take place at the offices of Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 10:00 a.m., local time, on the first Business Day following the
date upon which the conditions set forth in Articles V and VI shall be satisfied
or waived in accordance with this Agreement, or at such other time, place and
date that the Company and the Purchasers may agree in writing (the "CLOSING
DATE"). On the Closing Date, the Company shall deliver to each of the Purchasers
a fully executed Note or Notes being purchased by such Purchaser against
delivery by each of the Purchasers to the Company of the aggregate purchase
price therefor by wire transfer of immediately available funds.
2.4 USE OF PROCEEDS. The Company shall use all of the proceeds
from the sale of the Purchased Notes to the Purchasers (a) to fund the cost of
the engineering, construction, installation, acquisition, lease, development or
improvement of telecommunications assets, and (b) assuming it is permitted under
each of the Indentures, for general corporate and working capital purposes.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to each of the Purchasers
as follows:
3.1 CORPORATE EXISTENCE AND POWER. The Company (a) is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware, (b) has the corporate power and authority to execute,
deliver and perform its obligations under this Agreement and each of the other
Transaction Documents and (c) is duly qualified and authorized to do business
and is in good standing in all jurisdictions where it is required to be so
qualified.
3.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by the Company of this Agreement and each of the other
Transaction Documents and the transactions contemplated hereby and thereby (a)
have been duly authorized by all necessary corporate action of the Company, (b)
do not contravene the terms of the Certificate of Incorporation or the By-laws,
(c) do not violate any judgment, injunction, writ, award, decree or order of any
nature (collectively, "ORDERS") of any Governmental Authority against, or
binding upon, the Company and (d) do not conflict with, or result in any breach
or violation of any of the terms, covenants, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of (or the
obligation to create or impose) any Lien upon any of the property or assets of
the Company pursuant to the terms of, any indenture, mortgage, deed of trust or
other material instrument or agreement to which the Company is a party or by
which it or any of its properties or assets is bound or to which it may be
subject.
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3.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No
approval, consent, compliance, exemption, license, authorization or other action
by, or notice to, or filing with, any Governmental Authority or any other
Person, and no lapse of a waiting period under a Requirement of Law, is
necessary or required in connection with (i) the execution, delivery or
performance (including, without limitation, the sale, issuance and delivery of
the Purchased Notes) by, or enforcement against, the Company of this Agreement
and the other Transaction Documents or the transactions contemplated hereby and
thereby or (ii) the legality, validity, binding effect or enforceability of the
Transaction Documents.
3.4 BINDING EFFECT. This Agreement has been and, as of the
Closing Date, each of the other Transaction Documents will have been, duly
executed and delivered by the Company, and this Agreement constitutes and, as of
the Closing Date, each of the other Transaction Documents will constitute the
legal, valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
3.5 NO LITIGATION. Except as set forth on SCHEDULE 3.5, no
actions, suits, proceedings, claims, complaints, disputes, arbitrations or
investigations or written threats thereof (collectively, "CLAIMS") have been
brought or have otherwise arisen at law, in equity, in arbitration or before any
Governmental Authority against the Company which would, if adversely determined,
have a material adverse effect on the ability of the Company to perform its
obligations under this Agreement or any of the Transaction Documents. No Order
has been issued by any court or other Governmental Authority against the Company
purporting to enjoin or restrain the execution, delivery or performance of this
Agreement or any of the other Transaction Documents.
3.6 REPORTS; FINANCIAL STATEMENTS.
(a) As of the respective dates of their filing with the
Commission, all reports, registration statements and other filings, together
with any amendments thereto (the "COMPANY SEC REPORTS") complied, and all such
reports, registration statements and other filings to be filed by the Company
with the Commission prior to the Closing Date will comply, in all material
respects with the applicable requirements of the Securities Act and the Exchange
Act, and did not at the time they were filed with the Commission, or will not at
the time they are filed with the Commission, contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(b) The consolidated financial statements (including, in
each case, any related notes thereto) contained in the Company SEC Reports and
in any such reports, registration statements and other filings to be filed by
the Company with the Commission prior to the Closing Date (i) have been or will
be prepared in accordance
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with the published rules and regulations of the Commission and generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as may be indicated in the notes thereto) and (ii)
fairly present or will fairly present the consolidated financial position of the
Company and its subsidiaries as of the respective dates thereof and the
consolidated results of operations and cash flows for the periods indicated,
except that any unaudited interim financial statements were or will be subject
to normal and recurring year-end adjustments and may omit footnote disclosure as
permitted by regulations of the Commission.
3.7 PRIVATE OFFERING. No form of general solicitation or
general advertising was used by the Company or its representatives in connection
with the offer or sale of the Purchased Notes. No registration of the Purchased
Notes, pursuant to the provisions of the Securities Act or any state securities
or "blue sky" laws, will be required by the offer, sale or issuance of the
Purchased Notes. The Company agrees that neither it, nor anyone acting on its
behalf, shall offer to sell the Purchased Notes or any other securities of the
Company so as to require the registration of the Purchased Notes pursuant to the
provisions of the Securities Act or any state securities or "blue sky" laws,
unless such Purchased Notes or other securities are so registered.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants,
severally and not jointly, to the Company as follows:
4.1 POWER AND AUTHORITY. (a) If the Purchaser is an
individual, such Purchaser has the legal capacity to execute, deliver and
perform his obligations under this Agreement and to consummate the transactions
contemplated hereby.
(b) If the Purchaser is a corporation, limited liability
company, partnership or trust, such Purchaser has all necessary corporate,
limited liability company, partnership or trust power and authority to enter
into this Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby, and the execution, delivery and performance of
this Agreement by such Purchaser and the consummation by such Purchaser of the
transactions contemplated hereby have been duly authorized by all necessary
corporate, limited liability company, partnership or trust action on the part of
such Purchaser, and no other proceeding on the part of such Purchaser is
necessary to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby.
4.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by such Purchaser of this Agreement and each of the other
Transaction Documents to which it is a party and the transactions contemplated
hereby and thereby, (a) if applicable, have been duly authorized by all
necessary partnership, limited liability company or corporate, as the case may
be, action, (b) if applicable, do not contravene the terms of such Purchaser's
organizational documents, or any amendment thereof, and
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(c) do not violate any Orders of any Governmental Authority against, or binding
upon, such Purchaser.
4.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No
approval, consent, compliance, exemption, authorization or other action by, or
notice to, or filing with, any Governmental Authority or any other Person, and
no lapse of a waiting period under any Requirement of Law, is necessary or
required in connection with the execution, delivery or performance (including,
without limitation, the purchase of the Purchased Notes) by, or enforcement
against, such Purchaser of this Agreement and each of the other Transaction
Documents to which it is a party or the transactions contemplated hereby and
thereby.
4.4 BINDING EFFECT. This Agreement has been and, as of the
Closing Date, each of the other Transaction Documents to which such Purchaser is
a party will have been duly executed and delivered by such Purchaser and this
Agreement constitutes, and, as of the Closing Date, each of the other
Transaction Documents will constitute, the legal, valid and binding obligations
of such Purchaser, enforceable against it in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally or by equitable
principles relating to enforceability (regardless of whether considered in a
proceeding at law or in equity).
4.5 PURCHASE FOR OWN ACCOUNT. The Purchased Notes to be
acquired by such Purchaser pursuant to this Agreement are being or will be
acquired for its own account and with no intention of distributing or reselling
such Purchased Notes or any part thereof in any transaction that would be in
violation of the securities laws of the United States of America, or any state,
without prejudice, however, to the rights of such Purchaser at all times to sell
or otherwise dispose of all or any part of such Purchased Notes under an
effective registration statement under the Securities Act, or under an exemption
from such registration available under the Securities Act, and subject,
nevertheless, to the disposition of such Purchaser's property being at all times
within its control. If such Purchaser should in the future decide to dispose of
any of such Purchased Notes, such Purchaser understands and agrees that it may
do so only in compliance with the Securities Act and applicable state securities
laws, as then in effect. Such Purchaser agrees to the imprinting, so long as
required by law, of a legend on its Purchased Notes and shares of Common Stock
issuable upon conversion of its Purchased Notes, respectively, to the following
effect:
THE SECURITIES REPRESENTED BY THIS NOTE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES
LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS
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OR PURSUANT TO A WRITTEN OPINION OF COUNSEL FOR THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
4.6 RESTRICTED SECURITIES. Such Purchaser understands that the
Purchased Notes will not be registered at the time of their issuance under the
Securities Act for the reason that the sale provided for in this Agreement is
exempt pursuant to Section 4(2) of the Securities Act and that the reliance of
the Company on such exemption is predicated in part on such Purchaser's
representations set forth herein.
4.7 ACCREDITED INVESTOR. Such Purchaser is an "Accredited
Investor" within the meaning of Rule 501 of Regulation D under the Securities
Act, as presently in effect.
ARTICLE V
CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
The obligations of each Purchaser to purchase the Purchased
Notes, to pay the purchase price therefor at the Closing and to perform any
obligations hereunder shall be subject to the fulfillment to his or its
satisfaction, on or prior to the Closing, of each of the following conditions,
unless otherwise waived (PROVIDED, HOWEVER, that any such waiver shall not be
effective against any Purchaser who has not consented in writing thereto):
5.1 REPRESENTATION AND WARRANTIES. The representations and
warranties of the Company contained in Article III hereof shall be true and
correct (except for any such representations and warranties which are qualified
by their terms by a reference to materiality, which representation as so
qualified shall be true and correct in all respects) at and on the Closing Date
as if made at and on such date.
5.2 COMPLIANCE WITH THIS AGREEMENT. The Company shall have
performed and complied with all of its agreements set forth herein that are
required to be performed by the Company on or before the Closing Date.
5.3 SECRETARY'S CERTIFICATE. Each Purchaser shall have
received a certificate from the Company, in form and substance satisfactory to
such Purchaser, dated the Closing Date and signed by the Secretary or an
Assistant Secretary of the Company, certifying (a) that the Company is in good
standing with the Secretary of State of the State of Delaware, (b) that the
attached copies of the Certificate of Incorporation, the By-laws and resolutions
of the Board of Directors of the Company approving this Agreement and each of
the other Transaction Documents and the transactions contemplated hereby and
thereby, are all true, complete and correct and remain unamended and in full
force and effect and (c) as to the incumbency and specimen signature of each
officer of the Company executing this Agreement, each of the other Transaction
Documents and any other document delivered in connection herewith on behalf of
the Company.
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5.4 PURCHASED NOTES. The Company shall have delivered to each
of the Purchasers the Purchased Note or Purchased Notes in the principal amount
set forth opposite such Purchaser's name on Schedule 2.1 hereto.
5.5 REGISTRATION RIGHTS AGREEMENT. The Company shall have duly
executed and delivered the Registration Rights Agreement.
5.6 OPINION OF COUNSEL. Each Purchaser shall have received an
opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, dated the Closing Date,
relating to the transactions contemplated by or referred to herein, in the form
attached hereto as Exhibit C.
5.7 STOCKHOLDERS' CONSENT. The Company shall have obtained a
written consent in lieu of meeting of stockholders of the Company executed by
stockholders holding more than a majority of the Common Stock and the Class B
Common Stock, voting as a single class, entitled to vote at a meeting of
stockholders of the Company as of the date of the Closing and otherwise
represent a sufficient number of shares of Common Stock to approve the matters
set forth in the Stockholders' Consent.
5.8 NO MATERIAL ADVERSE CHANGE. Since the date hereof, there
shall have been no material adverse change in the Condition of the Company.
5.9 NO MATERIAL JUDGMENT OR ORDER. There shall not be on the
Closing Date any Order of a court of competent jurisdiction or any ruling of any
Governmental Authority or any condition imposed under any Requirement of Law
which would (a) prohibit or restrict (i) the purchase of the Purchased Notes or
(ii) the consummation of the transactions contemplated by this Agreement and the
other Transaction Documents, (b) subject the Purchasers to any material penalty
or onerous condition under or pursuant to any Requirement of Law if the
Purchased Notes were to be purchased hereunder or (c) restrict the operation of
the business of the Company as conducted on the date hereof in a manner that
would have a material adverse effect on the Condition of the Company.
5.10 NO LITIGATION. No action, suit, proceeding, claim or
dispute shall have been brought or otherwise arisen at law, in equity, in
arbitration or before any Governmental Authority against the Company which
would, if adversely determined (a) have a material adverse effect on the
Condition of the Company or (b) have a material adverse effect on the ability of
the Company to perform its obligations under this Agreement or each of the other
Transaction Documents.
5.11 COMPLIANCE WITH INDENTURES. The Company shall have (a)
obtained a written opinion satisfactory to the Purchasers as to the fairness to
the Company of the transactions contemplated hereby from an accounting,
appraisal or investment banking firm of national standing as required by Section
4.11 of each of the Indentures, (b) delivered to the trustee under each of the
Indentures the officer's certificate required by Section 4.11 of each of the
Indentures, and (c) complied with any other provisions of either of the
Indentures applicable to the transactions contemplated hereby.
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5.12 OTHER TRANSACTIONS. The Company shall have (a)
consummated the Citicorp Facility, (b) consummated the Nortel Financing and (c)
received additional funds from sources other than the Citicorp Facility and the
Nortel Financing in an aggregate amount equal to at least $230,000,000
(including the proceeds from the sale of the Purchased Notes), in each case upon
terms and subject to conditions reasonably satisfactory to the Purchasers, as to
their form and substance, and consistent with those certain commitment letters
for such financings previously delivered to the Purchasers.
ARTICLE VI
CONDITIONS TO THE OBLIGATION OF THE COMPANY TO CLOSE
The obligation of the Company to issue and sell the Purchased
Notes and the obligation of the Company to perform its other obligations
hereunder shall be subject to the satisfaction as determined by, or waiver by,
the Company of the following conditions on or before the Closing Date:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of each Purchaser contained in Article IV hereof shall be true and
correct in all material respects (except for any such representations and
warranties which are qualified by their terms by a reference to materiality,
which representation as so qualified shall be true and correct in all respects)
at and on the Closing Date as if made at and on such date.
6.2 PAYMENT OF PURCHASE PRICE. Each Purchaser shall be
prepared to pay the aggregate purchase price for the Purchased Notes to be
purchased by such Purchaser.
6.3 COMPLIANCE WITH INDENTURES. The Company shall have (a)
obtained a written opinion as to the fairness to the Company of the transactions
contemplated hereby from an accounting, appraisal or investment banking firm of
national standing as required by Section 4.11 of each of the Indentures, (b)
delivered to the trustee under each of the Indentures the officer's certificate
required by Section 4.11 of each of the Indentures and (c) complied with any
other provisions of either of the Indentures applicable to the transactions
contemplated hereby.
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY THE COMPANY. Except as otherwise
provided in this Article VII, the Company (the "INDEMNIFYING PARTY") agrees to
indemnify, defend and hold harmless each of the Purchasers and its Affiliates
and their respective officers, directors, agents, employees, subsidiaries,
partners, members and controlling persons (each, an "INDEMNIFIED PARTY") to the
fullest extent permitted by law from and against any and all losses, Claims
(including, without limitation, any Claim by a third party), damages, expenses
(including reasonable fees, disbursements and other charges of counsel incurred
by the Indemnified Party in any action between the Indemnifying Party
12
and the Indemnified Party or between the Indemnified Party and any third party
or otherwise) (collectively, "LOSSES") resulting from any breach of any
representation, warranty, covenant or agreement by the Company in this Agreement
or the other Transaction Documents. In connection with the obligation of the
Indemnifying Party to indemnify for expenses as set forth above, the
Indemnifying Party shall, upon presentation of appropriate invoices containing
reasonable detail, reimburse each Indemnified Party for all such expenses
(including reasonable fees, disbursements and other charges of counsel incurred
by the Indemnified Party in any action between the Indemnifying Party and the
Indemnified Party or between the Indemnified Party and any third party) as they
are incurred by such Indemnified Party; PROVIDED, HOWEVER, that if an
Indemnified Party is reimbursed under this Article VII for any expenses, such
reimbursement of expenses shall be refunded to the extent it is finally
judicially determined that the Losses in question resulted primarily from the
willful misconduct or gross negligence of such Indemnified Party.
7.2 NOTIFICATION. Each Indemnified Party under this Article
VII shall, promptly after the receipt of notice of the commencement of any Claim
against such Indemnified Party in respect of which indemnity may be sought from
the Indemnifying Party, under this Article VII, notify the Indemnifying Party in
writing of the commencement thereof. The failure of any Indemnified Party to so
notify the Indemnifying Party of any such action shall not relieve the
Indemnifying Party from any liability which it may have to such Indemnified
Party (a) other than pursuant to this Article VII or (b) under this Article VII
unless, and only to the extent that, such failure results in the Indemnifying
Party's forfeiture of substantive rights or defenses. In case any such Claim
shall be brought against any Indemnified Party, and it has notified the
Indemnifying Party of the commencement thereof, the Indemnifying Party shall be
entitled to assume the defense of such Claim at its own expense, with counsel
satisfactory to such Indemnified Party in its reasonable judgment; provided,
however, that any Indemnified Party may, at its own expense, retain separate
counsel to participate in such defense at its own expense. Notwithstanding the
foregoing, in any Claim in which both the Indemnifying Party, on the one hand,
and an Indemnified Party, on the other hand, are, or are reasonably likely to
become, a party, such Indemnified Party shall have the right to employ separate
counsel and to control its own defense of such Claim if, in the reasonable
opinion of counsel to such Indemnified Party, one or more defenses are available
to the Indemnified Party that are not available to the Indemnifying Party;
provided, however, that the Indemnifying Party (i) shall not be liable for the
fees and expenses of more than one counsel to all Indemnified Parties and (ii)
shall reimburse the Indemnified Parties for all of fees, disbursement and
charges of such counsel incurred in any action between the Indemnifying Party
and the Indemnified Parties or between the Indemnified Parties and any third
party, as such fees, disbursement and charges are incurred. The Indemnifying
Party agrees that it will not, without the prior written consent of the
Indemnified Party, settle, compromise or consent to the entry of any judgment in
any pending or threatened Claim relating to the matters contemplated hereby (if
any Indemnified Party is a party thereto or has been actually threatened to be
made a party thereto) unless such settlement, compromise or consent includes an
unconditional release of each Indemnified Party from all liability arising or
that may arise out of such Claim.
13
The Indemnifying Party shall not be liable for any settlement of any Claim
effected against an Indemnified Party without its written consent.
7.3 CONTRIBUTION. If the indemnification provided for in this
Article VII from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any Losses referred to herein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such Losses in
such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party and Indemnified Party in connection with the actions which
resulted in such Losses, as well as any other relevant equitable considerations.
The relative faults of such Indemnifying Party and Indemnified Party shall be
determined by reference to, among other things, whether any action in question,
including any untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact, has been made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties relative intent, knowledge, access to information and opportunity to
correct or prevent such action. The amount paid or payable by a party as a
result of the Losses referred to above shall be deemed to include, subject to
the limitations set forth in Sections 7.1 and 7.2, any legal or other fees,
disbursement or charges reasonably incurred by such party in connection with any
investigation or proceeding.
ARTICLE VIII
AFFIRMATIVE COVENANTS
The Company hereby covenants and agrees with the Purchasers as
follows:
8.1 PROXY OR INFORMATION STATEMENT.
(a) As promptly as practicable after the date hereof, the
Company shall (i) (x) duly call a special meeting of the holders of the
Company's Common Stock (the "COMPANY STOCKHOLDERS' MEETING") to be held to
consider approval of the issuance of the shares of Common Stock issuable upon
conversion of the Notes, and (y) prepare and file with the Commission a proxy
statement (the "PROXY STATEMENT") relating to the Company Stockholders' Meeting
and the approval of the shares of Common Stock issuable upon conversion of the
Notes, or (ii) prepare and file with the Commission an Information Statement
meeting the requirements of Schedule 14C under the Exchange Act (the
"INFORMATION STATEMENT") regarding, and containing the requisite information
describing, the Stockholders' Consent and the approval for the shares of Common
Stock issuable upon conversion of the Notes and other convertible securities
issued by the Company on the date hereof and containing all other applicable
information required under Regulation 14C and Schedule 14C under the Exchange
Act; PROVIDED, that it is understood and agreed, that, so long as it is
permissible under the rules and regulations of The Nasdaq Stock Market, Inc. to
obtain the approval for the shares of Common Stock issuable upon conversion of
the Notes and such other convertible securities by written consent and not at a
meeting of stockholders, the Company shall be
14
obligated to comply with the provisions of clause (ii) hereof and the other
provisions in this Section 8.1 relating to the Information Statement. The
Company shall use its reasonable best efforts to cause the Proxy Statement or
the Information Statement, as the case may be, to become cleared as promptly as
practicable by the Commission. The Company shall use its best efforts to file
the Proxy Statement or the Information Statement, as the case may be, no later
than October 5, 2001, and, to the extent applicable, to hold the Company
Stockholders' Meeting, or to cause the corporate action to be taken under the
Stockholders' Consent to be effective by, no later than November 15, 2001. Each
Purchaser or the Company, as the case may be, shall furnish all information
concerning such Purchaser or the Company as the other parties may reasonably
request in connection with such actions and the preparation of the Proxy
Statement or the Information Statement, as the case may be. As promptly as
practicable (but, in any event, within two (2) Business Days) after the Proxy
Statement or the Information Statement, as the case may be, is (or is deemed)
cleared by the Commission, the Company shall cause the Proxy Statement or the
Information Statement, as the case may be, to be mailed to the stockholders of
the Company. The Company shall cause the Proxy Statement or the Information
Statement, as the case may be, to comply as to form and substance in all
material respects with the applicable requirements of (i) the Exchange Act,
including the applicable provisions of Sections 14(a), 14(c) and 14(d) thereof
and the respective regulations promulgated thereunder, and (ii) applicable rules
and regulations of The Nasdaq Stock Market, Inc. In connection with the
preparation, filing and delivery of the Proxy Statement or the Information
Statement, as the case may be, the Company shall comply in all material respects
with the applicable requirements of the Exchange Act, including the applicable
provisions of Sections 14(a), 14(c) and 14(d) thereof and Regulations 14A, 14C
and 14D thereunder.
(b) To the extent applicable, the Company will, through the
Board of Directors, unanimously recommend, and the Proxy Statement shall include
the unanimous and unconditional recommendation of the Board of Directors, to the
stockholders of the Company that they vote, as required by The Nasdaq Stock
Market, Inc., in favor of the issuance of the shares of Common Stock issuable
upon conversion of the Notes.
(c) To the extent applicable, the Company shall call and hold
the Company Stockholders' Meeting as promptly as practicable after the mailing
date of the Proxy Statement for the purpose of voting upon the issuance of the
shares of Common Stock issuable upon conversion of the Notes. To the extent
applicable, the Company shall use its reasonable best efforts (through its
agents or otherwise) to solicit from its stockholders proxies in favor of the
issuance of the shares of Common Stock issuable upon conversion of the Notes.
8.2 REQUISITE COMPANY VOTE.
(a) The Company shall take all other actions necessary to
secure the Requisite Company Vote.
15
(b) Within two (2) Business Days of obtaining the Requisite
Company Vote, the Company shall provide written notice thereof to each
Purchaser.
ARTICLE IX
TERMINATION OF AGREEMENT
9.1 TERMINATION. This Agreement may be terminated prior to the
Closing as follows:
(a) at any time on or prior to the Closing Date, by mutual
written consent of the Company and each of the Purchasers;
(b) at the election of the Company or, with respect to a
Purchaser, at the election of such Purchaser, by written notice to the other
parties hereto after 5:00 p.m., New York time, on or after November 1, 2001, if
the Closing shall not have occurred, unless such date is extended by the mutual
written consent of the Company and each of the Purchasers; PROVIDED, HOWEVER,
that the right to terminate this Agreement under this Section 9.1(b) shall not
be available (i) to any party whose breach of any representation, warranty,
covenant or agreement under this Agreement has been the cause of, or resulted
in, the failure of the Closing to occur on or before such date or (ii) if the
Closing has not occurred solely because any party hereto has not yet obtained a
necessary approval from any governmental authority;
(c) at the election of the Company, with respect to a
Purchaser, if there has been a material breach of any representation, warranty,
covenant or agreement on the part of such Purchaser contained in this Agreement,
which breach has not been cured within fifteen Business Days after notice to
such Purchaser of such breach; or
(d) with respect to a Purchaser, at the election of such
Purchaser, if there has been a material breach of any representation, warranty,
covenant or agreement on the part of the Company contained in this Agreement,
which breach has not been cured within fifteen Business Days after notice to the
Company of such breach.
If this Agreement so terminates, it shall become null and void and have no
further force or effect, except as provided in Section 9.2.
9.2 SURVIVAL. If this Agreement is terminated and the
transactions contemplated hereby are not consummated as described above, this
Agreement shall become void and of no further force and effect, except for the
provisions of Article I and this Section 9.2; PROVIDED, HOWEVER, that (a) none
of the parties hereto shall have any liability in respect of a termination of
this Agreement pursuant to Section 9.1(a) or Section 9.1(b) and (b) nothing
shall relieve any of the parties from liability for actual damages resulting
from a termination of this Agreement pursuant to Section 9.1(c) or 9.1(d); and
PROVIDED, FURTHER, that none of the parties hereto shall have any liability for
speculative, indirect, unforeseeable or consequential damages or lost profits
resulting from any legal action relating to any termination of this Agreement.
16
ARTICLE X
MISCELLANEOUS
10.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties made herein shall survive the execution and
delivery of this Agreement until the first anniversary of the Closing Date.
10.2 NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier
(with a copy also sent by registered or certified first-class mail), overnight
courier service or personal delivery:
(a) if to the Company:
Metromedia Fiber Network, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
(b) if to the Xxxxx Trust:
c/o Metromedia Company
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Metromedia Company
Xxx Xxxxxxxxxxx Xxxxx
Xxxx Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile: (000) 000-0000
17
(c) if to Rockefeller:
Xxxxx Xxxxxxxxxxx
c/o Xxxxxxx XxXxxxxx
00 Xxxxxxxxxxx Xxxxx, Xxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
Facsimile: (000) 000-0000
(c) if to Xxxxxxxx:
Xxxxxxx X. Xxxxxxxx
c/o Metromedia Fiber Network, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
& Affiliates
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxxxxx
Facsimile: (000) 000-0000
All such notices, demands and other communications shall be
deemed to have been duly given when delivered by hand, if personally delivered;
in five Business Days, if sent by first-class mail; when receipt is
electronically confirmed, if sent by facsimile; and in one Business Day, if
delivered by overnight courier service.
10.3 SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. Subject to applicable securities laws
and the terms and conditions thereof, the Purchasers may assign any of their
rights under this Agreement or the other Transaction Documents to any of their
respective Affiliates. The Company may not assign any of its rights under this
Agreement without the written consent of the Purchasers. Except as provided in
Article VII, no Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.
18
10.4 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of the Company or the
Purchasers in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Company or the Purchasers at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by the Company or the Purchasers from the terms of
any provision of this Agreement, shall be effective (i) only if it is made or
given in writing and signed by the Company and each of the Purchasers and (ii)
only in the specific instance and for the specific purpose for which made or
given.
10.5 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
10.6 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
10.8 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
10.9 RULES OF CONSTRUCTION. Unless the context otherwise
requires, references to articles, sections or subsections refer to articles,
sections or subsections of this Agreement.
10.10 ENTIRE AGREEMENT. This Agreement, together with the
exhibits and schedules hereto, and the other Transaction Documents are intended
by the parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein and therein.
There are no restrictions, promises, representations, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement, together with the exhibits and schedules hereto, and the other
19
Transaction Documents supersede all prior agreements and understandings between
the parties with respect to such subject matter.
10.11 FURTHER ASSURANCES. Each of the parties hereto shall
execute such documents and perform such further acts (including, without
limitation, obtaining any consents, exemptions, authorizations or other actions
by, or giving any notices to, or making any filings with, any Governmental
Authority or any other Person) as may be reasonably required or desirable to
carry out or to perform the provisions of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
20
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
COMPANY:
METROMEDIA FIBER NETWORK, INC.
By: /s/ Xxxx Xxxxx
--------------------------------
Name: Xxxx Xxxxx
Title: President & COO
PURCHASERS:
XXXX X. XXXXX, XXXXX
MANHATTAN 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
XXXXX XXXXXXXXXXX
By: Rockefeller & Co., Inc., as
Attorney-in-Fact
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Authorized Signatory
/s/ Xxxxxxx X. Xxxxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxxxx
SCHEDULE 2.1
PURCHASED NOTES AND PURCHASE PRICE
------------------------------------- ----------------------------------- -----------------------------------
PRINCIPAL PURCHASE
PURCHASER AMOUNT PRICE
------------------------------------- ----------------------------------- -----------------------------------
Xxxxx Trust $150,000,000 $150,000,000
------------------------------------- ----------------------------------- -----------------------------------
Xxxxx Xxxxxxxxxxx $25,000,000 $25,000,000
------------------------------------- ----------------------------------- -----------------------------------
Xxxxxxx X. Xxxxxxxx $5,000,000 $5,000,000
------------------------------------- ----------------------------------- -----------------------------------
SCHEDULE 3.5
None.
