0000950142-01-500485.txt : 20011026
0000950142-01-500485.hdr.sgml : 20011026
ACCESSION NUMBER: 0000950142-01-500485
CONFORMED SUBMISSION TYPE: SC 13D
PUBLIC DOCUMENT COUNT: 7
FILED AS OF DATE: 20011018
GROUP MEMBERS: JOHN W. KLUGE
GROUP MEMBERS: METROMEDIA COMPANY
GROUP MEMBERS: STUART SUBOTNICK
SUBJECT COMPANY:
COMPANY DATA:
COMPANY CONFORMED NAME: METROMEDIA FIBER NETWORK INC
CENTRAL INDEX KEY: 0001043533
STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899]
IRS NUMBER: 113168327
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
SEC ACT: 1934 Act
SEC FILE NUMBER: 005-52465
FILM NUMBER: 1761639
BUSINESS ADDRESS:
STREET 1: 360 HAMILTON AVE
STREET 2: 1 NORTH LEXINGTON AVE
CITY: WHITE PLAINS
STATE: NY
ZIP: 10601
BUSINESS PHONE: 9144216700
MAIL ADDRESS:
STREET 1: 360 HAMILTON AVE
STREET 2: 1 NORTH LEXINGTON AVE
CITY: WHITE PLAINS
STATE: NY
ZIP: 10601
FORMER COMPANY:
FORMER CONFORMED NAME: NATIONAL FIBER NETWORK INC
DATE OF NAME CHANGE: 19970806
FILED BY:
COMPANY DATA:
COMPANY CONFORMED NAME: METROMEDIA FIBER NETWORK INC
CENTRAL INDEX KEY: 0001043533
STANDARD INDUSTRIAL CLASSIFICATION: COMMUNICATION SERVICES, NEC [4899]
IRS NUMBER: 113168327
STATE OF INCORPORATION: DE
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: SC 13D
BUSINESS ADDRESS:
STREET 1: 360 HAMILTON AVE
STREET 2: 1 NORTH LEXINGTON AVE
CITY: WHITE PLAINS
STATE: NY
ZIP: 10601
BUSINESS PHONE: 9144216700
MAIL ADDRESS:
STREET 1: 360 HAMILTON AVE
STREET 2: 1 NORTH LEXINGTON AVE
CITY: WHITE PLAINS
STATE: NY
ZIP: 10601
FORMER COMPANY:
FORMER CONFORMED NAME: NATIONAL FIBER NETWORK INC
DATE OF NAME CHANGE: 19970806
SC 13D
1
sc13d.txt
SCHEDULE 13D
================================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
SCHEDULE 13D
Under the Securities Exchange Act of 1934
-----------------------
METROMEDIA FIBER NETWORK, INC.
(Name of Issuer)
CLASS A COMMON STOCK, PAR VALUE $0.01 PER SHARE
(Title of Class of Securities)
591689-10-4
(CUSIP Number)
DAVID A. PERSING
SENIOR VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
METROMEDIA COMPANY
ONE MEADOWLANDS PLAZA
EAST RUTHERFORD, NEW JERSEY 07073-2137
TEL. NO.: (201) 531-8050
(Name, Address and Telephone Number of
Person Authorized to Receive Notices
and Communications)
-----------------------
OCTOBER 1, 2001
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), 1(f) or 1(g), check the following box [X].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-1(a) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
================================================================================
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 2 of 19
----------------------------- -----------------------------
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
METROMEDIA COMPANY
62-1293303
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------
BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER
REPORTING
PERSON 62,924,096
WITH ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
62,924,096
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
62,924,096
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.5%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
PN
--------------------------------------------------------------------------------
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 3 of 19
----------------------------- -----------------------------
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
John W. Kluge, Chase Manhattan Bank and Stuart Subotnick,
trustees under a Trust Agreement, dated May 30, 1984 and as
amended and restated, between John W. Kluge, as grantor, and
John W. Kluge and Manufacturers Hanover Trust Company, as
trustees
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------
BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER
REPORTING
PERSON 315,510,780
WITH ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
315,510,780
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
315,510,780
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
31.7%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
OO
--------------------------------------------------------------------------------
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 4 of 19
----------------------------- -----------------------------
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
JOHN W. KLUGE
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 0
SHARES ------------------------------------------------
BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER
REPORTING
PERSON 378,434,876
WITH ------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
------------------------------------------------
10 SHARED DISPOSITIVE POWER
378,434,876
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
378,434,876
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
35.8%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 5 of 19
----------------------------- -----------------------------
--------------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
STUART SUBOTNICK
--------------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_]
(b) [X]
--------------------------------------------------------------------------------
3 SEC USE ONLY
--------------------------------------------------------------------------------
4 SOURCE OF FUNDS
PF
--------------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e)
[_]
--------------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
--------------------------------------------------------------------------------
7 SOLE VOTING POWER
NUMBER OF 7,887,948
SHARES ------------------------------------------------
BENEFICIALLY OWNED BY EACH 8 SHARED VOTING POWER
REPORTING
PERSON 379,844,876
WITH ------------------------------------------------
9 SOLE DISPOSITIVE POWER
7,887,948
------------------------------------------------
10 SHARED DISPOSITIVE POWER
379,844,876
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
387,732,824
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
[_]
--------------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
36.4%
--------------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON
IN
--------------------------------------------------------------------------------
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 6 of 19
----------------------------- -----------------------------
ITEM 1. SECURITY AND THE ISSUER.
This statement relates to the class A common stock, par value
$.01 per share (the "Class A Common Stock"), of Metromedia Fiber Network, Inc.,
a Delaware corporation (the "Company"). The Company's principal executive
offices are c/o Metromedia Fiber Network Services, Inc., 360 Hamilton Avenue,
White Plains, New York 10601. In addition to direct and indirect ownership of
shares of Class A Common Stock, the persons identified in Item 2 may be deemed
to be beneficial owners of the shares of Class A Common Stock reported in Item 5
by virtue of (i) their respective holdings of (a) the class B common stock, par
value $.01 per share (the "Class B Common Stock"), of the Company, which are
convertible into shares of Class A Common Stock at the option of the holder, and
(b) immediately exercisable options to purchase Class A Common Stock and (ii)
their respective acquisition of beneficial ownership of (x) an aggregate
principal amount of $150,000,000 of the Company's 8.5% senior convertible notes
(the "Convertible Note"), which are convertible into 278,422,274 shares of Class
A Common Stock at a conversion price of approximately $0.54 per share at the
option of the holder, and (y) warrants (the "Warrants") entitling the holders
thereof to purchase up to 33,911,406 shares of the Class A Common Stock at an
exercise price per share of approximately $0.54.
ITEM 2. IDENTITY AND BACKGROUND.
(a) The persons filing this statement are Metromedia
Company, a Delaware general partnership ("Metromedia"), John W. Kluge, Chase
Manhattan Bank and Stuart Subotnick, trustees under a Trust Agreement, dated May
30, 1984 and as amended and restated, between John W. Kluge, as grantor, and
John W. Kluge and Manufacturers Hanover Trust Company, as trustees, a New York
trust (the "Kluge Trust"), John W. Kluge and Stuart Subotnick. Metromedia, the
Kluge Trust, Mr. Kluge and Mr. Subotnick are sometimes hereinafter collectively
referred to as the "Reporting Persons." The Reporting Persons are making this
single, joint filing because they may be deemed to constitute a "group" within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), although neither the fact of this filing nor
anything contained herein shall be deemed to be an admission by the Reporting
Persons that a group exists.
(b)
METROMEDIA
Metromedia is a Delaware general partnership in which John W.
Kluge through a trust beneficially owns a general partnership interest and
Stuart Subotnick directly owns a general partnership interest. Mr. Kluge and Mr.
Subotnick are the sole general partners of Metromedia. Mr. Kluge is the
Chairman, President and Chief Executive Officer of Metromedia and Mr. Subotnick
is the Executive Vice President of Metromedia. The principal businesses of
Metromedia and its affiliates include
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 7 of 19
----------------------------- -----------------------------
telecommunications, computerized imaging, hospitality, medical research and
product development and entertainment. The address of its principal business and
its principal office address are One Meadowlands Plaza, East Rutherford, New
Jersey 07073. Messrs. Kluge and Subotnick are the controlling persons of
Metromedia.
KLUGE TRUST
The Kluge Trust is a grantor trust formed under the terms of
the Trust Agreement, dated May 30, 1984 and as amended and restated (the "Trust
Agreement"), between John W. Kluge, as Grantor, and John W. Kluge and
Manufacturers Hanover Trust Company, as Trustees. The trustees of the Kluge
Trust are John W. Kluge, Chase Manhattan Bank and Stuart Subotnick. Under the
Trust Agreement the trustees generally have the voting and dispositive power
over the corpus of the Kluge Trust, except that Chase Manhattan Bank has neither
voting nor dispositive power over any shares of Class A Common Stock
beneficially owned by the Kluge Trust. John W. Kluge and Stuart Subotnick are
the only directors, executive officers and controlling persons of the Kluge
Trust within the meaning of Instruction C to Schedule 13D of the Exchange Act
and their residence or business addresses and present principal occupations or
employment are set forth below.
JOHN W. KLUGE
The business address of John W. Kluge is c/o Metromedia
Company, 810 Seventh Avenue, 29th Floor, New York, NY 10019. His principal
occupation is Chairman, President and Chief Executive Officer of Metromedia.
STUART SUBOTNICK
The business address of Stuart Subotnick is c/o Metromedia
Company, 810 Seventh Avenue, 29th Floor, New York, NY 10019. His principal
occupation is Executive Vice President of Metromedia.
(d) None of the entities or persons identified in this
Item 2 has, during the last five years, been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) None of the entities or persons identified in this
Item 2 has, during the last five years, been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violation with respect to such laws.
(f) All of the natural persons identified in this Item 2
are citizens of the United States of America.
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 8 of 19
----------------------------- -----------------------------
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The Reporting Persons acquired in the aggregate 67,538,544
shares of Class B Common Stock, which are convertible into shares of Class A
Common Stock at the option of the holder, prior to the time the Class A Common
Stock was registered under Section 12 of the Exchange Act. The Reporting Persons
filed a statement on Schedule 13G on February 14, 2000 (the "Schedule 13G") as
required by Rule 13d-1 promulgated under the Exchange Act with respect to their
beneficial ownership of the Class A Common Stock. On February 9, 1999, October
20, 1999, February 14, 2000 and February 14, 2001, the Reporting Persons filed
Amendment No. 1, Amendment No. 2, Amendment No. 3 and Amendment No. 4,
respectively, to the Schedule 13G.
This statement is being filed as a result of the Kluge Trust
entering into two separate transactions. First, pursuant to a Note Purchase
Agreement, dated as of October 1, 2001 (the "Note Purchase Agreement"), by and
among the Company, the Kluge Trust, David Rockefeller and Stephen Garofalo,
among other things, the Company issued, and the Kluge Trust acquired from the
Company, the Convertible Note. This note bears interest at the rate of 8.5% per
year, is due and payable on November 1, 2011 and is convertible (subject to
adjustment) into 278,422,274 shares of Class A Common Stock at a conversion
price of approximately $0.54 per share.
Second, concurrently with its purchase of the Convertible
Notes, the Kluge Trust and certain other parties consummated the transactions
contemplated by the Note and Guarantee Agreement, dated as of September 6, 2001
(the "Note and Guarantee Agreement"), among the Company, certain subsidiary
guarantors, the purchasers named in the agreement and Citicorp USA, Inc., as a
holder and as administrative agent, pursuant to which the Kluge Trust purchased
$25,000,000 aggregate principal amount of the Company's floating rate guaranteed
term notes due 2006. The Company also issued the Kluge Trust, pursuant to a
Warrant Agreement, dated as of October 1, 2001 (the "Warrant Agreement"), by and
between the Company and the initial holders party thereto, a Warrant to purchase
up to 33,911,406 shares of the Class A Common Stock at an exercise price per
share of approximately $0.54. This warrant is not exercisable until the date
which is twenty days after we have delivered an Information Statement to the
Company's stockholders describing the financing transactions, which date is
referred to in this statement as the "trigger date." The warrant remains
exercisable until the fifth anniversary of the trigger date and contain a
cashless exercise provision, allowing it to be exercised without payment in cash
of the exercise price.
The Kluge Trust has also entered into a Registration Rights
Agreement, dated as of October 1, 2001 (the "Registration Rights Agreement"), by
and among the Company, the Kluge Trust, David Rockefeller and Stephen Garofalo,
pursuant to which the Company has agreed, under the terms and conditions set
forth therein, to register under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), the Class A Common Stock issuable upon the conversion of
Convertible Note held by the Kluge Trust. Also, pursuant to the terms of the
Warrant Agreement, the Company has agreed to
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 9 of 19
----------------------------- -----------------------------
register under the Securities Act the Warrant and the Class A Common Stock
issuable upon exercise of the Warrant.
The foregoing summaries of the Note Purchase Agreement, the
Warrant Agreement, the Warrant and the Registration Rights Agreement are
qualified in their entirety by reference to exhibits 1, 2 (including the form of
warrant attached as an exhibit thereto) and 3, respectively, of this statement
which are incorporated herein by reference.
The aggregate amount of funds required by the Kluge Trust to
purchase the Convertible Note was $150,000,000, which were the personal funds of
the Kluge Trust. The Warrant was issued in connection with the closing of the
transactions under the Note and Guarantee Agreement and for no additional
consideration (beyond the $25,000,000 loaned to the Company by the Kluge Trust
pursuant to the Note and Guarantee Agreement, which were also personal funds of
the Kluge Trust).
ITEM 4. PURPOSE OF TRANSACTION.
Messrs. Kluge and Subotnick are each directors of the Company.
Furthermore, Metromedia, Stuart Subotnick and trusts affiliated with Mr.
Subotnick own all of the shares of Class B Common Stock, which such shares are
entitled to ten (10) votes per share, which entitle Metromedia and Mr. Subotnick
to elect a majority of the members of the Board of Directors of the Company. As
such, Metromedia and Messrs. Kluge and Subotnick may be deemed to control the
Company. In addition, certain officers of Metromedia also serve as officers of
the Company.
In the ordinary course of their business, the Reporting
Persons from time to time acquire or divest themselves of significant or
controlling interests in various companies. The purpose of acquiring a
significant or controlling interest in such companies, including the Company, is
to enhance the value of the company as an investment. From time to time the
Reporting Persons review the performance of their investments and consider
possible strategies for enhancing value. As part of their ongoing review of
their investment in the Company, the Reporting Persons are currently exploring
and may explore from time to time in the future a variety of alternatives,
including, without limitation: (a) the acquisition of additional securities of
the Company or the disposition of securities of the Company; (b) an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries; (c) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries; (d) a change in the present board of directors or management of
the Company; (e) a material change in the present capitalization or dividend
policy of the Company; (f) other material changes in the Company's business or
corporate structure; (g) changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the acquisition of
control of the Company by any person; (h) causing a class of securities of the
Company to be delisted from a national securities exchange or to cease to be
authorized to be quoted in an inter-dealer quotation system of a registered
national securities association; (i) a class of equity securities of the issuer
becoming eligible for termination of registration pursuant to
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 10 of 19
----------------------------- -----------------------------
section 12(g)(4) of the Exchange Act; or (j) other actions similar in purpose or
effect to any of those enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
(a)
METROMEDIA
As of October 1, 2001, Metromedia owns of record 62,924,096
shares of the Class B Common Stock, which are convertible at its option into
62,924,096 shares of the Class A Common Stock. As such, Metromedia is deemed to
be the beneficial owner of an aggregate of 62,924,096 shares of the Class A
Common Stock, which based on calculations made in accordance with Rule 13d-3(d)
of the Exchange Act and there being 681,282,482 shares of the Class A Common
Stock outstanding as of October 5, 2001 (as reported by the Company in the
Company's preliminary Schedule 14C filed with the Securities and Exchange
Commission (the "SEC") on October 10, 2001), represents approximately 8.5% of
the outstanding shares of the Class A Common Stock.
KLUGE TRUST
As of October 1, 2001, the Kluge Trust owns of record
2,477,100 shares of the Class A Common Stock and owns presently exercisable
options to purchase 700,000 shares of the Class A Common Stock at $28.5625 per
share. Furthermore, as set forth above, on October 1, 2001, the Kluge Trust
acquired (i) the Convertible Note which is convertible at its option into
278,422,274 shares of the Class A Common Stock and (ii) the Warrants which are
convertible at its option into 33,911,406 shares of the Class A Common Stock. As
such, the Kluge Trust is deemed to be the beneficial owner of an aggregate of
315,510,780 shares of the Class A Common Stock, which based on calculations made
in accordance with Rule 13d-3(d) of the Exchange Act and there being 681,282,482
shares of the Class A Common Stock outstanding as of October 5, 2001 (as
reported by the Company in the Company's preliminary Schedule 14C filed with the
SEC on October 10, 2001), represents approximately 31.7% of the outstanding
shares of the Class A Common Stock.
JOHN W. KLUGE
As of October 1, 2001, (i) as grantor to, and trustee of, the
Kluge Trust, Mr. Kluge would be deemed to beneficially own the 315,510,780
shares of the Class A Common Stock beneficially owned by the Kluge Trust and
(ii) as a controlling person of Metromedia, Mr. Kluge would be deemed to
beneficially own the 62,924,096 shares of the Class A Common Stock beneficially
owned by Metromedia. As such, Mr. Kluge is deemed to be the beneficial owner of
an aggregate of 378,434,876 shares of the Class A Common Stock, which based on
calculations made in accordance with Rule 13d-3(d) of the Exchange Act and there
being 681,282,482 shares of the Class A Common Stock outstanding as of October
5, 2001 (as reported by the Company in the Company's
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 11 of 19
----------------------------- -----------------------------
preliminary Schedule 14C filed with the SEC on October 10, 2001), represents
approximately 35.8% of the outstanding shares of the Class A Common Stock.
STUART SUBOTNICK
As of October 1, 2001, Mr. Subotnick beneficially owns
1,250,000 shares of the Class A Common Stock, which shares are held by trusts
for which Mr. Subotnick serves as a trustee. Furthermore, Mr. Subotnick
beneficially owns 4,614,448 shares of the Class B Common, which are convertible
at any time into 4,614,448 shares of the Class A Common Stock, and owns
presently exercisable options to purchase 2,733,500 shares of the Class A Common
Stock at $0.12313 per share and 700,000 shares of Class A Common Stock at
$28.5625 per share. Of the 4,614,448 shares of the Class B Common Stock
beneficially owned by Mr. Subotnick, 160,000 shares of the Class B Common Stock
are owned by trusts for which Anita Subotnick, Mr. Subotnick's spouse, serves as
the trustee.
In addition, (i) as a controlling person of Metromedia, Mr.
Subotnick would be deemed to beneficially own the 62,924,096 shares of the Class
A Common Stock beneficially owned by Metromedia and (ii) as a trustee of the
Kluge Trust, Mr. Subotnick would be deemed to beneficially own the 315,510,780
shares of the Class A Common Stock beneficially owned by the Kluge Trust. As
such, Mr. Subotnick is deemed to be the beneficial owner of an aggregate of
387,732,824 shares of the Class A Common Stock, which based on calculations made
in accordance with Rule 13d-3(d) of the Exchange Act and there being 681,282,482
shares of the Class A Common Stock outstanding as of October 5, 2001 (as
reported by the Company in the Company's preliminary Schedule 14C filed with the
SEC on October 10, 2001), represents approximately 36.4% of the outstanding
shares of the Class A Common Stock.
(b)
METROMEDIA
Messrs. Kluge and Subotnick may be deemed to control
Metromedia. Thus, they and Metromedia may be considered to share voting and
dispositive power over the 62,924,096 shares of the Class A Common Stock
beneficially owned by Metromedia.
KLUGE TRUST
Mr. Kluge is a grantor and trustee of the Kluge Trust and Mr.
Subotnick is a trustee of the Kluge Trust. Thus, Messrs. Kluge and Subotnick may
be considered to share voting and dispositive power over the 315,510,780 shares
of the Class A Common Stock beneficially owned by the Kluge Trust.
JOHN W. KLUGE
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 12 of 19
----------------------------- -----------------------------
Through his co-trustee and partnership relationships with Mr.
Subotnick, Mr. Kluge shares with Mr. Subotnick the voting and dispositive power
over the 315,510,780 shares of the Class A Common Stock beneficially owned by
the Kluge Trust and 62,924,096 shares of the Class A Common Stock beneficially
owned by Metromedia.
STUART SUBOTNICK
Through his co-trustee and partnership relationships with Mr.
Kluge, Mr. Subotnick shares with Mr. Kluge the voting and dispositive power over
the 315,510,780 shares of the Class A Common Stock beneficially owned by the
Kluge Trust and 62,924,096 shares of the Class A Common Stock beneficially owned
by Metromedia. Mr. Subotnick has sole voting and dispositive power over
7,887,948 shares of the Class A Common Stock beneficially owned by him. Mr.
Subotnick has voting and dispositive power shared with (i) his spouse (who is
not a Reporting Person) over 160,000 shares beneficially owned by trusts for
which Ms. Subotnick serves as trustee and (ii) his co-trustee (who is not a
Reporting Person) over 1,250,000 shares of the Class A Common Stock beneficially
owned by trusts for which Mr. Subotnick serves as a co-trustee.
(c) Other than as set forth herein, to the best knowledge
of each of the Reporting Persons, none of the Reporting Persons has effected any
transactions in the Class A Common Stock during the past 60 days.
(d)
SUBOTNICK
Members of Mr. Subotnick's family have the right to receive or
the power to direct the receipt of dividends from, or the proceeds from the sale
of, 160,000 shares of the Class B Common Stock which are freely convertible into
shares of the Class A Common Stock at a rate of one share of the Class A Common
Stock for each share of the Class B Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUERS.
The matters set forth in Item 2 are incorporated in this Item
6 by reference as if fully set forth herein.
DECS
On November 17, 1999, DECS Trust VI completed a registered
offering of 10,000,000 DECS. DECS Trust VI, which is a closed-end management
investment company and not affiliated with the Company, entered into prepaid
forward contracts with Stephen A. Garofalo, Metromedia, Mr. Kluge and Mr.
Subotnick pursuant to which
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 13 of 19
----------------------------- -----------------------------
holders of the DECs may receive cash and/or shares of the Class A Common Stock
on or about November 15, 2002. Messrs. Garofalo, Kluge and Subotnick and
Metromedia remain the beneficial owners of all shares of the Class A Common
Stock that may be delivered on November 15, 2002. The DECS were issued at
$39.4375 per DECS. On November 19, 1999, the underwriters for that offering
exercised the over-allotment option granted to them under an underwriting
agreement relating to the DECS transactions and accordingly DECS Trust VI sold
1,500,000 additional DECS.
2001 VOTING AGREEMENT
On October 1, 2001, the Company and Verizon Investments Inc.
("VERIZON INVESTMENTS") entered into a Note Purchase Agreement (the "VERIZON
PURCHASE AGREEMENT"), pursuant to which, among other things, (A) Verizon
purchased from the Company 8.5% Senior Secured Convertible Notes due 2011 of MFN
in the aggregate principal amount of $50,000,000 (the "New Convertible Notes"),
which New Convertible Notes are convertible into shares of the Class A Common
Stock, and (B) the Company exchanged $975,281,000 principal amount of the
Company's 6.15% Convertible Subordinated Notes due 2010 Notes held by Verizon
for $500,000,000 principal amount of the Company's 6.15% Series A Convertible
Subordinated Notes due March 16, 2010 (the "New 6.15% Series A Notes") and
$475,281,000 principal amount of the Company's 6.15% Series B Convertible
Subordinated Notes due March 16, 2010 (the "New 6.15% Series B Notes," and
together with the New 6.15% Series A Notes, the "New 6.15% Notes").
Concurrently, Bechtel Corporation ("Bechtel"), the Company and
Metromedia Fiber Network Services, Inc. ("MFNS"), a wholly-owned subsidiary of
MFN have entered into that certain Master Restructuring Agreement, pursuant to
which, among other things, (A) MFNS (and the Company, with respect to the
conversion rights only) issued to Bechtel that certain 8.5% Senior Subordinated
Convertible Note in the aggregate principal amount of $89,000,000 (the "Bechtel
Note"), which Bechtel Note is convertible into shares of the Class A Common
Stock and (B) the Company and Bechtel executed that certain Warrant Agreement,
dated as of October 1, 2001, pursuant to which the Company issued to Bechtel a
warrant (the "Bechtel Warrant") exercisable for 25,000,000 shares of Class A
Common Stock.
In addition, on October 1, 2001, Hathaway Dinwiddie
Construction Company, Edwards and Kelcey, Inc. and Cupertino Electric Inc. (the
"Contractors") and certain subcontractors together with MFNS have entered into
certain settlement agreements dated on or about the date hereof (each a "Vendor
Agreement") relating to construction services and related obligations performed
for MFNS or subsidiaries of MFNS, under which certain cash payments, promissory
notes, shares of Class A Common Stock and warrants to purchase shares of Class A
Common Stock are to be delivered to the Contractors and certain subcontractors
(such shares and warrants being collectively referred to as the "Vendors'
Securities").
Under a Voting Agreement, dated as of October 1, 2001 (the
"2001 Voting Agreement"), Metromedia and Messrs. Kluge and Subotnick have agreed
to vote all of
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 14 of 19
----------------------------- -----------------------------
their shares of Class B Common Stock (or any other shares beneficially owned by
them) in favor of any proposal seeking approval of the issuance of Class A
Common Stock issuable upon conversion of the New Convertible Notes, the New
6.15% Notes, the Bechtel Note and the Bechtel Warrant and the issuance of Class
A Common Stock issuable as or in connection with the Vendors' Securities or any
other transactions contemplated by the Verizon Purchase Agreement, the MRA and
the Vendor Agreements.
The foregoing summary of the 2001 Voting Agreement is
qualified in its entirety by reference to exhibit 4 of this statement which is
incorporated herein by reference.
WARRANTHOLDERS VOTING AGREEMENT
Under a Voting Agreement, dated as of October 1, 2001 (the
"Warrantholders Voting Agreement"), Metromedia and Messrs. Kluge and Subotnick
have agreed to vote all of their shares of Class B Common Stock (or any other
shares beneficially owned by them) in favor of any proposal seeking approval of
the issuance of Class A Common Stock issuable upon conversion of any warrants
issued pursuant to the Warrant Agreement and the issuance of Class A Common
Stock issuable upon conversion of the New Convertible Notes. In addition,
Metromedia and Messrs. Kluge and Subotnick have agreed not to transfer or
otherwise dispose of any of the shares of the Company beneficially owned by them
until such time as the 20-day period provided for in Rule 14c-2(b) under the
Exchange Act has expired and the above equity issuances have been approved. The
foregoing summary of the Warrantholders Voting Agreement is qualified in its
entirety by reference to exhibit 5 of this statement which is incorporated
herein by reference.
NORTEL VOTING AGREEMENT
On September 6, 2001, the Company entered into a Note
Agreement (the "Nortel Note Agreement") between MFNS and Nortel Networks, Inc.
("Nortel") under which MFNS (1) paid Nortel $15,000,000 and (2) issued to Nortel
$231,036,842 aggregate principal amount of MFNS's 14% term notes due 2007. In
connection with the Nortel Note Agreement and pursuant to a Warrant Agreement
(the "Nortel Warrant Agreement") between the Company and Nortel, the Company
issued to Nortel a warrant to purchase up to 84,778,516 shares of the Class A
Common Stock at a price per share of approximately $0.54. This warrant becomes
exercisable on the trigger date and remains exercisable until the tenth
anniversary of the trigger date. The warrant contains a cashless exercise
feature, allowing it to be exercised without payment in cash of the exercise
price.
Under a Voting Agreement, dated as of October 1, 2001 (the
"Nortel Voting Agreement"), Metromedia and Messrs. Kluge and Subotnick have
agreed to vote all of their shares of Class B Common Stock (or any other shares
beneficially owned by them) in favor of any proposal seeking approval of the
issuance of Class A Common Stock issuable upon conversion of any securities
issued under the Nortel Note Agreement
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 15 of 19
----------------------------- -----------------------------
and Nortel Warrant Agreement. In addition, Metromedia and Messrs. Kluge and
Subotnick have agreed not to transfer or otherwise dispose of any of the shares
of the Company beneficially owned by them until such time as the 20-day period
provided for in Rule 14c-2(b) under the Exchange Act has expired and the above
equity issuances have been approved.
The foregoing summaries of the Nortel Note Agreement, as
amended, Nortel Warrant Agreement and the Nortel Voting Agreement are qualified
in their entirety by reference to exhibits 6, 6A, 7 and 8, respectively, of this
statement which are incorporated herein by reference.
STOCKHOLDERS AGREEMENT
On October 1, 2001, Metromedia, the Kluge Trust and Messrs.
Kluge and Subotnick (and various affiliates of each of them) entered into an
Amended and Restated Stockholders Agreement (the "Amended and Restated
Stockholders Agreement") with Verizon pursuant to which, among other things, the
stockholders agreed (1) not to sell their shares of the Class A Common Stock or
Class B Common Stock for a period of eighteen months (other than transfers to
specified affiliates and transfers of in the aggregate less than 10% of the
amount of the Class A Common Stock and the Class B Common Stock held by any of
these stockholders), (2) that Verizon would have a "right of first refusal" to
purchase any shares being sold by any of these stockholders in connection with a
sale of shares of the Class A Common Stock or the Class B Common Stock by any
stockholder party to the agreement and (3) that Verizon would be able to
participate pro rata based on relative share ownership in any sale of shares of
the Class A Common Stock or the Class B Common stock to a third party purchaser
by any stockholder party to the agreement. The Amended and Restated Stockholders
Agreement also terminated the existing "standstill" restrictions on Verizon. The
foregoing summary of the Amended and Restated Stockholders Agreement is
qualified in its entirety by reference to exhibit 9 of this statement which is
incorporated herein by reference.
BANK WARRANT TAG ALONG RIGHT
On October 1, 2001, Metromedia and Messrs. Kluge and Subotnick
entered into a Joinder Agreement (the "BANK JOINDER AGREEMENT") with the Company
pursuant to the terms of the Warrant Agreement. As a result, each of Metromedia
and Messrs. Kluge and Subotnick have agreed to be bound by those sections of the
Warrant Agreement which provide that any holder of a warrant issued pursuant to
the Warrant Agreement (which includes the Kluge Trust) would be able to
participate pro rata based on relative share ownership in any sale of shares of
the Class A Common Stock or the Class B Common stock to a third party purchaser
by Metromedia or Messrs. Kluge and Subotnick. The foregoing summary of the Bank
Joinder Agreement and the Warrant Agreement are qualified in their entirety by
reference to exhibits 10 and 2, respectively, of this statement which are
incorporated herein by reference.
NORTEL WARRANT TAG ALONG RIGHT
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 16 of 19
----------------------------- -----------------------------
On September 28, 2001, Metromedia and Messrs. Kluge and
Subotnick entered into a Joinder Agreement (the "NORTEL JOINDER AGREEMENT") with
the Company pursuant to the terms of the Nortel Warrant Agreement. As a result,
each of Metromedia and Messrs. Kluge and Subotnick have agreed to be bound by
those sections of the Nortel Warrant Agreement which provide that any holder of
a warrant issued pursuant to the Nortel Warrant Agreement would be able to
participate pro rata based on relative share ownership in any sale of shares of
the Class A Common Stock or the Class B Common stock to a third party purchaser
by Metromedia or Messrs. Kluge and Subotnick. The foregoing summary of the
Nortel Joinder Agreement and the Nortel Warrant Agreement are qualified in their
entirety by reference to exhibits 11 and 7, respectively, of this statement
which are incorporated herein by reference.
BECHTEL WARRANT TAG ALONG RIGHT
On October 1, 2001, Metromedia and Messrs. Kluge and Subotnick
entered into a Joinder Agreement (the "BECHTEL JOINDER AGREEMENT") with the
Company pursuant to the terms of the Warrant Agreement, dated as of October 1,
2001 (the "BECHTEL WARRANT AGREEMENT"), between the Company and Bechtel. As a
result, each of Metromedia and Messrs. Kluge and Subotnick have agreed to be
bound by the sections of the Bechtel Warrant Agreement that provide that Bechtel
would be able to participate pro rata based on relative share ownership in any
sale of shares of the Class A Common Stock or the Class B Common stock to a
third party purchaser by Metromedia or Messrs. Kluge and Subotnick. The
foregoing summary of the Bechtel Joinder Agreement and the Bechtel Warrant
Agreement are qualified in their entirety by reference to exhibits 12 and 13,
respectively, of this statement which are incorporated herein by reference.
ITEM 7. MATERIALS TO BE FILED AS EXHIBITS.
Exhibit 1: Note Purchase Agreement, dated as of October
1, 2001, by and among Metromedia Fiber
Network, Inc., John W. Kluge, Chase
Manhattan Bank and Stuart Subotnick,
trustees under a Trust Agreement, dated May
30, 1984 and as amended and restated,
between John W. Kluge, as grantor, and John
W. Kluge and Manufacturers Hanover Trust
Company, as trustees, David Rockefeller and
Stephen Garofalo (incorporated by reference
to Exhibit 4.2 of the Company's Current
Report on Form 8-K, filed on October 10,
2001)
Exhibit 2: Warrant Agreement, dated October 1, 2001, by
and between Metromedia Fiber Network, Inc.
and the Initial Holders party thereto,
including as an exhibit thereto the form of
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 19 of 19
----------------------------- -----------------------------
warrant (incorporated by reference to
Exhibit 10.1 of the Company's Current Report
on Form 8-K, filed on October 10, 2001).
Exhibit 3: Registration Rights Agreement, dated as of
October 1, 2001, by and among Metromedia
Fiber Network, Inc., John W. Kluge, Chase
Manhattan Bank and Stuart Subotnick,
trustees under a Trust Agreement, dated May
30, 1984 and as amended and restated,
between John W. Kluge, as grantor, and John
W. Kluge and Manufacturers Hanover Trust
Company, as trustees, David Rockefeller and
Stephen Garofalo (incorporated by reference
to Exhibit 10.2 of the Company's Current
Report on Form 8-K, filed on October 10,
2001).
Exhibit 4: Voting Agreement, dated as of October 1,
2001, by and among Metromedia Fiber Network,
Inc., Verizon Investments Inc., Bechtel
Corporation, Hathaway Dinwiddie Construction
Company, Edwards and Kelcey, Inc., Cupertino
Electric Inc. and each of the other
stockholders named therein (incorporated by
reference to Exhibit 10.6 of the Company's
Current Report on Form 8-K, filed on October
10, 2001).
Exhibit 5: Voting Agreement, dated as of October 1,
2001, by and between Metromedia Company,
John W. Kluge, Stuart Subotnick, Stephen A.
Garofalo and each of the other persons named
therein.
Exhibit 6: Note Agreement, dated as of September 19,
2001, among Metromedia Fiber Network
Services, Inc., each of the Purchasers named
therein and Nortel Networks, Inc., as
Administrative Agent (incorporated by
reference to Exhibit 10.16 of the Company's
Current Report on Form 8-K, filed on October
10, 2001).
Exhibit 6A: Amendment to Note Agreement, dated as of
September 28, 2001, by and among Metromedia
Fiber Network Services, Inc., each of the
purchasers named therein and Nortel
Networks, Inc., as Administrative Agent
(incorporated by reference to Exhibit
10.16(a) of the Company's Current Report on
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 18 of 19
----------------------------- -----------------------------
Form 8-K, filed on October 10, 2001).
Exhibit 7: Warrant Agreement, dated September 28, 2001,
by and between Metromedia Fiber Network,
Inc. and Nortel Networks Inc., including as
an exhibit thereto the form of warrant
(incorporated by reference to Exhibit 10.17
of the Company's Current Report on Form 8-K,
filed on October 10, 2001).
Exhibit 8: Voting Agreement, dated as of September 28,
2001, by and among Nortel Networks Inc. and
each of the stockholders named therein.
Exhibit 9: Amended and Restated Stockholders'
Agreement, dated as of October 1, 2001, by
and among Metromedia Fiber Network, Inc.,
Verizon Investments Inc. and the other
stockholders named therein (incorporated by
reference to Exhibit 10.4 of the Company's
Current Report on Form 8-K, filed on October
10, 2001).
Exhibit 10: Joinder Agreement, dated as of October 1,
2001, between Metromedia Fiber Network, Inc.
and the other parties signatories hereto.
Exhibit 11: Joinder Agreement, dated as of September 28,
2001, between Metromedia Fiber Network, Inc.
and the other parties signatories hereto.
Exhibit 12: Joinder Agreement, dated as of October 1,
2001, between Metromedia Fiber Network, Inc.
and the other parties signatories hereto.
Exhibit 13: Warrant Agreement, dated October 1, 2001,
between Metromedia Fiber Network, Inc. and
Bechtel Corporation, including as an exhibit
thereto the form of warrant (incorporated by
reference to Exhibit 10.14 of the Company's
Current Report on Form 8-K, filed on October
10, 2001).
Exhibit 14: Joint Filing Agreement among the Reporting
Persons, dated October 18, 2000.
----------------------------- -----------------------------
CUSIP NO. 591689-10-4 Page 19 of 19
----------------------------- -----------------------------
SIGNATURES
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated as of October 18, 2001.
METROMEDIA COMPANY
By: /s/ Stuart Subotnick
---------------------------------------
Name: Stuart Subotnick
Title:
JOHN W. KLUGE, CHASE MANHATTAN BANK AND
STUART SUBOTNICK, TRUSTEES UNDER A TRUST
AGREEMENT BETWEEN JOHN W. KLUGE, AS GRANTOR,
AND JOHN W. KLUGE AND MANUFACTURERS HANOVER
TRUST COMPANY, AS TRUSTEES, DATED MAY 30,
1984, AS AMENDED AND RESTATED
By: /s/ John W. Kluge
---------------------------------------
Name: John W. Kluge
Title:
/s/ Stuart Subotnick
--------------------------------------------
Stuart Subotnick
/s/ John W. Kluge
--------------------------------------------
John W. Kluge
EX-9
3
ex5-sc13d.txt
EXHIBIT 5
EXHIBIT 5
to SCHEDULE 13D
This VOTING AGREEMENT dated as of October 1, 2001 is made and
entered into by and between Metromedia Company, a Delaware general partnership,
John W. Kluge, Stuart Subotnick, and Stephen A. Garofalo (collectively, the
"STOCKHOLDERS"), and each Person named on the signature pages hereof under the
caption "Initial Holders" (the "INITIAL HOLDERS").
WHEREAS, the Initial Holders and Metromedia Fiber Network,
Inc., a Delaware corporation ("MFN"), propose to enter into a warrant agreement,
a copy of which is attached hereto as ANNEX A (the "WARRANT AGREEMENT;
capitalized terms not defined herein shall have the meaning ascribed to them in
the Warrant Agreement), pursuant to which MFN will issue Warrants to the Initial
Holders on the terms provided for therein;
WHEREAS, the Stockholders own the number of shares of MFN as
set forth opposite such Stockholder's name on SCHEDULE I hereto (the "MFN
SHARES"); and
WHEREAS, as a condition to the Initial Holders' willingness to
enter into the Warrant Agreement and the Note and Guarantee Agreements, the
Initial Holders desire to establish in this Voting Agreement certain terms and
conditions concerning (i) the voting of the MFN Shares with respect to the
issuances (the "EQUITY ISSUANCES") of common stock (or securities convertible
into or exercisable for common stock) of the Issuer pursuant to the terms of the
Note and Guarantee Agreement and the Verizon Debt Agreement (as such terms are
defined in the Note and Guarantee Agreements) and (ii) the disposition of the
MFN Shares;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Voting Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
COVENANTS OF THE STOCKHOLDERS
1.01 APPROVAL OF EQUITY ISSUANCES. (a) Until such time as
the 20-day period provided for in Rule 14c-2(b) under the Exchange Act has
expired and the Equity Issuances have been approved by the requisite number of
shares of voting stock of MFN, the Stockholders will not sell, transfer or
otherwise dispose of any of the MFN Shares or any interest therein, exercise any
right of conversion with respect to the MFN Shares, deposit any of the MFN
Shares into a voting trust or enter into a voting agreement or arrangement or
grant any proxy with respect thereto or enter into any contract, option or other
arrangement or undertaking with respect to the direct or indirect Disposition of
any of the MFN Shares.
(b) The Stockholders will, with respect to all MFN Shares
either owned of record on the record date for voting at any annual or special
meeting of MFN stockholders to be held for the purpose of voting on the Equity
Issuances or for granting any written consent in connection with the
solicitation of written consents in lieu of such a meeting, or with respect to
which the Stockholders otherwise controls the vote, vote or cause to be voted
such shares (or execute written consents with respect to such shares) (i) in
favor of the Equity Issuances and (ii)
in favor of any other matter necessary for the consummation of the transactions
contemplated by the Warrant Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to the Initial
Holders as follows:
2.01 OWNERSHIP OF MFN SHARES. (a) Each Stockholder
represents and warrants to the Initial Holders that the Stockholder owns,
beneficially and of record, as of the date hereof, the number of MFN Shares as
set forth opposite such Stockholder's name on SCHEDULE I hereto, subject to no
rights of others and free and clear of all liens. Such Stockholder's right to
vote or dispose of the MFN Shares is not subject to any voting trust, voting
agreement, voting arrangement or proxy and such Stockholder has not entered into
any contract, option or other arrangement or undertaking with respect thereto.
2.02 AUTHORITY. This Voting Agreement has been duly and
validly executed and delivered by each Stockholder and constitutes a legal,
valid and binding obligation of the Stockholder enforceable against each
Stockholder in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.03 NO CONFLICTS. The execution and delivery by each
Stockholder of this Voting Agreement do not, and the performance by such
Stockholder of its obligations under this Voting Agreement will not:
(a) conflict with or result in a violation or breach of
any term or provision of its partnership agreement or other organizational
documents, if applicable, or any law, statute, rule or regulation or any order,
judgment or decree of any governmental or regulatory authority applicable to
each Stockholder or any of its properties or assets; or
(b) (i) conflict with or result in a violation or breach
of, (ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require each Stockholder to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, or (iv) result in the creation or imposition of any Lien upon any
of each Stockholder's properties or assets under, any contract, agreement, plan,
permit or license to which each Stockholder is a party.
2
2.04 GOVERNMENTAL APPROVALS AND FILINGS. No consent,
approval or action of, filing with or notice to any Governmental or Regulatory
Authority on the part of each Stockholder is required in connection with the
execution, delivery and performance of this Voting Agreement.
ARTICLE III
GENERAL PROVISIONS
3.01 NO ASSIGNMENT; BINDING EFFECT. Neither this Voting
Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other party hereto and any
attempt to do so will be void. Subject to the preceding sentence, this Voting
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns and legal
representatives.
3.02 SPECIFIC PERFORMANCE; LEGAL FEES. The parties
acknowledge that money damages are not an adequate remedy for violations of any
provision of this Voting Agreement and that any party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
for injunctive or such other relief as such court may deem just and proper in
order to enforce any such provision or prevent any violation hereof and, to the
extent permitted by applicable law, each party waives any objection to the
imposition of such relief. The parties hereto agree that, in the event that any
party to this Voting Agreement shall bring any legal action or proceeding to
enforce or to seek damages or other relief arising from an alleged breach of any
term or provision of this Voting Agreement by the other party, the prevailing
party in any such action or proceeding shall be entitled to an award of, and the
other party to such action or proceeding shall pay, the reasonable fees and
expenses of legal counsel to the prevailing party.
3.03 HEADINGS. The headings used in this Voting Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
3.04 INVALID PROVISIONS. If any provision of this Voting
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Voting Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Voting Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof and (iii) the remaining provisions of this Voting
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
3.05 GOVERNING LAW. This Voting Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to a contract executed and performed in such State, without giving
effect to the conflicts of laws principles thereof.
3
3.06 COUNTERPARTS. This Voting Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
3.07 TERM. The term of this Voting Agreement shall be one
year from the date hereof, PROVIDED, HOWEVER, that if the transactions
contemplated by the Note and Guarantee Agreements and the Warrant Agreement
shall have been abandoned by the Purchasers under the Note and Guarantee
Agreements or the commitments under the Note and Guarantee Agreements shall have
been terminated, then this Voting Agreement shall have no further force and
effect.
4
IN WITNESS WHEREOF, each party hereto has signed this Voting
Agreement, or caused this Voting Agreement to be signed by its officer thereunto
duly authorized, as of the date first above written.
METROMEDIA COMPANY
By: /s/ Metromedia Company
---------------------------------------
Name: Metromedia Company
Title:
/s/ John W. Kluge
--------------------------------------------
John W. Kluge
/s/ Stuart Subotnick
--------------------------------------------
Stuart Subotnick
/s/ Stephen A. Garofalo
--------------------------------------------
Stephen A. Garofalo
5
INITIAL HOLDERS
CITICORP USA, INC.
By: /s/ Caesar W. Wyszomirski
---------------------------------------
Name: Caesar W. Wyszomirski
Title: Vice President
MERRILL LYNCH GLOBAL ALLOCATION
FUND, INC.
By: /s/ Lisa A. O'Donnell
---------------------------------------
Lisa Ann O'Donnell
Director, Merrill Lynch Investment
Managers
Authorized Signatory
MERRILL LYNCH EQUITY/CONVERTIBLE
SERIES GLOBAL ALLOCATION PORTFOLIO
By: /s/ Lisa A. O'Donnell
---------------------------------------
Lisa Ann O'Donnell
Director, Merrill Lynch Investment
Managers
Authorized Signatory
MERRILL LYNCH VARIABLE SERIES
FUNDS, INC.
(MERRILL LYNCH GLOBAL ALLOCATION
FOCUS FUND)
By: /s/ Merrill Lynch
---------------------------------------
________________, Merrill Lynch
Investment Managers
Authorized Signatory
MERRILL LYNCH SERIES FUND, INC.
(GLOBAL ALLOCATION STRATEGY
PORTFOLIO)
By: /s/ Lisa A. O'Donnell
---------------------------------------
Lisa Ann O'Donnell
Director, Merrill Lynch Investment
Managers
Authorized Signatory
6
JOHN W. KLUGE, CHASE MANHATTAN
BANK AND STUART SUBOTNICK, TRUSTEES
UNDER A TRUST AGREEMENT BETWEEN
JOHN W. KLUGE, AS GRANTOR AND JOHN W.
KLUGE AND MANUFACTURERS
HANOVER TRUST COMPANY, AS TRUSTEES,
DATED MAY 30, 1984, AS AMENDED AND
RESTATED
By: /s/ Stuart Subotnick
---------------------------------------
Name: Stuart Subotnick
Title: Trustee
SCHEDULE I
----------
CLASS A COMMON STOCK CLASS B COMMON STOCK
NAME OF STOCKHOLDER ---------------------------- ----------------------------
------------------- DIRECTLY BENEFICIALLY DIRECTLY BENEFICIALLY
OWNED OWNED OWNED OWNED
----- ----- ----- -----
Metromedia Company.......................... -- 62,924,096 62,924,096 62,924,096
John W. Kluge............................... 2,477,100 65,401,196 -- 62,924,096
Stuart Subotnick............................ -- 67,607,596 -- 62,924,096
Stephen A. Garofalo......................... 82,509,671 89,407,224 -- --
EX-9
4
ex8-sc13d.txt
EXHIBIT 8
EXHIBIT 8
to SCHEDULE 13D
VOTING AGREEMENT
This VOTING AGREEMENT dated as of September 28, 2001 is made
and entered into by and among Nortel Networks Inc., a Delaware corporation
("NORTEL NETWORKS") and each of the stockholders listed on SCHEDULE I attached
hereto (each such stockholder, a "STOCKHOLDER").
WHEREAS, Nortel Networks and Metromedia Fiber Network, Inc., a
Delaware corporation ("MFN"), propose to enter into a warrant agreement, a copy
of which is attached hereto as ANNEX A (the "WARRANT Agreement"; capitalized
terms not defined herein shall have the meaning ascribed to them in the Warrant
Agreement), pursuant to which MFN will issue Warrants to Nortel Networks on the
terms provided for therein;
WHEREAS, each Stockholder owns the shares of capital stock or
voting securities of MFN set forth opposite its name on SCHEDULE I hereto (the
"MFN SHARES"); and
WHEREAS, as a condition to Nortel Networks' willingness to
enter into the Warrant Agreement and the Note Agreement, Nortel Networks desires
to establish in this Voting Agreement certain terms and conditions concerning
(i) the voting of the MFN Shares with respect to the issuances (the "EQUITY
ISSUANCES") of common stock (or securities convertible into or exercisable for
common stock) of the Issuer pursuant to the terms of the Note Agreement and
Warrant Agreement and (ii) the disposition of the MFN Shares;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Voting Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
ARTICLE I
COVENANTS OF THE STOCKHOLDER
1.01 APPROVAL OF EQUITY ISSUANCES.
(a) Until such time as the 20-day period provided for in
Rule 14c-2(b) under the Exchange Act has expired and the Equity Issuances have
been approved by the requisite number of shares of voting stock of MFN, no
Stockholder will sell, transfer or otherwise dispose of any of the MFN Shares or
any interest therein, exercise any right of conversion with respect to the MFN
Shares, deposit any of the MFN Shares into a voting trust or enter into a voting
agreement or arrangement or grant any proxy with respect thereto or enter into
any contract, option or other arrangement or undertaking with respect to the
direct or indirect disposition of any of the MFN Shares.
(b) Each Stockholder will, with respect to all MFN Shares
either owned of record on the record date for voting at any annual or special
meeting of MFN stockholders to be held for the purpose of voting on the Equity
Issuances or for granting any written consent in
connection with the solicitation of written consents in lieu of such a meeting,
or with respect to which the Stockholder otherwise controls the vote, vote or
cause to be voted such shares (or execute written consents with respect to such
shares) (i) in favor of the Equity Issuances and (ii) in favor of any other
matter necessary for the consummation of the transactions contemplated by the
Warrant Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Each Stockholder hereby represents and warrants to Nortel
Networks as follows:
2.01 OWNERSHIP OF MFN SHARES. The Stockholder represents
and warrants to Nortel Networks that such Stockholder owns, beneficially and of
record, as of the date hereof, the shares of capital stock or voting securities
of MFN set forth opposite its name on SCHEDULE I attached hereto, subject to no
rights of others and free and clear of all liens. The Stockholder's right to
vote or dispose of the MFN Shares is not subject to any voting trust, voting
agreement, voting arrangement or proxy and the Stockholder has not entered into
any contract, option or other arrangement or undertaking with respect thereto,
except for that certain Voting Agreement, dated as of September 6, 2001, in
favor of each Person named on the signature pages thereto, which is
substantially identical to this Agreement.
2.02 AUTHORITY. This Voting Agreement has been duly and
validly executed and delivered by the Stockholder and constitutes a legal, valid
and binding obligation of the Stockholder enforceable against the Stockholder in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles (regardless of whether such enforceability is considered in
a proceeding in equity or at law).
2.03 NO CONFLICTS. The execution and delivery by the
Stockholder of this Voting Agreement do not, and the performance by the
Stockholder of its obligations under this Voting Agreement will not:
(a) conflict with or result in a violation or breach of
any term or provision of its partnership agreement or other organizational
documents, or any law, statute, rule or regulation or any order, judgment or
decree of any governmental or regulatory authority applicable to the Stockholder
or any of its properties or assets; or
(b) (i) conflict with or result in a violation or breach
of, (ii) constitute (with or without notice or lapse of time or both) a default
under, (iii) require the Stockholder to obtain any consent, approval or action
of, make any filing with or give any notice to any Person as a result or under
the terms of, or (iv) result in the creation or imposition of any Lien upon any
of the Stockholder's properties or assets under, any contract, agreement, plan,
permit or license to which the Stockholder is a party.
2
2.04 GOVERNMENTAL APPROVALS AND FILINGS. No consent,
approval or action of, filing with or notice to any Governmental Authority on
the part of the Stockholder is required in connection with the execution,
delivery and performance of this Voting Agreement.
ARTICLE III
GENERAL PROVISIONS
3.01 NO ASSIGNMENT; BINDING EFFECT. Neither this Voting
Agreement nor any right, interest or obligation hereunder may be assigned by any
party hereto without the prior written consent of the other party hereto and any
attempt to do so will be void. Subject to the preceding sentence, this Voting
Agreement is binding upon, inures to the benefit of and is enforceable by the
parties hereto and their respective successors and assigns and legal
representatives.
3.02 SPECIFIC PERFORMANCE; LEGAL FEES. The parties
acknowledge that money damages are not an adequate remedy for violations of any
provision of this Voting Agreement and that any party may, in its sole
discretion, apply to a court of competent jurisdiction for specific performance
for injunctive or such other relief as such court may deem just and proper in
order to enforce any such provision or prevent any violation hereof and, to the
extent permitted by applicable law, each party waives any objection to the
imposition of such relief. The parties hereto agree that, in the event that any
party to this Voting Agreement shall bring any legal action or proceeding to
enforce or to seek damages or other relief arising from an alleged breach of any
term or provision of this Voting Agreement by the other party, the prevailing
party in any such action or proceeding shall be entitled to an award of, and the
other party to such action or proceeding shall pay, the reasonable fees and
expenses of legal counsel to the prevailing party.
3.03 HEADINGS. The headings used in this Voting Agreement
have been inserted for convenience of reference only and do not define or limit
the provisions hereof.
3.04 INVALID PROVISIONS. If any provision of this Voting
Agreement is held to be illegal, invalid or unenforceable under any present or
future law, and if the rights or obligations of any party hereto under this
Voting Agreement will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Voting Agreement will be construed
and enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof and (iii) the remaining provisions of this Voting
Agreement will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance herefrom.
3.05 GOVERNING LAW. This Voting Agreement shall be
governed by, and construed in accordance with, the laws of the State of New York
without giving effect to the conflicts of law principles thereof.
3
3.06 COUNTERPARTS. This Voting Agreement may be executed
in any number of counterparts, each of which will be deemed an original, but all
of which together will constitute one and the same instrument.
3.07 TERM. The term of this Voting Agreement shall be one
year from the date hereof, PROVIDED, HOWEVER, that if the transactions
contemplated by the Note Agreement and the Warrant Agreement shall have been
abandoned by the Purchasers, then this Voting Agreement shall have no further
force and effect.
[SIGNATURE PAGE FOLLOWS.]
4
IN WITNESS WHEREOF, each party hereto has signed this Voting
Agreement, or caused this Voting Agreement to be signed by its officer thereunto
duly authorized, as of the date first above written.
STOCKHOLDERS
METROMEDIA COMPANY
By: /s/ Nick Tanzi
---------------------------------------
Name: Nick Tanzi
---------------------------------------
Title: President & COO
---------------------------------------
John W. Kluge
/s/ John W. Kluge
--------------------------------------------
Stuart Subotnick
/s/ Stuart Subotnick
--------------------------------------------
Stephen A. Garofalo
/s/ Stephen A. Garofalo
--------------------------------------------
NORTEL NETWORKS INC.
By: /s/ Mitchell L. Stone
---------------------------------------
Name: Mitchell L. Stone
---------------------------------------
Title: Director, Customer Finance
---------------------------------------
SCHEDULE I
CLASS A COMMON STOCK CLASS B COMMON STOCK
NAME OF STOCKHOLDER ------------------------- ----------------------------
------------------- DIRECTLY BENEFICIALLY DIRECTLY BENEFICIALLY
OWNED OWNED OWNED OWNED
----- ----- ----- -----
Metromedia Company.................. - - 62,924,096 -
John W. Kluge....................... - 3,177,000 (1) - 62,924,096 (2)
Stuart Subotnick.................... - 4,683,500 (3) 4,454,448 63,084,096 (4)
Stephen A. Garofalo................. 82,334,846 6,259,000 (5) - -
1 Includes options to purchase 700,000 shares of the Company's Class A Common
Stock at an exercise price of $28.5625 per share owned by the Kluge Trust
(i.e., The Trust Agreement, dated May 30, 1984 (as amended and restated),
between John W. Kluge, as Grantor, and John W. Kluge, Chase Manhattan Bank
and Stuart Subotnick, as Trustees.
2 Represents shares held by Metromedia Company.
3 Includes presently exercisable options to purchase 2,733,500 and 700,000
shares of the Company's Class A Common Stock at an exercise price of
$0.12313 and $28,5625 per share, respectively. Also includes 1,250,000
shares held by three trusts for which Mr. Subotnick serves as Trustee.
4 Includes 62,924,096 shares owned by Metromedia Company and shares owned by
the Subotnick Family Trust, the Paula Subotnick Trust and the Bryan
Subotnick Trust.
5 Includes presently exercisable options to purchase 1,233,962, 4,761,489 and
263,549 shares of the Company's Class A Common Stock owned by Mr. Garofalo,
the Stephen A. Garofalo Annuity Trust No. 1 and the Garofalo Annuity Trust
No. 2, respectively, having an exercise price of $0.12313 per share.
7
EX-99
5
ex10sc13d.txt
EXHIBIT 10
EXHIBIT 10
to SCHEDULE 13D
JOINDER AGREEMENT, dated as of October 1, 2001 between METROMEDIA FIBER
NETWORK, INC, a Delaware Corporation (the "ISSUER"), and the other parties
signatories hereto (this "JOINDER AGREEMENT").
A. Reference is made to that certain Warrant Agreement dated as
of October 1, 2001 (as modified and supplemented and in effect
from time to time, the "WARRANT AGREEMENT"), between the
Issuer and the Initial Holders. Each capitalized term used but
not defined herein shall have the meaning assigned to such
term in the Warrant Agreement; and
B. Section 7.01 of the Agreement requires that the Issuer shall
deliver to the Initial Holders this Joinder Agreement executed
by the Issuer, the Principal Shareholder and the Principal
Shareholder Beneficial Owners.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby agrees that:
1. The undersigned: (a) is delivering this Joinder Agreement
pursuant to Section 7.01(c) of the Warrant Agreement and (b) acknowledges
receipt of a copy of the Warrant Agreement.
2. The undersigned hereby agrees to be bound by the provisions of
Article VII of the Warrant Agreement .
IN WITNESS WHEREOF, the undersigned has signed this Joinder Agreement
as of the date first above written.
METROMEDIA COMPANY
By: /s/ Metromedia Company
---------------------------------------
Name: Metromedia Company
Title:
/s/ John W. Kluge
--------------------------------------------
John W. Kluge
/s/ Stuart Subotnick
--------------------------------------------
Stuart Subotnick
Acknowledged and Agreed to as
of the date first above written:
METROMEDIA FIBER NETWORK, INC.
By: /s/ Nick Tanzi
-------------------------
Name: Nick Tanzi
Title: President & COO
EX-99
6
ex11-sc13d.txt
EXHIBIT 11
EXHIBIT 11
to SCHEDULE 13D
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of September 28, 2001 between METROMEDIA
FIBER NETWORK, INC, a Delaware Corporation (the "ISSUER"), and the other parties
signatories hereto (this "JOINDER AGREEMENT").
A. Reference is made to that certain Warrant Agreement dated as
of September 28, 2001 (as modified and supplemented and in
effect from time to time, the "WARRANT AGREEMENT"), between
the Issuer and the Initial Holders. Each capitalized term used
but not defined herein shall have the meaning assigned to such
term in the Warrant Agreement; and
B. Section 7.01 of the Agreement requires that the Issuer shall
deliver to the Initial Holder this Joinder Agreement executed
by the Issuer, the Principal Shareholder and the Principal
Shareholder Beneficial Owners.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby agrees that:
1. The undersigned: (a) is delivering this Joinder Agreement
pursuant to Section 7.01(c) of the Warrant Agreement and (b) acknowledges
receipt of a copy of the Warrant Agreement.
2. The undersigned hereby agrees to be bound by the provisions of
Article VII of the Warrant Agreement .
IN WITNESS WHEREOF, the undersigned has signed this Joinder Agreement
as of the date first above written.
METROMEDIA COMPANY
By: /s/ Nick Tanzi
---------------------------------------
Name: Nick Tanzi
Title: President & COO
JOHN W. KLUGE
By: /s/ John W. Kluge
---------------------------------------
Name: John W. Kluge
Title:
STUART SUBOTNICK
By: /s/ Stuart Subotnick
---------------------------------------
Name: Stuart Subotnick
Title:
Acknowledged and Agreed to as
of the date first above written:
METROMEDIA FIBER NETWORK, INC.
By: /s/ Nick Tanzi
-------------------------
Name: Nick Tanzi
Title: President & COO
EX-99
7
ex12sc13d.txt
EXHIBIT 12
EXHIBIT 12
to SCHEDULE 13D
JOINDER AGREEMENT
JOINDER AGREEMENT, dated as of October 1, 2001 between METROMEDIA FIBER
NETWORK, INC, a Delaware Corporation (the "ISSUER"), and the other parties
signatories hereto (this "JOINDER AGREEMENT").
A. Reference is made to that certain Warrant Agreement dated as
of October 1, 2001 (as modified and supplemented and in effect
from time to time, the "WARRANT AGREEMENT"), between the
Issuer and Bechtel (and each assignee thereof, the "INITIAL
HOLDER"). Each capitalized term used but not defined herein
shall have the meaning assigned to such term in the Warrant
Agreement; and
B. SECTION 7.01(C) of the Warrant Agreement requires that the
Issuer shall deliver to the Initial Holder this Joinder
Agreement executed by the Issuer, the Principal Shareholder
and the Principal Shareholder Beneficial Owners.
In consideration of the foregoing and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby agrees that:
1. The undersigned: (a) is delivering this Joinder Agreement
pursuant to SECTION 7.01(C) of the Warrant Agreement and (b) acknowledges
receipt of a copy of the Warrant Agreement.
2. The undersigned hereby agrees to be bound by the provisions of
Article VII of the Warrant Agreement .
[SIGNATURES ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the undersigned has signed this Joinder Agreement
as of the date first above written.
METROMEDIA COMPANY
By: /s/ David Persing
---------------------------------------
Name: David Persing
Title: Senior Vice President
JOHN W. KLUGE
By: /s/ John W. Kluge
---------------------------------------
John W. Kluge
STUART SUBOTNICK
By: /s/ Stuart Subotnick
---------------------------------------
Stuart Subotnick
Acknowledged and Agreed to as
of the date first above written:
METROMEDIA FIBER NETWORK, INC.
By: /s/ Nick Tanzi
-------------------------
Name: Nick Tanzi
Title: President & COO
EX-99
8
ex14-sc13d.txt
EXHIBIT 14
EXHIBIT 14
to SCHEDULE 13D
JOINT FILING AGREEMENT
The undersigned acknowledge and agree that the foregoing
statement on Schedule 13D is filed on behalf of each of the undersigned and that
all subsequent amendments to this statement on Schedule 13D shall be filed on
behalf of each of the undersigned without the necessity of filing additional
joint filing agreement. The undersigned acknowledge that each shall be
responsible for the timely filing of such amendments, and for the completeness
and accuracy of the information concerning him, her or it contained herein, but
shall not be responsible for the completeness and accuracy of the information
concerning the other entities or persons, except to the extent that he, she or
it knows or has reason to believe that such information is accurate.
Dated: October 18, 2001
METROMEDIA COMPANY
By: /s/ Stuart Subotnick
---------------------------------------
Name: Stuart Subotnick
Title:
JOHN W. KLUGE, CHASE MANHATTAN BANK AND
STUART SUBOTNICK, TRUSTEES UNDER A TRUST
AGREEMENT BETWEEN JOHN W. KLUGE, AS GRANTOR,
AND JOHN W. KLUGE AND MANUFACTURERS HANOVER
TRUST COMPANY, AS TRUSTEES, DATED MAY 30,
1984, AS AMENDED AND RESTATED
By: /s/ John W. Kluge
---------------------------------------
Name: John W. Kluge
Title:
/s/ Stuart Subotnick
--------------------------------------------
Stuart Subotnick
/s/ John W. Kluge
--------------------------------------------
John W. Kluge