Exhibit 10.8
EXECUTION COPY
AMENDMENT NO. 1 TO
NOTES REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE NOTES REGISTRATION RIGHTS
AGREEMENT, dated as of October 1, 2001 (this "AMENDMENT"), is made between
METROMEDIA FIBER NETWORK, INC., a Delaware corporation (the "COMPANY"), and
VERIZON INVESTMENTS INC., a Delaware corporation formerly known as ▇▇▇▇ Atlantic
Investments, Inc. (the "PURCHASER"). Capitalized terms used herein that are not
defined herein shall have the meanings ascribed thereto in the Notes
Registration Rights Agreement (as defined below).
RECITALS:
WHEREAS, as of October 7, 1999, the Company and the Purchaser
entered into that certain Securities Purchase Agreement (the "PURCHASE
AGREEMENT"), pursuant to which, among other things, the Company issued and sold
to the Purchaser shares of Class A common stock of the Company, par value $0.01
per share ("CLASS A COMMON STOCK"), and $975,281,000 principal amount of the
Company's 6.15% Convertible Subordinated Notes due 2010 (the "OLD CONVERTIBLE
NOTES"), which Convertible Notes are convertible into shares of Class A Common
Stock;
WHEREAS, in connection with the issuance and sale of the Class
A Common Stock and the Convertible Notes, the Company and the Purchaser entered
into that certain Notes Registration Rights Agreement, dated as of March 6, 2000
(as amended hereby, the "NOTES REGISTRATION RIGHTS AGREEMENT");
WHEREAS, the Company and the Purchaser executed that certain
Notes Purchase Agreement, dated as of October 1, 2001 (the "NEW PURCHASE
AGREEMENT"), pursuant to which, among other things, the Purchaser will purchase
from the Company one or more 8.5% Senior Secured Convertible Notes due 2011 in
the aggregate principal amount of $50,000,000 (the "NEW CONVERTIBLE NOTES"),
which shall be convertible into shares of Class A Common Stock pursuant to, and
in accordance with, the terms of the Indenture, dated as of October 1, 2001, by
and between the Company and Wilmington Trust Company, as trustee (the "NEW 8.5%
NOTES INDENTURE");
WHEREAS, the Company and the Purchaser executed that certain
Exchange Agreement, dated as of October 1, 2001, pursuant to which the Company
will exchange, and the Purchaser will surrender for exchange, the Old
Convertible Notes for $500,000,000 principal amount of the Company's 6.15%
Series A Convertible Subordinated Notes due March 16, 2010 and $475,281,000
principal amount of the Company's 6.15% Series B Convertible Subordinated Notes
due March 16, 2010, the terms of which shall be governed by an indenture, dated
as of October 1, 2001 (the "NEW 6.15% NOTES INDENTURE"), between the Company and
U.S. Bank Trust National Association, as trustee; and
WHEREAS, the Company and the Purchaser desire by this
Amendment to amend certain provisions of the Notes Registration Rights
Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1. AMENDMENTS TO THE NOTES REGISTRATION RIGHTS
AGREEMENT.
(a) Section 1 of the Notes Registration Rights Agreement
is hereby amended by adding thereto the following new definitions in the
appropriate alphabetical location:
"NEW CONVERTIBLE NOTES" means one or more 8.5% senior
secured convertible notes due 2011 in the aggregate principal
amount of $50,000,000 issued pursuant to the New 8.5% Notes
Indenture.
"NEW 6.15% NOTES" means, collectively, the Series A
Convertible Notes and the Series B Convertible Notes.
"NEW 6.15% NOTES INDENTURE" means the indenture dated
as of October 1, 2001, by and between the Company and U.S.
Bank Trust National Association, as trustee, relating to the
New 6.15% Notes as such indenture may be amended, supplemented
or otherwise modified from time to time in accordance with the
terms thereof.
"NEW 8.5% NOTES INDENTURE" means the indenture, dated
as of October 1, 2001, by and between the Company and
Wilmington Trust Company, as trustee, relating to the New
Convertible Notes, as such Indenture may be amended,
supplemented or otherwise modified from time to time in
accordance with the terms thereof.
"PUBLIC RESALE" means a transfer of Registrable
Securities pursuant to (A) a bona fide secondary offering
registered under the Securities Act effectuated through the
exercise by the Purchaser or its permitted transferee of its
registration rights as contemplated by Section 2, 3 or 4 of
this Agreement, (B) a purchase agreement with a placement
agent or group of placement agents that contemplates the
immediate resale of securities by such placement agent or
group of placement agents, pursuant to the resale exemption
provided by Rule 144A, solely to QIBs and other permitted
purchasers under Rule 144A or in a transfer permitted by
Regulation S, or (C) bona fide "brokers transactions" as
permitted by the exemption from registration of the resale of
the shares of Class A Common Stock underlying the Convertible
Notes provided by Rule 144.
"QIB" means a "qualified institutional buyer" as
defined in Rule 144A.
"REGULATION S" means Regulation S promulgated under
the Securities Act.
"RULE 144A" means Rule 144A promulgated under the
Securities Act.
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"SERIES A CONVERTIBLE NOTES" shall mean $500,000,000
principal amount of the Company's 6.15% Series A Convertible
Subordinated Notes due March 16, 2010 issued pursuant to the
New 6.15% Notes Indenture.
"SERIES B CONVERTIBLE NOTES" shall mean $475,281,000
principal amount of the Company's 6.15% Series B Convertible
Subordinated Notes due March 16, 2010 issued pursuant to the
New 6.15% Notes Indenture.
(b) Section 1 of the Notes Registration Rights Agreement
is hereby amended by amending and restating the following definitions in their
entirety to read as follows:
"CONVERTIBLE NOTES" shall mean the New 6.15% Notes and the New
Convertible Notes.
"EQUITY REGISTRATION RIGHTS AGREEMENT" shall mean that certain
Equity Registration Rights Agreement, dated as of March 6, 2000, as
amended by Amendment No. 1 to Registration Rights Agreement, dated as
of October 1, 2001, by and among the Company and the Purchaser, as such
agreement may be further amended, modified or supplemented from time to
time.
"HOLDER" shall mean the Purchaser and any transferee of the
Purchaser to whom Registrable Securities have been transferred, other
than a transferee to whom such Registrable Securities have been
transferred pursuant to a Public Resale and who continues to be
entitled to the rights of a Holder hereunder.
"STOCKHOLDERS AGREEMENT" shall mean the Amended and Restated
Stockholders Agreement, dated as of October 1, 2001, by and among the
Company, the Purchaser and the stockholders of the Company listed on
Schedule I thereto, as such agreement may be amended, modified or
supplemented from time to time.
(c) The second sentence of Section 2(a) of the Notes
Registration Rights Agreement shall be amended by inserting the following clause
after "as expeditiously as possible," and before "file with the SEC": "but in
any event no later than thirty (30) days (excluding any days which occur during
a permitted Blackout Period under Section 5 below) after receipt of a written
request for a Demand Registration,".
(d) The proviso contained in the second sentence of
Section 2(a) of the Notes Registration Rights Agreement is hereby amended by
replacing "$100,000,000" with "$10,000,000."
(e) The first sentence of Section 2(c) of the Notes
Registration Rights Agreement is hereby amended and restated in its entirety to
read as follows:
"Holders shall be entitled to five (5) registrations of
Registrable Securities pursuant to this Section 2."
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(f) Section 4 of the Notes Registration Rights Agreement
shall be renamed Section 4(a) and a new Section 4(b) of the Notes Registration
Rights Agreement shall be added to read as follows:
"(b) If (i) any Shelf Registration Statement has not
been declared effective by the SEC on or prior to the date on
which such Shelf Registration Statement is required to be
declared effective pursuant to Section 4(a), or (ii) the Shelf
Registration Statement is filed and declared effective but
shall thereafter cease to be effective at any time within the
time period required for effectiveness in Section 4(a) above
without being succeeded immediately by a post-effective
amendment to the Shelf Registration Statement that cures such
failure and that is itself immediately declared effective
(each such event referred to in clauses (i) and (ii), a
"REGISTRATION DEFAULT"), the Company shall pay liquidated
damages ("LIQUIDATED DAMAGES") to the Purchaser in an amount
equal to $0.01 per share of Registrable Securities covered by
such Shelf Registration Statement for each week or portion
thereof during which any Registration Default continues (other
than with respect to any period during which the Purchaser is
required to discontinue the disposition of Registrable
Securities pursuant to the Section 5 hereof). The amount of
such Liquidated Damages shall increase on each 90-day
anniversary of the day the first Registration Default occurred
by an additional $0.01 per share of Registrable Securities
covered by such Shelf Registration Statement for each week or
portion thereof during which any Registration Default
continues until all Registration Defaults have been cured, up
to a maximum amount of Liquidated Damages of $0.05 per week or
portion thereof per share of Registrable Securities covered by
such Shelf Registration Statement. All accrued Liquidated
Damages shall be paid by wire transfer of immediately
available funds or by federal funds check on the last day of
each four week period to an account previously designated in
writing to the Company by the Purchaser. Following the cure of
all Registration Defaults relating to any particular
Registrable Security, the accrual of Liquidated Damages with
respect to such Registrable Security will cease.
All obligations of the Company set forth in the
preceding paragraph that are outstanding with respect to any
Registrable Security at the time such security ceases to be a
Registrable Security shall survive until such time as all such
obligations have been paid in full."
(g) Sections 6(a) through 6(n) of the Notes Registration
Rights Agreement are hereby amended by replacing "the Shelf Registration," in
each instance in which such clause appears, with "any Shelf Registration," and
by replacing "the Shelf Registration Statement," in each instance in which such
clause appears, with "any Shelf Registration Statement."
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(h) Section 6(n) of the Notes Registration Rights
Agreement is hereby amended by replacing "$100,000,000" with "$10,000,000."
(i) Section 9 of the Notes Registration Rights Agreement
shall be renamed Section 9(A), and a new Section 9(b) shall be added to read as
follows:
"(b) The Company agrees (1) not to effect any
public or private offer, sale or distribution of any of its
equity securities or any class or series of its capital stock
having a preference in liquidation or with respect to
dividends, including a sale pursuant to Regulation D under the
Securities Act (other than any such sale or distribution of
such securities in connection with any merger or consolidation
by the Company or any subsidiary of the Company or the
acquisition by the Company or a subsidiary of the Company of
the capital stock or substantially all the assets of any other
Person or in connection with any employee stock option or
other benefit plan), during the 10-day period prior to, and
during the 90-day period beginning with, the effectiveness of
any Registration Statement to the extent timely notified in
writing by a Holder of Registrable Securities or the managing
underwriters in an underwritten offering (except as part of
such underwritten offering if permitted, or pursuant to
registrations on Forms S-4 or S-8 or any successor form to
such Registration Statement forms) and (2) during the
aforementioned period to use reasonable best efforts to cause
each Holder of each of its privately placed equity securities
or any class or series of its capital stock having a
preference in liquidation or with respect to dividends
purchased from the Company at any time on or after the date of
this Agreement to agree not to effect any public sale or
distribution of any such securities during such period,
including a sale pursuant to Rule 144 under the Securities Act
(except as part of such registration, if permitted)."
(j) The last sentence of the provision that is hereby
renamed SECTION 9(a) of the Notes Registration Rights Agreement is hereby
amended by inserting "and if the Company and its directors, officers and other
significant stockholders enter into similar agreements" at the end of such
sentence.
(k) Section 13(d) of the Notes Registration Rights
Agreement is hereby amended and restated in its entirety to read as follows:
"(d) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns
of each of the parties hereto including any person to whom
Registrable Securities are transferred, other than a
transferee to whom any such Registrable Securities have been
transferred pursuant to a Public Resale."
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SECTION 2. MISCELLANEOUS.
(a) This Amendment shall become effective upon its
execution and delivery by the Company and the Purchaser.
(b) On and after the date hereof each reference in the
Notes Registration Rights Agreement to "this Agreement," "herein" or words of
like import shall mean and be a reference to the Notes Registration Rights
Agreement as amended hereby. No reference to this Amendment need be made in any
instrument or document at any time referring to the Notes Registration Rights
Agreement. A reference to the Notes Registration Rights Agreement in any such
instrument or document shall be deemed to be a reference to the Notes
Registration Rights Agreement as amended hereby. Except as expressly amended
hereby, in all other respects the Notes Registration Rights Agreement shall
remain in full force and effect.
(c) This Amendment shall be governed by, construed and
enforced in accordance with the laws of the State of New York without giving
effect to the conflicts of laws provisions thereof. Each of the parties hereby
submits to personal jurisdiction and waives any objection as to venue in the
County of New York, State of New York. Service of process on the parties in any
action arising out of or relating to this Agreement shall be effective if mailed
to the parties in accordance with Section 13(c) of the Notes Registration Rights
Agreement. The parties hereto waive all right to trial by jury in any action or
proceeding to enforce or defend any rights hereunder.
(d) This Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties have executed this Amendment
as of the date first written above.
METROMEDIA FIBER NETWORK, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇
Title: President & CEO
VERIZON INVESTMENTS INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice-President