Exhibit 10.9
EXECUTION COPY
AMENDMENT NO. 1 TO
EQUITY REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE EQUITY 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 Equity
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");
WHEREAS, in connection with the issuance and sale of the Class
A Common Stock, the Company and the Purchaser entered into that certain Equity
Registration Rights Agreement, dated as of March 6, 2000 (the "EQUITY
REGISTRATION RIGHTS AGREEMENT"); and
WHEREAS, the Company and the Purchaser desire by this
Amendment to amend certain provisions of the Equity Registration Rights
Agreement.
NOW, THEREFORE, it is hereby agreed as follows:
SECTION 1. Amendments to the Equity Registration Rights
Agreement.
(a) SECTION 1 of the Equity Registration Rights Agreement
is hereby amended by adding thereto the following new definitions in the
appropriate alphabetical location:
"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 or (B) a purchase agreement with a placement
agent or group of placement agents that contemplates the
immediate resale of securities by such placement agent
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 or as otherwise permitted by the
exemption from registration of the resale of the shares of
Class A Common Stock 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.
(b) SECTION 1 of the Equity Registration Rights Agreement is hereby
amended by amending and restating the following definitions in their entirety to
read as follows:
"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.
"NOTES REGISTRATION RIGHTS AGREEMENT" shall mean that certain
Notes 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.
"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 Equity 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
Equity Registration Rights Agreement is hereby amended by replacing
"$100,000,000" with "$10,000,000."
(e) Section 4 of the Equity Registration Rights Agreement shall be
renamed Section 4(a) and is hereby amended and restated in its entirety as
follows:
"4. (a) In the event that (i) the Purchaser desires
to resell any of the Registrable Securities held by it
(subject to the value threshold set forth in the proviso of
Section 2(a) above) or (ii) the Purchaser or one of its
Affiliates issues Securities (the "DERIVATIVE SECURITIES")
that by their terms are convertible into or exchangeable for
Registrable Securities and
which will be issued in reliance on Regulation S and/or Rule
144A under the Securities Act, upon the written request of the
Purchaser, as promptly as practicable, but in any event no
later than 30 days after receipt of such request, Company
shall file with the SEC and thereafter use its reasonable best
efforts to cause to be declared effective as promptly as
practicable, but no later than 90 days after receipt of such
request, a registration statement (a "SHELF REGISTRATION
STATEMENT") on an appropriate form under the Securities Act
relating to such Registrable Securities or to the conversion
or exchange of the Derivative Securities, as the case may be,
from time to time in accordance with the methods and
distribution set forth in the Shelf Registration Statement and
Rule 415 under the Securities Act (hereafter, a "SHELF
REGISTRATION"). Company shall use its reasonable best efforts
to keep any Shelf Registration Statement continuously
effective in order to permit the prospectus included therein
to be lawfully delivered to holders of the Registrable
Securities or the Derivative Securities, as the case may be,
for a period of time until such time as all the Registrable
Securities have been resold or all the Derivative Securities
have been converted or exchanged, as the case may be, pursuant
thereto."
(f) A new Section 4(b) of the Equity 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 or
Derivative Securities to be covered by such Shelf Registration
Statement, as the case may be, 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 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 or
Derivative Securities to be covered by such Shelf Registration
Statement, as the case may be, 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 or Derivative
Securities to be covered by such Shelf Registration Statement,
as the case may be. 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 or
Derivative Security, as the case may be, the accrual of
Liquidated Damages with respect to such Registrable Security
or Derivative Security, as the case may be, 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) Section 6(n) of the Equity Registration Rights Agreement is hereby
amended by replacing "$100,000,000" with "$10,000,000."
(h) Sections 6(a) through 6(n) of the Equity 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."
(i) Section 9 of the Equity 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 Equity 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 Equity 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."
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 Equity
Registration Rights Agreement to "this Agreement," "herein" or words of like
import shall mean and be a reference to the Equity 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 Equity Registration Rights Agreement. A
reference to the Equity Registration Rights Agreement in any such instrument or
document shall be deemed to be a reference to the Equity Registration Rights
Agreement as amended hereby. Except as expressly amended hereby, in all other
respects the Equity 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 Equity 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