Exhibit 4
EXECUTION COPY
VOTING AGREEMENT
VOTING AGREEMENT, dated as of June 22, 1999 (this
"AGREEMENT"), by and among AboveNet Communications Inc., a Delaware corporation
(the "COMPANY"), and the stockholders of Metromedia Fiber Network, Inc., a
Delaware corporation ("MFN"), listed on Schedule I hereto (each, a "SHAREHOLDER"
and, collectively, the "SHAREHOLDERS").
WHEREAS, the Company and MFN propose to enter into an
Agreement and Plan of Merger, dated as of the date hereof (the "MERGER
AGREEMENT"), which provides for, among other things, the merger of a wholly
owned subsidiary of MFN with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, the Shareholders are holders
of record or Beneficially Own (as defined herein) of all of the shares of Class
B common stock, par value $.01 per share, of MFN (the "CLASS B COMMON STOCK");
and
WHEREAS, as a condition to the willingness of the Company to
enter into the Merger Agreement, the Company has required that each Shareholder
agrees, and in order to induce the Company to enter into the Merger Agreement,
each Shareholder has agreed, severally and not jointly, to enter into this
Agreement with respect to all of the shares of Class B Common Stock now held of
record or Beneficially Owned and which may hereafter be acquired by such
Shareholder (collectively, the "SHARES").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section 1.1 GENERAL. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Merger Agreement.
Section 1.2 BENEFICIAL OWNERSHIP. For purposes of this
Agreement, "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")),
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including pursuant to any agreement, arrangement or understanding, whether or
not in writing.
ARTICLE II
Section 2.1 VOTING AGREEMENT. Each of the Shareholders hereby
agrees as follows:
(a) to appear, or cause the holder of record on any
applicable record date with respect to any Shares and any shares of
Parent Common Stock Beneficially Owned by such Shareholder (the "RECORD
HOLDER") to appear, in person or by proxy, for the purpose of obtaining
a quorum at any annual or special meeting of stockholders of MFN and at
any adjournment thereof at which matters relating to the Merger, the
Merger Agreement, the issuance of shares of Parent Common Stock
pursuant to the Merger or any transaction contemplated by the Merger
Agreement are considered; and
(b) at any meeting of the stockholders of MFN however
called, and in any action by consent of the stockholders of MFN, to
vote, or cause to be voted by the Record Holder, in person or by proxy,
the Shares held of record or Beneficially Owned by such Shareholder in
favor as required of the Merger, the Merger Agreement (as amended from
time to time), the issuance of the shares of Parent Common Stock
pursuant to the Merger and the transactions contemplated by the Merger
Agreement.
Section 2.2 NO OWNERSHIP INTEREST. Except as set forth in
Section 2.1, nothing contained in this Voting Agreement shall be deemed to vest
in the Company any direct or indirect ownership or incidence of ownership of or
with respect to any Shares. All rights, ownership and economic benefits of and
relating to the Shares shall remain and belong to the Shareholders, and the
Company shall have no authority to manage, direct, restrict, regulate, govern,
or administer any of the policies or operations of MFN or exercise any power or
authority to direct the Shareholders in the voting of any of the Shares except
as otherwise provided herein, or the performance of the Shareholders' duties or
responsibilities as stockholders of MFN.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
Each of the Shareholders hereby represents and warrants,
severally and not jointly, to the Company as follows:
Section 3.1 AUTHORITY RELATIVE TO THIS AGREEMENT. Such
Shareholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. Where such Shareholder is a corporation,
partnership or other entity, the execution and delivery of this Agreement by
such Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby have been duly and validly authorized by the board of
directors or other governing body of such Shareholder, and no other proceedings
on the part of such Shareholder are necessary to authorize this Agreement or to
consummate such transactions and where such Shareholder is an individual, such
individual has the capacity to enter into this Agreement. This Agreement has
been duly and validly executed and delivered by such Shareholder and, assuming
the due authorization, execution and delivery by the other parties hereto,
constitutes a legal, valid and binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies.
Section 3.2 NO CONFLICT. (a) The execution and delivery of
this Agreement by such Shareholder does not, and the performance of this
Agreement by such Shareholder shall not, (i) where such Shareholder is a
corporation, partnership or other entity, conflict with or violate the
organizational documents of such Shareholder, (ii) conflict with or violate any
agreement, arrangement, law, rule, regulation, order, judgment or decree to
which such Shareholder is a party or by which such Shareholder (or the Shares
held of record or Beneficially Owned by such Shareholder) is bound or affected
or (iii) result in any breach of or constitute a default (or an event that with
notice or lapse or time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Shares held of record or
Beneficially Owned by such Shareholder pursuant to any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Shareholder is a party or by which such
Shareholder (or the Shares held of record or Beneficially Owned by such
Shareholder) is bound or affected, except, in the case of clauses (ii) and (iii)
of this Section 3.2, for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent the performance by such Shareholder of
its material obligations under this Agreement.
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(b) The execution and delivery of this Agreement by
such Shareholder does not, and the performance of this Agreement by such
Shareholder shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any governmental entity except for
applicable requirements, if any, of federal or state securities and antitrust
laws and except where the failure to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications, would not
prevent the performance by such Shareholder of its material obligations under
this Agreement.
Section 3.3 TITLE TO THE SHARES. As of the date hereof, such
Shareholder is the record or Beneficial Owner of the Shares listed opposite the
name of such Shareholder on Schedule I hereto. Such Shareholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares held of record or Beneficially Owned by such
Shareholder. The Shares listed opposite the name of such Shareholder on Schedule
I hereto are owned free and clear of all security interests, liens, claims,
pledges, options, rights of first refusal, limitations on such Shareholder's
voting rights, charges and other encumbrances of any nature whatsoever other
than Liens under applicable Law.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER
Section 4.1 NO INCONSISTENT AGREEMENTS. Each Shareholder
hereby represents, warrants, covenants and agrees that, except as contemplated
by this Agreement and the Merger Agreement, such Shareholder has not and shall
not, and will use its reasonable best efforts to not permit any Person under
such Shareholder's control (including any Record Holder) to, enter into any
voting agreement or grant a proxy or power of attorney with respect to the
Shares held of record or Beneficially Owned by such Shareholder which, in either
case, is inconsistent with this Agreement.
Section 4.2 TRANSFER OF TITLE. Each Shareholder hereby
covenants and agrees that such Shareholder will not, prior to the termination of
this Agreement, either directly or indirectly, offer or otherwise agree to sell,
assign, pledge, hypothecate, transfer, exchange, or dispose of any Shares or
options, warrants or other convertible securities to acquire or purchase shares
of Class B Common Stock (collectively, "DERIVATIVE SECURITIES") or any other
securities or rights convertible into or exchangeable for shares of Class B
Common Stock, owned either directly or indirectly by such Stockholder or with
respect to which such Stockholder has the power of disposition, whether now or
hereafter acquired, including but not limited to, by means of any conversion or
exchange of shares of Class B Common Stock into shares of Parent Common Stock,
without the prior written consent of the Company (provided nothing contained
herein will be deemed to restrict the sale, transfer,
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assignment, exercise or conversion of any shares of Parent Common Stock or
Parent Options and Warrants outstanding on the date hereof), unless the Person
to whom Shares or Derivative Securities have been sold, assigned, pledged,
hypothecated, transferred, exchanged or disposed agrees to be bound by this
Agreement as if a party hereto. Each Shareholder hereby agrees and consents to
the entry of stop transfer instructions by MFN against the transfer of any
Shares inconsistent with the terms of this Section 4.2.
ARTICLE V
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement shall terminate upon
the earlier to occur of (i) the Effective Time, (ii) the termination of the
Merger Agreement in accordance with its terms or (iii) unless extended by
agreement of each of the parties hereto, December 31, 1999. Upon such
termination, no party shall have any further obligations or liabilities
hereunder; PROVIDED, HOWEVER, that nothing in this Agreement shall relieve any
party from liability for the breach of any of its representations, warranties,
covenants and agreements set forth in this Agreement prior to such termination.
Section 5.2 ADDITIONAL SHARES. If, after the date hereof, a
Shareholder acquires the right to vote any additional shares of Class B Common
Stock or Parent Common Stock (any such shares shall be referred to herein as
"ADDITIONAL SHARES"), including, without limitation, upon exercise or conversion
of any Derivative Security or through any stock dividend or stock split, the
provisions of this Agreement applicable to the Shares (other than the provisions
of Section 4.2 in the case of shares of Parent Common Stock) shall be applicable
to such Additional Shares as if such Additional Shares had been outstanding
Shares as of the date hereof. The provisions of the immediately preceding
sentence shall be effective with respect to Additional Shares without action by
any Person immediately upon the acquisition by a Shareholder of record or
Beneficial Ownership of such Additional Shares.
Section 5.3 SPECIFIC PERFORMANCE. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
Section 5.4 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the Company and the Shareholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written
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and oral, between the Company and the Shareholders with respect to the subject
matter hereof.
Section 5.5 AMENDMENT. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
Section 5.6 SEVERABILITY. If any term or other provision of
this Agreement is invalid, illegal or incapable of being enforced by any rule or
law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereby shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated.
Section 5.7 NOTICES. All notices and other communications
given or made pursuant hereto shall be in writing and shall be deemed to have
been duly given or made and shall be effective upon receipt, if delivered
personally, upon receipt of a transmission confirmation if sent by facsimile
(with a confirming copy sent by overnight courier) and on the next business day
if sent by Federal Express, United Parcel Service, Express Mail or other
reputable overnight courier to the parties at the following addresses (or at
such other address for a party as shall be specified by notice):
If to a Shareholder to the address set forth on Schedule I
hereto.
If to the Company, to:
AboveNet Communications Inc.
50 W. San Fernando Street
Suite # 1010
San Jose, CA 95113
Attention: Sherman Tuan
Fax: (408) 367-6688
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, CA 90071
Attention: Nicholas P. Saggese, Esq.
Fax: (213) 687-7804
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Section 5.8 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware applicable to
agreements made and to be performed entirely within such state without giving
effect to the provisions thereof relating to conflicts of law.
Section 5.9 OBLIGATIONS OF SHAREHOLDERS. The obligations of
the Stockholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances will any Stockholder have any liability or obligation with respect
to any misrepresentation or breach of covenant of any other Shareholder.
Section 5.10 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall be an original and all of which,
when taken together, shall constitute one and the same instrument.
Section 5.11 OFFICERS AND DIRECTORS. No person who is or
becomes (during the term of this Agreement) a director or officer of MFN makes
any agreement or understanding herein in his or her capacity as such director or
officer, and nothing herein will limit or affect, or give rise to any liability
to any Shareholder by virtue of, any actions taken by any Shareholder solely in
his or her capacity as an officer or director of MFN in exercising its rights
under the Merger Agreement and the transactions contemplated thereby, and no
such actions shall be deemed a breach or default under this Agreement.
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IN WITNESS WHEREOF, each of the Shareholders and the Company
have caused this Agreement to be duly executed on the date hereof.
ABOVENET COMMUNICATIONS INC.
By: /s/ Sherman Tuan
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Name: Sherman Tuan
Title: Chief Executive Officer and Chairman
METROMEDIA COMPANY
By: /s/ Stuart Subotnick
------------------------------------------
Name: Stuart Subotnick
Title:
/s/ Stuart Subotnick
------------------------------------------
Stuart Subotnick
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SCHEDULE I
SHAREHOLDER: NUMBER OF SHARES: ADDRESS:
Metromedia Company 31,462,048 One Meadowlands Plaza
East Rutherford, NJ 07073
Attention: General Counsel
fax: (201) 531-2803
Stuart Subotnick 33,769,272(1) c/o Metromedia Company
One Meadowlands Plaza
East Rutherford, NJ 07073
Attention: General Counsel
fax: (201) 531-2803
(1) includes 31,462,048 shares of Class B Common Stock owned by Metromedia
Company, of which Mr. Subotnick is a general partner.
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