Affiliate Agreement
May 5, 1997
▇▇▇▇▇▇ Fiber Properties, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned has been advised that as of the date hereof it
may be deemed to be an "affiliate" of Metro Access Networks, Inc., a
Delaware corporation ("Metro"), as that term is defined for purposes of
paragraphs (c) and (d) of Rule 145 of the rules and regulations (the
"Rules and Regulations") of the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "1933
Act").
Pursuant to the terms of the Agreement and Plan of Merger dated
as of April 1, 1997 (the "Merger Agreement"), among ▇▇▇▇▇▇ Fiber
Properties, Inc., a Delaware corporation ("BFP"), ▇▇▇▇▇▇ Fiber
Communications of Texas, Inc., a Delaware corporation wholly owned by BFP
("Sub"), Century Telephone Enterprises, Inc., a Louisiana corporation,
and Metro, providing for the merger of Sub with and into Metro (the
"Merger"), and as a result of the Merger, the undersigned will receive
shares of BFP's common stock, par value $0.01 per share ("BFP Common
Stock"), in exchange for the shares of common stock of Metro owned by the
undersigned at the Effective Time (as defined in the Merger Agreement) of
the Merger.
The undersigned represents and warrants to BFP, and BFP agrees,
as follows:
A. The undersigned shall not make any sale, transfer or other
disposition of the BFP Common Stock issued to the undersigned in
connection with the Merger in violation of the 1933 Act or the Rules and
Regulations.
B. The undersigned has carefully read this letter and the
Merger Agreement and discussed its requirements and other applicable
limitations upon the ability of the undersigned to sell, transfer or
otherwise dispose of BFP Common Stock with its counsel.
C. The undersigned has been advised that the issuance of BFP
Common Stock to it pursuant to the Merger has been registered with the
Commission under the 1933 Act on BFP's Registration Statement No. 333-
21223 on Form S-4 under the 1933 Act (the "Registration Statement").
However, the undersigned has also been advised that, since at the time
the Merger was submitted for a vote of the stockholders of Metro the
undersigned may have been deemed to have been an affiliate of Metro, the
BFP Common Stock issued to the undersigned in connection with the Merger
must be held by it indefinitely unless (i) a distribution of BFP Common
Stock by it has been registered under the 1933 Act (including a
distribution pursuant to the Registration Statement), (ii) a sale of BFP
Common Stock by it is made in conformity with the volume and other
limitations of Rule 145 promulgated by the Commission under the 1933 Act
or (iii) in the opinion of counsel reasonably acceptable to BFP (Jones,
Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P. is so acceptable
to BFP), some other exemption from registration is available with respect
to a proposed sale, transfer or other disposition of the BFP Common Stock
by it.
D. BFP shall timely file reports in compliance with the
Securities Exchange Act of 1934, as amended (the "1934 Act"), in order
that there will be publicly available current public information
concerning the Company within the meaning of Rule 144(c) of the
Commission under the 1933 Act, and, in connection with any proposed sale
by the undersigned pursuant to Rule 145 under the 1933 Act, shall furnish
to the undersigned upon request a written statement as to whether BFP has
complied with such reporting requirements during the preceding 12 months
(or such shorter period that BFP may have been required to file such
reports). BFP hereby represents that, as of the date hereof, it is in
compliance with such reporting requirements.
E. The undersigned agrees to furnish BFP in writing such
information as BFP may reasonably request and which is customary in
connection with any resales of BFP Common Stock pursuant to the
Registration Statement. In the event a material(1) change or development
should occur that, in the reasonable opinion of counsel for BFP, would
require an amendment or supplement to the Registration Statement, the
undersigned shall, upon receipt of written notice from BFP, suspend all
such resales pursuant to the Registration Statement until the earlier of
(i) two business days after BFP files with the Commission its next report
on Form 8-K or its next quarterly or annual report under the 1934 Act on
Form 10-Q or 10-K, or (ii) BFP has advised the undersigned that the
Registration Statement may again be used for such resales. In such
event, at the request of the undersigned, BFP shall promptly prepare and
furnish to the undersigned a reasonable number of copies of a supplement
to or an amendment to the prospectus then included as part of the
Registration Statement which appropriately reflects such change or
development for delivery to purchasers of the BFP Common Stock from the
undersigned. BFP shall keep the Registration Statement effective for use
in connection with resales for a period of up to five years following the
Effective Time; provided, however, that if during such five-year period
the undersigned's ownership of BFP Common Stock falls below 5% of the
outstanding shares of BFP Common Stock (and, as a result thereof, the
undersigned is no longer permitted to designate two BFP directors under
the Stockholder Agreement dated as of April 1, 1997 by and between BFP
and the undersigned), the undersigned understands that the Registration
Statement will not be kept effective for resales by the undersigned
unless and to the extent the volume limitations of Rule 145 continue to
be applicable to sales by the undersigned of shares of BFP Common Stock
acquired in the Merger. As soon as reasonably practicable following the
earliest date permitted under Regulation C promulgated under the 1933
Act, BFP shall amend the Registration Statement to enable BFP to disclose
information with respect to its business in accordance with Item 10 of
Form S-4 under the 1933 Act. In the event of the issuance of any stop
order suspending the effectiveness of the Registration Statement, or of
any order suspending or preventing the use of any related prospectus or
suspending the qualification of any BFP Common Stock registered under
such Registration Statement for sale in any jurisdiction, BFP agrees to
use its reasonable best efforts promptly to obtain the withdrawal of such
order.
________________________________
(1) Information is material when "there is a substantial likelihood that
a reasonable shareholder would consider it important" (TSC Industries,
Inc. ▇. ▇▇▇▇▇▇▇▇, ▇▇▇ ▇.▇. ▇▇▇, 449, 1976) or if there is "a
substantial likelihood that the disclosure of the omitted fact would
have been viewed by the reasonable investor as having significantly
altered the `total mix' of information made available" (Basic, Inc.
▇. ▇▇▇▇▇▇▇, ▇▇▇ ▇.▇. ▇▇▇, 231-232, 1988).
F. In connection with any underwritten offering by the
undersigned pursuant to the Registration Statement, BFP agrees to amend
or supplement the Registration Statement at the reasonable request of the
undersigned or its underwriters and to otherwise cooperate with the
undersigned and its underwriters in connection with any such offering;
provided, however, that the underwriters of any such offering shall be
reasonably acceptable to BFP. BFP further agrees to use its reasonable
best efforts to register or qualify resales of BFP Common Stock by the
undersigned under the securities or "blue sky" laws of such jurisdictions
as the undersigned reasonably requests and is legally required to do so
and to take any and all other acts that may be necessary to enable the
undersigned to consummate such resales in such jurisdictions; provided,
however, that BFP will not be required to qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this sentence, file a general consent to service of
process or subject itself to taxation in any jurisdiction where BFP would
not otherwise be subject to taxation.
G. In the event of an underwritten public offering of any BFP
equity securities by BFP or any of its other stockholders, in which the
undersigned is offered the opportunity to participate and at a time when
the undersigned owns more than 1% of the outstanding shares of BFP Common
Stock, the undersigned will not, without the prior written consent of BFP
and the managing underwriters of such offering, effect any public sale or
distribution of its BFP Common Stock during the period commencing on the
seventh day prior to, and ending on the ninetieth day (or such longer
period up to 180 days as shall be required by the managing underwriters)
following, the effective date of such underwritten public offering,
except in connection therewith.
H. The undersigned also understands that stop transfer
instructions will be given to BFP's transfer agents with respect to the
BFP Common Stock acquired by the undersigned in connection with the
Merger and that there will be placed on the certificates for such BFP
Common Stock, or any substitutions therefor, a legend stating in
substance:
"The shares represented by this certificate were issued in
a transaction to which Rule 145 promulgated under the 1933 Act
applies. The shares represented by this certificate may only
be transferred in accordance with the terms of an agreement
dated May 5, 1997 (the "Agreement"), between the registered
holder hereof and ▇▇▇▇▇▇ Fiber Properties, Inc. (the
"Corporation"), a copy of which Agreement is on file at the
principal offices of the Corporation. The Agreement permits a
sale of the shares represented by this certificate (i) pursuant
to the Corporation's Registration Statement on Form S-4 (No.
333-21223) and (ii) in conformity with the volume and other
limitations of Rule 145(d).
I. The undersigned also understands that unless the transfer
by it of its BFP Common Stock is pursuant to an effective registration
statement under the 1933 Act (including the Registration Statement) or is
a sale made in conformity with the provisions of Rule 145, BFP reserves
the right to put the following legend on the certificates issued to any
transferee:
"The shares represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and
were acquired from a person who received such shares in a
transaction to which Rule 145 promulgated under such Act
applies. The shares have been acquired by the holder not with
a view to, or for resale in connection with, any distribution
thereof within the meaning of such Act and may not be sold,
pledged or otherwise transferred except in accordance with an
exemption from the registration requirements of such Act."
It is understood and agreed that the legends set forth in
paragraphs H and I above shall be removed by delivery of substitute
certificates without such legend in the event of a distribution by the
undersigned pursuant to an effective registration statement under the
1933 Act (including the Registration Statement) or as otherwise permitted
by Rule 145 or if (i) the undersigned shall have delivered to BFP a copy
of a letter from the staff of the Commission, or an opinion of counsel
reasonably acceptable to BFP, to the effect that such legend is not
required for purposes of the 1933 Act, (ii) a period of at least one year
shall have elapsed from the date the undersigned acquired the BFP Common
Stock received in the Merger and the provisions of Rule 145(d)(2) are
then applicable to the undersigned, (iii) a period of at least two years
shall have elapsed from the date the undersigned acquired the BFP Common
Stock received in the Merger and the provisions of Rule 145(d)(3) are
then applicable to the undersigned, or (iv) Rule 145 shall have been
amended such that the volume limitations thereof no longer apply to sales
by the undersigned of shares of BFP Common Stock acquired in the Merger.
Execution of this letter agreement should not be considered an
admission on the part of the undersigned that it is an "affiliate" of the
Company as described in the first paragraph of this letter, or as defined
under Rule 144 of the 1933 Act, nor as a waiver of any rights the
undersigned may have to object to any claim that it is such an affiliate
on or after the date of this letter.
This letter agreement shall be binding upon, and shall inure
the benefit of, the undersigned and BFP and their respective successors.
Very truly yours,
Century Telephone Enterprises, Inc.
/s/ ▇▇▇▇ ▇. Post, III
By:__________________________________
▇▇▇▇ ▇. Post, III
Vice Chairman, President and Chief
Executive
Officer
Accepted and Agreed as of
this 5th day of May, 1997, by:
▇▇▇▇▇▇ Fiber Properties, Inc.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:_______________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice Chairman and Chief
Executive Officer
