STOCKHOLDER AGREEMENT
by and between
▇▇▇▇▇▇ FIBER PROPERTIES, INC.
and
CENTURY TELEPHONE ENTERPRISES, INC.
Dated as of April 1, 1997
TABLE OF CONTENTS
Page
No.
ARTICLE I DEFINTIONS...................................................1
1.01 Definitions......................................................1
ARTICLE II BOARD OF DIRECTORS.........................................3
2.01 Composition of Board of Directors................................3
2.02 Resignations and Designations....................................4
2.04 Certificate of Incorporation and By-laws.........................5
2.05 Certain Restrictions.............................................5
ARTICLE III CENTURY'S RIGHTS TO PURCHASE ADDITIONAL
EQUITY SECURITIES; STANDSTILL........................................5
3.01 Limitation on Acquisition of Equity Securities...................5
3.02 Standstill.......................................................6
ARTICLE IV COVENANTS OF CENTURY IN CONNECTION WITH THE MERGER.........6
4.01 Ownership of Metro Shares; Approval of Merger Agreement..........6
4.02 No Solicitation..................................................7
ARTICLE V GENERAL PROVISIONS..........................................7
5.01 Termination......................................................7
5.02 Amendment and Waiver.............................................8
5.03 Notices..........................................................8
5.04 Entire Agreement.................................................9
5.05 No Third Party Beneficiary.......................................9
5.06 No Assignment; Binding Effect....................................9
5.07 Specific Performance; Legal Fees.................................9
5.08 Headings........................................................10
5.09 Invalid Provisions..............................................10
5.10 Governing Law...................................................10
5.11 Dispute Resolution Procedures...................................10
5.12 Counterparts....................................................11
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of April 1, 1997, is made
and entered into by and between ▇▇▇▇▇▇ FIBER PROPERTIES, INC., a Delaware
corporation ("BFP") and CENTURY TELEPHONE ENTERPRISES, INC., a Louisiana
corporation ("Century").
WHEREAS, BFP, ▇▇▇▇▇▇ Fiber Communications of Texas, Inc., a
Delaware corporation wholly owned by BFP ("Sub"), Century and Metro
Access Networks, Inc., a Delaware corporation majority owned by Century
("Metro"), have entered into an Agreement and Plan of Merger dated as of
April 1, 1997 (the "Merger Agreement"), which provides for the merger of
Sub with and into Metro and for Metro to become a wholly owned subsidiary
of BFP (the "Merger");
WHEREAS, at the Effective Time (as defined below) and in
accordance with the terms of the Merger Agreement, each share of common
stock of Metro (the "Metro Common Stock") held by Century immediately
prior to the Effective Time shall be converted into shares of the common
stock, par value $0.01 per share, of BFP ("BFP Common Stock"), as more
fully described in the Merger Agreement;
WHEREAS, as a condition to the willingness of BFP and Century
to consummate the Merger, BFP and Century desire to establish in this
Stockholder Agreement certain terms and conditions concerning the
acquisition and disposition of securities of BFP by Century and the
corporate governance of BFP after the Effective Time;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Stockholder 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
DEFINITIONS
1.01 Definitions. (a) Except as otherwise specifically
indicated, the following terms have the following meanings for all
purposes of this Stockholder Agreement:
"Affiliate" shall have the meaning assigned thereto in Rule
405, as presently promulgated under the Securities Act.
"beneficially owns" (or comparable variations thereof) has the
meaning set forth in Rule 13d-3 promulgated under the Exchange Act.
"Board of Directors" means the Board of Directors of BFP.
"Delaware Law" means the General Corporation Law of the State
of Delaware.
"Effective Time" means the time at which the Merger becomes
effective under Delaware Law.
"Equity Securities" means Voting Securities, Convertible
Securities and Rights to Purchase Voting Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Governmental or Regulatory Authority" means any court,
tribunal, arbitrator, authority, agency, commission, official or other
instrumentality of the United States, any foreign country or any domestic
or foreign state, county, city or other political subdivision.
"Liens" means any lien, claim, mortgage, encumbrance, pledge,
security interest, or charge of any kind.
"Person" means any individual, corporation, partnership, trust,
other entity or group (with the meaning of Section 13(d)(3) of the
Exchange Act).
"Representatives" of any entity means such entity's directors,
officers, employees, legal, investment banking and financial advisors,
accountants and any other agents and representatives of such entity.
"Restricted Group" means (i) Century, (ii) any and all Persons
directly or indirectly controlled by or under common control with Century
and (iii) any and all groups (within the meaning of Section 13(d)(3) of
the Exchange Act) of which Century or any Person directly or indirectly
controlling, controlled by or under common control with Century is a
member, other than any such group not acting for the purpose of
acquiring, holding or beneficially owning Equity Securities.
"Rule 144" means Rule 144 as presently promulgated under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Subsidiary" means any Person in which Century directly or
indirectly through Subsidiaries or otherwise, beneficially owns more than
fifty percent (50%) of either the equity interest in, or the Voting Power
of, such Person.
"Voting Power" means, with respect to any Outstanding Voting
Securities, the highest number of votes that the holders of all such
Outstanding Voting Securities would be entitled to cast for the election
of directors or on any other matter (except to the extent such voting
rights are dependent upon events of default or bankruptcy), assuming, for
purposes of this computation, the conversion or exchange into Voting
Securities of Convertible Securities (whether presently convertible or
exchangeable or not) and the exercise of Rights to Purchase Voting
Securities (whether presently exercisable or not), in either case to the
extent that any such action would increase the number of such votes.
"Voting Securities" means the BFP Common Stock and any other
securities of BFP of any kind or class having power generally to vote for
the election of directors; "Convertible Securities" means securities of
BFP which are convertible or exchangeable (whether presently convertible
or exchangeable or not) into Voting Securities; "Rights to Purchase
Voting Securities" means options and rights issued by BFP (whether
presently exercisable or not) to purchase Voting Securities or
Convertible Voting Securities; and "Outstanding Voting Securities" means
at any time the then issued and outstanding Voting Securities,
Convertible Securities (which shall be counted at the maximum number of
Voting Securities for which they can be converted or exchanged) and
Rights to Purchase Voting Securities (which shall be counted at the
maximum number of Voting Securities for which they can be exercised).
(b) In addition, the following terms are defined in the
Sections set forth below:
"Alternative Proposal" Section 4.02
"BFP" Preamble
"BFP Common Stock" Preamble
"Business Combination" Section 3.02
"Century" Preamble
"Merger" Preamble
"Merger Agreement" Preamble
"Metro" Preamble
"Metro Common Stock" Preamble
"Sub" Preamble
(c) Unless the context of this Stockholder Agreement otherwise
requires, (i) words of any gender include each other gender; (ii) words
using the singular or plural number also include the plural or singular
number, respectively; (iii) the terms "hereof," "herein," "hereby" and
derivative or similar words refer to this entire Stockholder Agreement;
and (iv) the terms "Article" or "Section" refer to the specified Article
or Section of this Stockholder Agreement. Whenever this Stockholder
Agreement refers to a number of days, such number shall refer to calendar
days unless business days are specified.
ARTICLE II
BOARD OF DIRECTORS
2.01 Composition of Board of Directors. (a) Effective at the
Effective Time, there shall be two vacancies on the Board of Directors
either by (i) an increase in the Board of Directors in accordance with
the terms of BFP's Certificate of Incorporation and By-laws, (ii)
director resignations or (iii) a combination thereof. Effective at the
Effective Time the Board of Directors shall elect two designees of
Century to fill the two vacancies on the Board of Directors created in
accordance with the preceding sentence, to serve from the Effective Time
until the end of their respective terms. The two designees of Century
shall be elected to different classes of the Board of Directors. For so
long as one or more nominees of Century is a director of BFP, one of such
nominees shall be designated as a Vice Chairman of the Board of
Directors.
(b) Thereafter, and subject to the next succeeding sentence,
the Board of Directors (or any Committee of the Board of Directors which
nominates directors) shall, in connection with each meeting of
stockholders of BFP at which the term of any Century director expires,
nominate for election as a director of BFP, in accordance with BFP's
procedures for nomination of directors as provided for in its By-laws, a
designee of Century to stand for election for a succeeding term, and
shall vote all management proxies in favor of such nominee, except for
such proxies that specifically indicate to the contrary. BFP shall
recommend its stockholders to vote in favor of such nominees, and shall
use reasonable efforts to solicit from its stockholders proxies voted in
favor of such nominees. Notwithstanding the foregoing, Century shall
cease to have the right to designate, or cause the nomination or election
of any member of the Board of Directors from and after such date as the
Restricted Group beneficially owns Outstanding Voting Securities
representing less than 5% of the Voting Power of all Outstanding Voting
Securities. The obligation of the Board of Directors hereunder to
nominate for election as directors individuals designated by Century
shall be subject to the foregoing limitation.
(c) Until such time as the Restricted Group beneficially owns
Outstanding Voting Securities representing less than 5% of the Voting
Power of all Outstanding Voting Securities, if any director designated by
Century in accordance with this Section 2.01 shall decline or be unable
to serve for any reason, or if such director resigns or is removed, the
Board of Directors shall promptly upon the request of Century nominate or
elect, as the case may be, a new qualified person recommended by Century
to replace such designee.
(d) Until such time as the Restricted Group beneficially owns
Outstanding Voting Securities representing less than 5% of the Voting
Power of all Outstanding Voting Securities, at each meeting of
stockholders of BFP, the Restricted Group shall vote the Voting
Securities held by the Restricted Group (i) for the nominees recommended
by the Board of Directors (provided such nominees include the nominees
referred to in paragraphs (a) and (b) above), and (ii) on all other
proposals of the Board of Directors, as the Restricted Group determines
in its sole discretion.
(e) Century shall promptly provide to BFP, as BFP may from
time to time reasonably request, information regarding Century's
designees for the Board of Directors, for inclusion in any form, report,
schedule, registration statement, definitive proxy statement or other
documents required to be filed by BFP with the Securities and Exchange
Commission.
(f) The members of the Board of Directors designated by
Century in accordance with this Section 2.01 shall be covered by
directors and officers insurance in the same manner as provided by BFP
for its directors and officers generally.
2.02 Resignations and Designations. As necessary to establish
or maintain the composition of the Board of Directors contemplated by
Section 2.01, the Restricted Group will cause the directors designated by
Century to resign from the Board of Directors at such time as the
Restricted Group beneficially owns less than 5% of the Voting Power of
all Outstanding Voting Securities; provided, however, if at any time the
Restricted Group's percentage of the Voting Power of all Outstanding
Voting Securities is reduced below 5% as a result of an issuance of
Outstanding Voting Securities, Century shall be afforded 90 days to
purchase a sufficient amount of additional Voting Securities necessary to
maintain its level of Board representation hereunder; and further
provided that such 90-day period shall be extended if Century is
prohibited from purchasing Voting Securities to comply with applicable
law.
2.03 Certificate of Incorporation and By-laws. BFP and Century
shall take or cause to be taken all lawful action necessary to ensure at
all times that BFP's Certificate of Incorporation and By-laws are not, at
any time, inconsistent with the provisions of this Stockholder Agreement.
2.04 Certain Restrictions. Except as required by applicable
law, rule or regulation or the Merger Agreement, BFP shall not approve or
recommend to its stockholders any transaction or approve, recommend or
take any other action (other than those expressly contemplated by this
Agreement and other than those that affect the members of the Restricted
Group or each director at the same time in the same manner) that would
(1) impose limitations on the legal rights of Century or its affiliates
as a stockholder of BFP to designate directors hereunder, including any
action that would impose restrictions based upon the size of security
holding (other than as provided for herein), the business in which a
security holder is engaged or other considerations applicable to Century
or its affiliates and not to stockholders generally, (2) otherwise
materially adversely discriminate against Century or its affiliates as
stockholders of BFP or (3) restrict the right of any Century director to
vote on any matter as such director believes appropriate in light of his
or her fiduciary duties as a director except with respect to (i) entering
into contractual or other business relationships with Century or any of
its affiliates (other than in their capacity as stockholders of BFP),
(ii) disputes with Century or any of its affiliates (including disputes
under this Agreement), (iii) interpretation or enforcement of this
Agreement or any other agreement with Century or any of its affiliates or
(iv) any other matter involving an actual or potential conflict of
interest due to such director's relationship with Century or any of its
affiliates, or otherwise.
ARTICLE III
CENTURY'S RIGHTS TO PURCHASE ADDITIONAL EQUITY SECURITIES; STANDSTILL
3.01 Limitation on Acquisition of Equity Securities. Following
the Effective Time, no member of the Restricted Group shall acquire
beneficial ownership of any Equity Securities which would cause the
Restricted Group's ownership of the Voting Power of all Outstanding
Voting Securities to exceed 15% without the prior consent of the Board of
Directors except (i) in the event BFP receives a bona fide offer from a
third party or parties (including a tender or exchange offer directed to
all holders of BFP Common Stock or Voting Securities) to acquire in
excess of 50% of the Outstanding Voting Securities, in which event the
restrictions in this Section 3.01 will be temporarily waived by BFP to
permit Century, if it should desire to do so, to make one or more offers
to increase its ownership of the Outstanding Voting Securities on the
same basis as such third party offer and (ii) in the event Century
exercises its right to sell its membership interest in Michigan Fiber
Communications L.L.C., a Delaware limited liability company, pursuant to
the provisions of Section 3.3(b) of the Limited Liability Company
Agreement to be entered into between Century and ▇▇▇▇▇▇ Fiber
Communications of Michigan, Inc. substantially in the form attached to
the Merger Agreement as Exhibit K, the restrictions in this Section 3.01
will, if necessary, be waived by BFP to permit Century to receive payment
of the purchase price therefor in full shares of BFP Common Stock.
3.02 Standstill. (a) Following the Effective Time and for so
long as one or more nominees of Century is a director of BFP, no member
of the Restricted Group will, and they will not assist or encourage
others (including by providing financing) to, directly or indirectly (i)
acquire or agree, offer, seek or propose (whether publicly or otherwise)
to acquire ownership (including but not limited to beneficial ownership)
of any substantial portion of the assets or Equity Securities of BFP
(other than in a transaction permitted under Section 3.01), whether by
means of a negotiated purchase of assets, tender or exchange offer,
merger or other business combination, recapitalization, restructuring or
other extraordinary transaction ("Business Combination"), (ii) engage in
any "solicitation" of "proxies" (as such terms are used in the proxy
rules promulgated under the Exchange Act, but disregarding clause (iv) of
Rule 14a-1(1)(2) and including any exempt solicitation pursuant to Rule
14a-2(b)(1) or (2)), or form, join or in any way participate in a "group"
(as defined under the Exchange Act) with respect to any Equity
Securities, (iii) subject to the obligation of Century's designees on the
Board of Directors to exercise their fiduciary duties as directors,
otherwise seek or propose to acquire control of the Board of Directors,
(iv) take any action that could reasonably be expected to force BFP to
make a public announcement regarding any of the types of matters referred
to in clause (i), (ii) or (iii) above, or (v) enter into any discussions,
negotiations, agreements, arrangements or understandings with any third
party with respect to any of the foregoing. No member of the Restricted
Group will request BFP or any of its Representatives to amend or waive
any provision of this paragraph (including this sentence) during such
period. If at any time during such period a member of the Restricted
Group is approached by any third party concerning its participation in
any of the types of matters referred to in clause (i), (ii) or (iii)
above, such member will promptly inform BFP of the nature of such contact
and the parties thereto.
(b) Nothing in this Section 3.02 shall (i) prohibit or
restrict Century from responding to any inquiries from any shareholders
of BFP as to Century's intention with respect to the voting of any Voting
Securities beneficially owned by Century as long as such response is
consistent with the terms of this Agreement; or (ii) restrict the right
of each Century director on the Board or any committee thereof to vote on
any matter as such individual believes appropriate in light of his or her
fiduciary duties as a director or committee member.
ARTICLE IV
COVENANTS OF CENTURY IN CONNECTION WITH THE MERGER
4.01 Ownership of Metro Shares; Approval of Merger Agreement.
(a) Century represents and warrants to BFP that it owns, beneficially and
of record, as of the date hereof, the number of shares of each class of
capital stock of Metro listed on Schedule I hereto (the "Metro Shares"),
subject to no rights of others and free and clear of all Liens.
Century's right to vote or dispose of the Metro Shares is not subject to
any voting trust, voting agreement, voting arrangement or proxy and
Century has not entered into any contract, option or other arrangement or
undertaking with respect thereto.
(b) Until the Effective Time, Century will not directly or
indirectly assign, sell, pledge, hypothecate or otherwise transfer or
dispose of any of the Metro Shares or any interest therein, exercise any
right of conversion with respect to any Metro Shares, deposit any of the
Metro 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 Metro Shares.
(c) Century will, with respect to those Metro Shares that it
owns of record on the record date for voting at any annual or special
meeting of Metro stockholders to be held for the purpose of voting on the
adoption of the Merger Agreement or for granting any written consent in
connection with the solicitation of written consents in lieu of such a
meeting (collectively, the "Metro Stockholders' Meeting"), vote such
shares (or execute written consents with respect to such shares) (i) in
favor of the adoption of the Merger Agreement and the approval of the
Merger and the other transactions contemplated by the Merger Agreement,
(ii) against any Alternative Proposal (as defined in Section 4.02) and
(iii) in favor of any other matter necessary for the consummation of the
transactions contemplated by the Merger Agreement, as any of the
foregoing is considered and voted upon at the Metro Stockholders'
Meeting.
4.02 No Solicitation. Prior to the Effective Time, Century
shall not, and it shall use its best efforts to cause its Affiliates and
Representatives not to, initiate, solicit or encourage, directly or
indirectly, any inquiries or the making or implementation of any proposal
or offer (including, without limitation, any proposal or offer to the
stockholders of Metro) with respect to a merger, consolidation or other
business combination including Metro or any of its Subsidiaries or any
acquisition or similar transaction (including, without limitation, a
tender or exchange offer) involving the purchase of all or any
significant portion of the assets of Metro and its Subsidiaries taken as
a whole or any outstanding shares of the capital stock of Metro or any
Subsidiary of Metro (any such proposal or offer being hereinafter
referred to as an "Alternative Proposal"), or engage in any negotiations
concerning, or provide any confidential information or data to, or have
any discussions or enter into any agreements, arrangements or
understandings, whether written or oral, with, any person or group
relating to an Alternative Proposal (excluding the transactions
contemplated by the Merger Agreement), or otherwise facilitate any effort
or attempt to make or implement an Alternative Proposal. Century will
promptly notify BFP if any such inquiries, proposals or offers are
received by, any such information is requested from, or any such
negotiations or discussions are sought to be initiated or continued with,
it or any of such persons.
ARTICLE V
GENERAL PROVISIONS
5.01 Termination. This Stockholder Agreement and all rights and
obligations of the parties hereunder, including, without limitation, the
provisions of Section 4.02, shall automatically terminate, and shall
cease to be of any further force and effect, upon the earlier of (i) the
termination of the Merger Agreement under Section 11.02 thereof, (ii) the
mutual written agreement of BFP and Century or (iii) at such time as a
nominee of Century is no longer a director of BFP and Century no longer
has the right hereunder to designate or cause the nomination or election
of any member of the Board of Directors. Notwithstanding the termination
of this Stockholder Agreement, nothing contained herein shall relieve any
party hereto from liability for breach of any of its representations,
warranties, covenants or agreements contained in this Stockholder
Agreement.
5.02 Amendment and Waiver. (a) This Stockholder Agreement may
be amended, supplemented or modified only by a written instrument duly
executed by or on behalf of each party hereto.
(b) Any term or condition of this Stockholder Agreement may be
waived at any time by the party that is entitled to the benefit thereof,
but no such waiver shall be effective unless set forth in a written
instrument duly executed by or on behalf of the party waiving such term
or condition. No waiver by any party of any term or condition of this
Stockholder Agreement, in any one or more instances, shall be deemed to
be or construed as a waiver of the same or any other term or condition of
this Stockholder Agreement on any future occasion. All remedies, either
under this Stockholder Agreement or by law or otherwise afforded, will be
cumulative and not alternative.
5.03 Notices. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given
only if delivered personally or by facsimile transmission or mailed
(first class postage prepaid) to the parties at the following addresses
or facsimile numbers:
If to BFP, to:
▇▇▇▇▇▇ Fiber Properties, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice Chairman and Chief Executive Officer
(Fax) (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇ LLP
One Metropolitan Square
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
(Fax) (▇▇▇) ▇▇▇-▇▇▇▇
If to Century, to:
Century Telephone Enterprises, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇. Post, III
(Fax) (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.
Place St. ▇▇▇▇▇▇▇
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
(Fax) (▇▇▇) ▇▇▇-▇▇▇▇
All such notices, requests and other communications will (i) if
delivered personally to the address as provided in this Section, be
deemed given upon delivery, (ii) if delivered by facsimile transmission
to the facsimile number as provided in this Section, be deemed given upon
receipt, and (iii) if delivered by mail in the manner described above to
the address as provided in this Section, be deemed given upon receipt (in
each case regardless of whether such notice, request or other
communication is received by any other person to whom a copy of such
notice, request or other communication is to be delivered pursuant to
this Section). Any party from time to time may change its address,
facsimile number or other information for the purpose of notices to that
party by giving notice specifying such change to the other parties
hereto.
5.04 Entire Agreement. This Stockholder Agreement supersedes
all prior discussions and agreements among the parties hereto with
respect to the subject matter hereof and contains, together with the
Merger Agreement, the sole and entire agreement among the parties hereto
with respect to the subject matter hereof.
5.05 No Third Party Beneficiary. The terms and provisions of
this Stockholder Agreement are intended solely for the benefit of each
party hereto, and it is not the intention of the parties to confer
third-party beneficiary rights upon any other Person.
5.06 No Assignment; Binding Effect. Neither this Stockholder
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 Stockholder Agreement is binding upon, inures to the
benefit of and is enforceable by the parties hereto and their respective
successors and assigns.
5.07 Specific Performance; Legal Fees. The parties acknowledge
that money damages are not an adequate remedy for violations of any
provision of this Stockholder 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 Stockholder
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 Stockholder 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.
5.08 Headings. The headings used in this Stockholder Agreement
have been inserted for convenience of reference only and do not define or
limit the provisions hereof.
5.09 Invalid Provisions. If any provision of this Stockholder
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 Stockholder Agreement will not be materially and
adversely affected thereby, (i) such provision will be fully severable,
(ii) this Stockholder 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 Stockholder Agreement
will remain in full force and effect and will not be affected by the
illegal, invalid or unenforceable provision or by its severance
therefrom.
5.10 Governing Law. This Stockholder Agreement shall be
governed by and construed in accordance with the substantive laws of the
State of Delaware as applied to contracts made and performed within the
State of Delaware without regard to its conflicts of law principles.
5.11 Dispute Resolution Procedures. If any question shall
arise in regard to the interpretation of any provision of this
Stockholder Agreement or as to the rights and obligations of either of
the parties hereunder, ▇▇▇▇ ▇. Post, III, as chief executive officer of
Century, and ▇▇▇▇▇ ▇. ▇▇▇▇▇, as chief executive officer of BFP, shall
meet with each other to negotiate and attempt to resolve such question in
good faith. Such representatives may, if they so desire, consult outside
experts for assistance in arriving at a resolution. In the event that a
resolution is not achieved within thirty (30) days after their first
meeting, either party may submit the question for final resolution by
binding arbitration in accordance with the rules and procedures of the
American Arbitration Association applicable to commercial transactions,
and judgment upon any award thereon may be entered in any court having
jurisdiction thereof. If BFP initiates the arbitration, it shall be held
in New Orleans, Louisiana, and if Century initiates the arbitration, it
shall be held in St. Louis, Missouri. In the event of any arbitration,
BFP shall select one arbitrator, Century shall select one arbitrator and
the two arbitrators so selected shall select a third arbitrator, any two
of which arbitrators together shall make the necessary determinations.
In making the foregoing selections, each party, as well as the
arbitrators selected by such parties, shall endeavor to designate an
arbitrator having substantive experience in the telecommunications
industry. All out of pocket costs and expenses of BFP and Century in
connection with such arbitration, including, without limitation, the fees
of the arbitrators and any administration fees and reasonable attorney's
fees and expenses, shall be borne by BFP and Century in such proportions
as the arbitrators shall decide that such expenses should, in equity, be
apportioned.
5.12 Counterparts. This Stockholder 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.
IN WITNESS WHEREOF, each party hereto has caused this
Stockholder Agreement to be signed by its officer thereunto duly
authorized as of the date first above written.
▇▇▇▇▇▇ FIBER PROPERTIES, INC.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
By:_________________________________________
Vice Chairman and Chief Executive Officer
CENTURY TELEPHONE ENTERPRISES, INC.
/s/ ▇▇▇▇ ▇. Post, III
By:_________________________________________
President and Chief Executive Officer
SCHEDULE I
Metro Shares Owned by Century
Class Number
Common Stock...................................800