1
EXHIBIT 10.7
================================================================================
STOCKHOLDERS AGREEMENT
among
OPTEL, INC.
NOMURA HOLDING AMERICA INC.
MCI TELECOMMUNICATIONS CORPORATION
VPC CORPORATION
LE GROUPE VIDEOTRON LTEE
and
INTERACTIVE CABLE SYSTEMS, INC.
Dated as of April 9, 1998
================================================================================
2
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement"), dated as of
April 9, 1998, among Optel, Inc., a Delaware corporation (the "Corporation"),
VPC Corporation, a Delaware corporation ("VPC"), Le Groupe Videotron Ltee, a
Quebec corporation ("Videotron"), Nomura Holding America, Inc., a Delaware
corporation ("Nomura"), MCI Telecommunications Corporation, a Delaware
corporation ("MCI") and Interactive Cable Systems, Inc., a California
corporation ("ICS" and together with Nomura, MCI and any of their respective
transferees other than pursuant to a Transfer under Section 2.2(a)(i) and
2.2(a)(ii), the "Stockholders").
WHEREAS, ICS is the holder of the aggregate of $60 million
face amount of the issued and outstanding shares of Series B preferred stock,
par value $.01 per share ("Series B Preferred Stock"), of the Corporation and
165,746 of the issued and outstanding shares of Class A common stock, par value
$.01 per share ("Class A Common Stock"), of the Corporation;
WHEREAS, pursuant to the Purchase Agreement, dated as of March
4, 1998, between the Corporation and ICS, as amended through the date hereof
(the "Purchase Agreement"), ICS was issued the above mentioned shares of Series
B Preferred Stock and Class A Common Stock as partial payment for the Purchased
Assets (as such term is defined in the Purchase Agreement), subject to the
terms and conditions of the Purchase Agreement; and
WHEREAS, the ICS and the Corporation believe it to be in the
best interests of the Stockholders and the Corporation that they enter into
this Agreement providing for certain rights and restrictions with respect to
the shares of Series B Preferred Stock and Class A Common Stock owned by the
Stockholders or their transferees.
NOW, THEREFORE, in consideration of the mutual covenants and
obligations set forth in this Agreement, the parties hereto agree as follows:
1. Definitions.
"Affiliate" means, as applied to any Person, any other Person
that directly, or indirectly through one or more intermediaries, controls or is
controlled by, or is under common control with such Person.
"Class A Common Stock" has the meaning set forth in the
preamble to this Agreement.
"Class B Common Stock" means the Class B Common Stock, par
value $.01 per share, of the Corporation.
3
"Class C Common Stock" means the Class C Common Stock, par
value $.01 per share, of the Corporation.
"Common Stock" means Class A Common Stock, Class B Common
Stock, Class C Common Stock or other common stock of the Corporation.
"Competitor" means any Person that is a franchise cable or
private cable operator or an incumbent local exchange carrier, or any Affiliate
of such Person.
"Escrow Agents" means the Consent Escrow Agent and the
Crossings Escrow Agent (as such terms are defined in the Purchase Agreement).
"Escrow Agreements" means the Consent Escrow Agreement and the
Crossings Escrow Agreement (as such terms are defined in the Purchase
Agreement).
"ICS Amended and Restated Note Purchase Agreement" means the
Amended and Restated Note Purchase Agreement, dated as of October 15, 1997,
among ICS, Nomura, MCI and Nomura International Trust Company, as collateral
agent, as amended, supplemented or otherwise modified from time to time in
accordance with its terms.
"ICS Secured Lenders" means the holders from time to time of
(i) the notes issued pursuant to ICS Amended and Restated Note Purchase
Agreement and (ii) the Additional Notes (as such term is defined in the ICS
Amended and Restated Note Purchase Agreement).
"IPO Date" means the first date on which the Corporation
receives the net proceeds of a Public Offering.
"Person" means any individual, partnership, company,
corporation, limited liability company, trust, estate, unincorporated
association, syndicate, joint venture or unincorporated organization, any
government or any department, agency or political subdivision thereof, or any
other entity.
"Public Offering" means any sale of shares of capital stock of
the Corporation (including Common Stock and Preferred Stock) to the public
pursuant to an offering registered under the Securities Act.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2
4
"Series B Preferred Stock" has the meaning set forth in the
preamble to this Agreement.
"Stockholder Shares" means (i) any Series B Preferred Stock
held at any time, directly or indirectly, by a Stockholder, (ii) any Class A
Common Stock held at any time, directly or indirectly, by a Stockholder,
including without limitation, any Class A Common Stock issued or issuable upon
conversion of the Series B Preferred Stock, and (iii) any equity securities
issued or issuable directly or indirectly with respect to the securities
referred to in clause (i) or (ii) above by way of any stock split, reverse
stock split, stock dividend or other subdivision or combination.
"Transfer" means any direct or indirect, sale, assignment,
mortgage, transfer, pledge, hypothecation or other disposal of or encumbrance
of any Stockholder Shares including, without limitation, transfers to other
Stockholders, dispositions by gift, distributions in liquidation by a
corporation or partnership, transfers through the granting of participation
rights or otherwise and transfers or other dispositions by operation of law.
"Videotron" has the meaning set forth in the preamble to this
Agreement.
"VPC" has the meaning set forth in the preamble to this
Agreement.
"VPC Shares" means any Common Stock held, directly or
indirectly, by VPC, including without limitation any Common Stock issued or
issuable upon conversion of the Corporation's 15% convertible notes held by
VPC, whether or not the notes held by VPC are at the time convertible in
accordance with their terms, and (ii) any equity securities issued or issuable
directly or indirectly with respect to the securities referred to in clause (i)
above by way of any stock split, reverse stock split, stock dividend or other
subdivision or combination.
2. Restrictions on Transfer of Stockholder Shares.
2.1 Transfer in Violation of this Agreement. Any
Transfer or attempted Transfer of any Stockholder Shares in violation of any
provision of this Agreement shall be null and void, and the Corporation shall
not record such Transfer on its books or treat any purported transferee of such
Stockholder Shares as the owner of such shares for any purpose.
2.2 Transfer of Stockholder Shares. (a) Subject to
Sections 2, 3, 4, and 5, the Stockholder Shares are transferable only pursuant
to (i) a Public Offering, (ii) transactions under Rule 144 or Rule 144A (or any
similar rule or rules then in
3
5
effect) of the SEC if such rule is available and (iii) any other legally
available means of Transfer. Notwithstanding the aforesaid, under no
circumstances may any Stockholder Transfer any Stockholder Shares to any
Competitor.
(b) No Transfer (other than pursuant to any bona fidepledge by
ICS of any of the Stockholder Shares to secure the obligations of ICS to the
ICS Secured Lenders) of any Stockholder Shares to a third party or a Permitted
Transferee (other than the Escrow Agents) shall be permitted unless such third
party or Permitted Transferee, as the case may be, shall agree in writing to be
bound by the terms and conditions of this Agreement pursuant to an instrument
of assumption reasonably satisfactory in form and substance to the Corporation
and such third party or Permitted Transferee, as the case may be, makes the
representations and warranties set forth in Exhibit B to this Agreement;
provided, however, that the provisions of this Section 2.2(b) shall not apply
to any Transfer made pursuant to Rule 144 or Rule 144A (or any similar rule or
rules then in effect) under the Securities Act.
(c) The provisions of Sections 3, 4, and 5 hereof shall not
apply to the following Transfers (each of which shall be deemed to constitute a
"Permitted Transfer," and each transferee of a Permitted Transfer shall be
referred to herein as a "Permitted Transferee"): (i) Transfers by any
Stockholder to any of the ICS Secured Lenders, (ii) Transfers by ICS to any
Escrow Agent pursuant to the Escrow Agreements, (iii) any bona fide pledge by
ICS of any Stockholder Shares to secure the obligations of ICS to the ICS
Secured Lenders and (iv) any Transfer by a Stockholder to no more than five (5)
Affiliates thereof.
(d) Notwithstanding anything to the contrary contained in this
Agreement regarding the Transfer of Stockholder Shares, shares of Series B
Preferred Stock and Class A Common Stock held in the Consent Escrow and
Crossings Escrow pursuant to the Escrow Agreements shall be held and released
to the Corporation or Stockholder in accordance with the terms of the
respective Escrow Agreements and shall not be transferable by any Stockholder
unless and until released to any Stockholder (or its designee) pursuant to the
terms of such agreements, whereupon such shares shall become Stockholder Shares
and shall become subject to all the terms and conditions of this Agreement.
(e) In connection with the proposed Transfer of any
Stockholder Shares described in clause (ii) or (iii) of Section 2.2, the holder
thereof shall deliver written notice to the Corporation describing in
reasonable detail the proposed Transfer, together with an opinion of counsel
reasonably acceptable to the Corporation to the effect that such proposed
4
6
Transfer of Stockholder Shares may be effected without registration of such
Stockholder Shares under the Securities Act.
(f) Upon the request of any holder of Stockholder Shares, the
Corporation shall remove the legend set forth in Section 7 from the
certificates for such holder's Stockholder Shares; provided, that such
Stockholder Shares are, in the opinion of counsel reasonably satisfactory to
the Corporation, eligible for sale pursuant to Rule 144(k)(or any similar rule
or rules then in effect) of the SEC.
(g) For as long as the Corporation is required by law or
pursuant to an indenture relating to securities of the Corporation, the
Corporation shall timely make all reports and filings with the Securities and
Exchange Commission so that Rule 144 ("Rule 144") of the Rules and Regulations
promulgated under the Securities Act of 1933, as amended shall be available for
the Stockholders (subject to the terms, conditions and requirements of Rule
144).
3. Optional Participation in Sale of VPC Shares ("Tag
Along Rights"). (a) Prior to the IPO date and excluding any and all Transfers
of VPC Shares by VPC to its wholly owned subsidiaries or wholly-owned
subsidiaries of Videotron or pursuant to Rule 144 of the Securities Act, (i) if
VPC elects to Transfer VPC Shares representing more than 50% of the VPC Shares
then held by it (representing in the aggregate at least 10% of the Common Stock
on a fully diluted basis assuming all holders of then outstanding warrants,
options, and convertible securities of the Corporation which are in the money
had converted such convertible securities or exercised such warrants or options
immediately prior to such Transfer) or (ii) if VPC elects to Transfer VPC
Shares which when added to the number of VPC Shares previously Transferred
would cause the aggregate number of VPC Shares Transferred to exceed 50% of the
largest number of VPC Shares held by VPC between August 15, 1997 and the date
of such Transfer or Transfers, as appropriately adjusted for any stock split,
reverse stock split, stock dividend or other division or combination of Common
Stock since August 15, 1997, the Stockholders shall be permitted, subject to
the provisions of this Section 3, to participate in such Transfer at the same
price and on the same terms and conditions applicable to VPC.
(b) VPC shall deliver to each Stockholder a written notice (a
"Transfer Notice") of a proposed Transfer subject to this Section 3 no later
than 15 days prior to the proposed closing thereof. The Transfer Notice shall
make reference to the Stockholder's rights hereunder and shall describe in
reasonable detail: (i) the number of VPC Shares proposed to be Transferred by
VPC (without regard to any reduction in the number of VPC Shares to be
Transferred as a result of the rights of any
5
7
stockholder of the Corporation to participate in such sale) (the "VPC Sales
Shares"), (ii) the person or group of persons to whom such VPC Shares are
proposed to be Transferred, (iii) the material terms and conditions of the
Transfer, including the amount and form of consideration to be paid therefor,
(iv) the proposed date, time and location of the closing of the Transfer, (v)
the number of Stockholder Shares the Stockholder may sell in such a Transfer,
and (vi) the date by and manner in which the Stockholder must respond in order
to exercise its right to participate pursuant to and in accordance with this
Section 3.
(c) Each Stockholder may exercise its right to participate in
a Transfer pursuant to this Section 3 by delivering to VPC a written notice (a
"Participation Notice") stating its election to do so and specifying the number
of Stockholder Shares held by it to be sold no later than 10 days after the
Transfer Notice was given. Failure to provide a Participation Notice within
such 10-day period shall be deemed to constitute an election by such
Stockholder not to exercise its rights pursuant to this Section 3. VPC shall
have 180 days following the expiration of such 10-day period in which to
Transfer not more than the number of VPC Shares described in the Transfer
Notice on terms not more favorable to VPC than those set forth in the Transfer
Notice. If, at the end of the 180-day period following the expiration of such
10-day period, VPC has not consummated the Transfer of the VPC Shares, VPC may
not Transfer the VPC Shares pursuant to this Section 3 without again fully
complying with the provisions of this Section 3.
(d) Each Stockholder shall have the right to Transfer in a
Transfer subject to this Section 3 up to the same proportion of the Stockholder
Shares then owned by it as the number of such Stockholder Shares (assuming
conversion into Common Stock of any Stockholder Shares that are shares of
Series B Preferred Stock at the conversion price then in effect, or if prior to
the IPO date, assuming a conversion price of $98 per share of Common Stock)
bears to the total number of such Stockholders Shares and VPC Shares.
4. First Offer Rights. At least 30 days prior to any
Transfer of Stockholder Shares by any Stockholder, the Stockholder proposing to
make such Transfer (the "Offering Stockholder") shall deliver a written notice
(the "Transfer Notice") to the Corporation and VPC, specifying in reasonable
detail the number of Stockholder Shares to be transferred, the proposed
purchase price (which shall be payable solely in cash)(the "Proposed Purchase
Price") and the other terms and conditions of the Transfer. The Corporation
may elect to purchase all (but not less than all) of the Stockholder Shares to
be Transferred, upon the same terms and conditions as those set forth in the
Transfer Notice, by delivering a written notice of
6
8
such election to the Offering Stockholder within 20 days after the Transfer
Notice has been received by the Corporation. If the Corporation has not
elected within such 20 day period (the "Offer Period") to purchase all of the
Stockholder Shares to be Transferred, then VPC may elect to purchase all (but
not less than all) of the Stockholder Shares on the same terms and conditions
as the Corporation. If VPC has not elected within 10 days after the Offer
Period (the "Extended Offer Period") to purchase all of the Stockholder Shares
to be Transferred, the Offering Stockholder may, during the 180-day period
immediately following the expiration of the Extended Offer Period (the "Third
Party Offer Period"), Transfer the Stockholder Shares specified in the Transfer
Notice at an aggregate price which is not less than the Proposed Purchase Price
and on other terms which are not, in the aggregate, more favorable to the
transferee(s) than specified in the Transfer Notice. Stockholder Shares not
Transferred within the Third Party Offer Periods permitted by the foregoing
provisions may not be Transferred thereafter except upon further compliance
with the provisions of this Section 4 as if a Transfer Notice had never been
given with respect thereto.
5. Drag Along Rights. If VPC elects to sell VPC Shares
representing (or Videotron elects to sell shares of the capital stock of VPC
indirectly representing) 50% or more of the voting power of the outstanding
capital stock of the Corporation or 50% or more of the VPC Shares, then VPC (or
Videotron, as the case may be) shall have the right to require each Stockholder
to join in such sale by selling all (but not less than all) of its Stockholder
Shares on the same terms and at the same price as the sale to be effected by
VPC (or Videotron, as the case may be). Such right of VPC (or Videotron, as
the case may be) may be exercised by the delivery by VPC (or Videotron, as the
case may be) to Stockholder, at least fifteen (15) days prior to the
consummation of the proposed sale, of notice of the proposed sale setting forth
a description of the terms of such sale in reasonable detail and stating that
VPC (or Videotron, as the case may be) requires the Stockholder Shares be
included in such sale. In connection with such a sale, each Stockholder will,
if requested by the purchasers, execute, deliver and perform agreements with
the purchasers relating to such sale containing terms and conditions that are
the same in all material respects as those contained in the comparable
agreements to be executed, delivered and performed by VPC (or Videotron, as the
case may be).
6. Inapplicability After IPO. The provisions of Sections
2 (other than 2.2(g)) and 4 of this Agreement shall terminate and be of no
effect following the IPO Date.
7. Stock Certificate Legend. Each certificate
representing Stockholder Shares now or hereafter registered in
7
9
the name of any Stockholder shall be endorsed with a legend substantially as
follows:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND ARE SUBJECT TO THE
RESTRICTIONS CONTAINED IN A STOCKHOLDER AGREEMENT DATED AS OF
April 9, 1998, AMONG THE CORPORATION, VPC, VIDEOTRON AND ICS
(THE "STOCKHOLDER AGREEMENT"), A COPY OF WHICH IS ON FILE IN
THE OFFICES OF THE CORPORATION AND WILL BE FURNISHED TO THE
HOLDER OF THIS CERTIFICATE UPON WRITTEN REQUEST AND WITHOUT
CHARGE. OWNERSHIP AND TRANSFER OF SUCH SHARES ARE SUBJECT TO
THE TERMS OF THE STOCKHOLDER AGREEMENT. THE HOLDER OF THIS
CERTIFICATE, BY ACCEPTANCE HEREOF, AGREES TO BE BOUND BY ALL
THE TERMS OF THE STOCKHOLDER AGREEMENT, AS THE SAME IS IN
EFFECT FROM TIME TO TIME. NO SALE, ASSIGNMENT, ENCUMBRANCE,
PLEDGE, TRANSFER OR OTHER HYPOTHECATION OR DISPOSITION OF SUCH
SHARES MAY BE MADE EXCEPT IN COMPLIANCE WITH THE STOCKHOLDER
AGREEMENT."
All Stockholders shall be bound by the requirements of such
legends to the extent that such legends are applicable.
8. Ownership of Shareholder Stock. Each Stockholder on
the date hereof represents and warrants that it owns the number of Stockholder
Shares set forth opposite its name on the Stockholder Schedule attached hereto
as Exhibit A.
9. Authorization. Each of the Stockholders and the
Corporation represents and warrants that it has the full right, power and
authority to execute this Agreement and to perform fully its obligations
hereunder, that it has duly executed and delivered this Agreement, and that
this Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms.
10. Conflicts. Each of the Stockholders and the
Corporation represents and warrants that this Agreement does not conflict with
or result in a breach of any term or provision of, or constitute a default
under, any agreement or instrument to which it is a party or by which it is
bound, or any law, rule or regulation or order, judgment or decree of any court
or governmental authority applicable to it, or its certificate of incorporation
or by- laws or any other constituent documents.
8
10
11. Consents. Each of the Stockholders and the
Corporation represents and warrants that except as expressly contemplated by
this Agreement, no consent, approval or authorization of, or registration,
declaration or filing with, any governmental authority is required to be
obtained or made by it in connection with the execution, delivery or
performance of this Agreement.
12. Amendments, Modifications and Waivers. No amendment,
modification or discharge of this Agreement, and no waiver hereunder, shall be
valid or binding unless set forth in writing and duly executed by the party
against whom enforcement of the amendment, modification, discharge or waiver is
sought. Any such waiver shall constitute a waiver only with respect to the
specific matter described in such writing and shall in no way impair the rights
of the party granting such waiver in any other respect or at any other time.
Neither the waiver by any of the parties hereto of a breach of or a default
under any of the provisions of this Agreement, nor the failure by any of the
parties, on one or more occasions, to enforce any of the provisions of this
Agreement or to exercise any right or privilege hereunder, shall be construed
as a waiver of any other breach or default of a similar nature, or as a waiver
of any of such provisions, rights or privileges hereunder.
13. Assignment. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and assigns.
14. Termination. Any party to, or person who is subject
to, this Agreement who ceases to own any Stockholder Shares or any interest
therein in accordance with the terms of this Agreement shall cease to be a
party to, or person who is subject to, this Agreement and thereafter shall have
no rights or obligations hereunder; provided that any Stockholder who transfers
Stockholder Shares in breach of this Agreement shall not be relieved of
liability for any such breach.
15. Recapitalization, Exchanges, etc., Affecting the
Stockholder Shares. The provisions of this Agreement shall apply to the full
extent set forth herein with respect to (a) the Stockholder Shares and (b) any
and all shares of capital stock of the Corporation or any successor or assign
of the Corporation (whether by merger, consolidation, sale of assets or
otherwise) which may be issued in respect of, in exchange for, or in
substitution for the Stockholder Shares, by reason of any stock dividend,
split, reverse split, combination, recapitalization, reclassification, merger,
consolidation or otherwise. Except as otherwise provided herein, this
Agreement is not intended to
9
11
confer upon any person, except for the parties hereto, any rights or remedies
hereunder.
16. Further Assurances. Each party hereto or person
subject hereto shall do and perform or cause to be done and performed all such
further acts and things and shall execute and deliver all such other
agreements, certificates, instruments and documents as any other party hereto
or person subject hereto may reasonably request in order to carry out the
intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
17. Governing Law. This Agreement and the rights and
obligations of the parties hereunder and the persons subject hereto shall be
governed by, and construed and interpreted in accordance with, the law of the
State of New York, without giving effect to the choice of law principles
thereof.
18. Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement,
including that provision, in any other jurisdiction.
19. Notices. All notices, requests, demands and other
communications made in connection with this Agreement shall be in writing and
shall be (a) mailed by first-class, registered or certified mail, return
receipt requested, postage prepaid, (b) transmitted by hand delivery or
overnight courier, or (c) transmitted by telecopy and, in each case, addressed
as follows:
(i) if to the Corporation:
1111 West Mockingbird Lane
Ste. 1000
Dallas, Texas 75247
Telecopy: (214) 634-3889
Attention: General Counsel
(ii) if to VPC or Videotron:
300 Avenue Viger Est
Montreal (Quebec)
H2X 3W4
Telecopy: 514) 985-8515
Attention: Senior Vice President, Legal
Affairs and Secretary
(iii) if to ICS:
10
12
1901 N. Glenville Drive
Suite 800
Richardson, Texas 75081
Attn: Kevin Schottlaender, President and
Carl Koenig
Telecopier: (972) 669-6016 and
(972) 669-6113
(v) if to Nomura:
2 World Financial Center
Building B
New York, New York 10281-1198
Attn: Dennis Dolan
(vi) if to MCI:
1801 Pennsylvania Avenue, N.W.
Washington, D.C. 20006
Attn: William Armistead
or, in each case, at such other address as may be specified in writing to the
other parties hereto. Any notice so addressed shall be deemed to be given (x)
three business days after being mailed by first-class, registered or certified
mail, return receipt requested, postage prepaid, (y) one business day after
being transmitted by telecopy, and (z) upon delivery, if transmitted by hand
delivery or overnight courier.
20. Headings; Execution in Counterparts. The headings
and captions contained herein are for convenience and shall not control or
affect the meaning or construction of any provision hereof. This Agreement may
be executed in any number of counterparts, each of which shall be deemed to be
an original and all of which together shall constitute one and the same
instrument.
21. Entire Agreement. This Agreement and the
Registration Rights Agreement dated as of April 9, 1998 between the
Corporation, ICS, Nomura and MCI embody the entire agreement and understanding
of the parties hereto in respect of the subject matter contained herein. This
Agreement supersedes all prior agreements and understandings between the
parties with respect to such subject matter.
22. Injunctive Relief. The Stockholder Shares cannot
readily be purchased or sold in the open market, and for that reason, among
others, the Corporation and the Stockholders will be irreparably damaged in the
event this Agreement is not specifically enforced. Each of the parties
therefore agrees that in the event of a breach of any provision of this
Agreement the
11
13
aggrieved party may elect to institute and prosecute proceedings in any court
of competent jurisdiction to enforce specific performance or to enjoin the
continuing breach of this Agreement. Such remedies shall, however, be
cumulative and not exclusive, and shall be in addition to any other remedy
which the Corporation or the Stockholders may have. Each Stockholder hereby
irrevocably submits to the non-exclusive jurisdiction of the state and federal
courts in New York for the purposes of any suit, action or other proceeding
arising out of or based upon this Agreement or the subject matter hereof. Each
Stockholder hereby consents to service of process by mail made in accordance
with Section 19.
23. Copies of Agreement. A copy of this Agreement shall
be filed with the Secretary of the Corporation and kept with the records of the
Corporation and will be furnished to a Stockholder upon written request and
without charge.
[Intentionally Left Blank]
12
14
IN WITNESS WHEREOF, this Agreement has been signed by each of
the parties hereto on the date opposite such party's signature hereto, and
shall be effective as of the date first above written.
Dated: OPTEL INC.
----------------------
By:
----------------------------------
Name: Michael E. Katzenstein
Title: Vice President Legal
Affairs, General Counsel and
Secretary
By:
----------------------------------
Name: Stephen Dube
Title: Vice President Operations
Dated: VPC CORPORATION
-----------------------
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
Dated: LE GROUPE VIDEOTRON LTEE
-----------------------
By:
----------------------------------
Name:
Title:
By:
----------------------------------
Name:
Title:
15
Dated: NOMURA HOLDING AMERICA, INC.
-----------------------
By:
----------------------------------
Name: Dennis Dolan
Title: Managing Director
Dated: MCI TELECOMMUNICATIONS CORPORATION
-----------------------
By:
----------------------------------
Name: William Armistead
Title: Vice President
16
Dated: INTERACTIVE CABLE SYSTEMS, INC.
-----------------------
By:
----------------------------------
Kevin Schottlaender
President
17
Exhibit A
Stockholder Schedule
Number of Shares Number of Shares of Class A
Name Common Stock of Series B Preferred Stock
---- ---------------- ---------------------------
Interactive Cable Systems, Inc. 164,271.54 491.1038
Nomura Holding America Inc. 351.6901
MCI Telecommunications 148.3099
Corporation
16
18
Exhibit B
Permitted Transferee represents and warrants to the
Corporation, VPC and Videotron, as of April 9, 1998, as follows:
(a) Permitted Transferee is an "Accredited Investor" as that
term is defined in Rule 501(a) promulgated under the Securities Act of 1933, as
amended (the "Act"). Permitted Transferee has experience in analyzing and
investing in companies like The Corporation and is capable of evaluating the
merits and risks of an investment in The Corporation and has the capacity to
protect its own interests. Permitted Transferee is aware of The Corporation's
business affairs and financial condition, and has acquired information about
The Corporation sufficient to reach an informed and knowledgeable decision to
acquire the Series B Preferred Stock and Class A Common Stock. Permitted
Transferee understands that investment in the Series B Preferred Stock and
Class A Common Stock is subject to a high degree of risk. Permitted Transferee
can bear the economic risk of its investment, including the full loss of its
investment, and by reason of its business or financial experience or the
business or financial experience of its professional advisors has the capacity
to evaluate the merits and risks of its investment and protect its own interest
in connection with the purchase of the Series B Preferred Stock and Class A
Common Stock.
(b) The shares of Series B Preferred Stock and Class A
Common Stock to be acquired by the Permitted Transferee pursuant to this
Agreement are being acquired for its own account and with no intention of
distributing or reselling such shares or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America, or any state, without prejudice, however, to the rights of the
Permitted Transferee at all times to sell or otherwise dispose of all or any
part of such shares under an effective registration statement under the Act, or
under an exemption from such registration available under the Act, and subject,
nevertheless, to the disposition of the Permitted Transferee's property being
at all times within its control. If the Permitted Transferee should in the
future decide to dispose of any of the shares of Series B Preferred Stock or
Class A Common Stock, the Permitted Transferee understands and agrees that it
may do so only in compliance with the Stockholder's Agreement and the Act and
applicable state securities laws, as then in effect. Without limiting the
generality of the preceding sentences of this paragraph (b), the Permitted
Transferee has not offered or sold any portion of the securities to be acquired
by it and the Permitted Transferee has no present intention of reselling or
otherwise disposing of any portion of the securities. The Permitted Transferee
represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant
17
19
participation to such person or to any third person, with respect to any of the
securities.
(c) Permitted Transferee has independently, and based on
such information as it has deemed appropriate, made its own analysis and
decision to enter into this Agreement, and specifically, has made its own
independent investigation and evaluation of the Series B Preferred Stock and
Class A Common Stock in connection with the transactions contemplated
hereunder. Permitted Transferee further acknowledges that (i) except as
expressly provided in this Agreement, The Corporation makes no representation
or warranty and assumes no responsibility with respect to the accuracy of any
statements, warranties or representations made in or in connection with the
Series B Preferred Stock or the Class A Common Stock or any other information
relating to the Series B Preferred Stock or Class A Common Stock or any other
matter including, without limitation, information received from third parties
or pursuant to Permitted Transferee's due diligence investigations of The
Corporation and without limitations Permitted Transferee acknowledges that The
Corporation has made no representation or warranty with respect to The
Corporation's internal analyses, projections, business plans, or any document
delivered or disclosed to it except as expressly set forth in this Agreement,
and (b) Permitted Transferee has had access to, or will have access on or prior
to the Closing Date to, copies of all documents and information (including the
representations and warranties of The Corporation contained in this Agreement)
as it has deemed appropriate to make its own investment analysis and decision
to enter into this Agreement.
Permitted Transferee
By:
-------------------------------
Name:
Title:
18
20
MCI Telecommunications Corporation ("MCI"), represents and
warrants to the Corporation, VPC and Videotron, as of April 9, 1998, as
follows:
(a) MCI is an "Accredited Investor" as that term is defined in
Rule 501(a) promulgated under the Securities Act of 1933, as amended (the
"Act"). MCI has experience in analyzing and investing in companies like The
Corporation and is capable of evaluating the merits and risks of an investment
in The Corporation and has the capacity to protect its own interests. MCI is
aware of The Corporation's business affairs and financial condition, and has
acquired information about The Corporation sufficient to reach an informed and
knowledgeable decision to acquire the Series B Preferred Stock and Class A
Common Stock. MCI understands that investment in the Series B Preferred Stock
and Class A Common Stock is subject to a high degree of risk. MCI can bear the
economic risk of its investment, including the full loss of its investment, and
by reason of its business or financial experience or the business or financial
experience of its professional advisors has the capacity to evaluate the merits
and risks of its investment and protect its own interest in connection with the
purchase of the Series B Preferred Stock and Class A Common Stock.
(b) The shares of Series B Preferred Stock and Class A
Common Stock to be acquired by MCI pursuant to this Agreement are being
acquired for its own account and with no intention of distributing or reselling
such shares or any part thereof in any transaction that would be in violation
of the securities laws of the United States of America, or any state, without
prejudice, however, to the rights of MCI at all times to sell or otherwise
dispose of all or any part of such shares under an effective registration
statement under the Act, or under an exemption from such registration available
under the Act, and subject, nevertheless, to the disposition of MCI's property
being at all times within its control. If MCI should in the future decide to
dispose of any of the shares of Series B Preferred Stock or Class A Common
Stock, MCI understands and agrees that it may do so only in compliance with the
Stockholder's Agreement and the Act and applicable state securities laws, as
then in effect. Without limiting the generality of the preceding sentences of
this paragraph (b), MCI has not offered or sold any portion of the securities
to be acquired by it and MCI has no present intention of reselling or otherwise
disposing of any portion of the securities. MCI represents that it does not
have any contract, undertaking, agreement or arrangement with any person to
sell, transfer or grant participation to such person or to any third person,
with respect to any of the securities.
21
(c) MCI has independently, and based on such information
as it has deemed appropriate, made its own analysis and decision to enter into
this Agreement, and specifically, has made its own independent investigation
and evaluation of the Series B Preferred Stock and Class A Common Stock in
connection with the transactions contemplated hereunder. MCI further
acknowledges that (i) except as expressly provided in this Agreement, The
Corporation makes no representation or warranty and assumes no responsibility
with respect to the accuracy of any statements, warranties or representations
made in or in connection with the Series B Preferred Stock or the Class A
Common Stock or any other information relating to the Series B Preferred Stock
or Class A Common Stock or any other matter including, without limitation,
information received from third parties or pursuant to MCI's due diligence
investigations of The Corporation and without limitations MCI acknowledges that
The Corporation has made no representation or warranty with respect to The
Corporation's internal analyses, projections, business plans, or any document
delivered or disclosed to it except as expressly set forth in this Agreement,
and (b) MCI has had access to, or will have access on or prior to the Closing
Date to, copies of all documents and information (including the representations
and warranties of The Corporation contained in this Agreement) as it has deemed
appropriate to make its own investment analysis and decision to enter into this
Agreement.
MCI TELECOMMUNICATIONS CORPORATION
By:
-------------------------------------
Name: William Armistead
Title: Vice President
22
Nomura Holding America, Inc. ("Nomura"), represents and
warrants to the Corporation, VPC and Videotron, as of April 9, 1998, as
follows:
(a) Nomura is an "Accredited Investor" as that term is defined
in Rule 501(a) promulgated under the Securities Act of 1933, as amended (the
"Act"). Nomura has experience in analyzing and investing in companies like The
Corporation and is capable of evaluating the merits and risks of an investment
in The Corporation and has the capacity to protect its own interests. Nomura
is aware of The Corporation's business affairs and financial condition, and has
acquired information about The Corporation sufficient to reach an informed and
knowledgeable decision to acquire the Series B Preferred Stock and Class A
Common Stock. Nomura understands that investment in the Series B Preferred
Stock and Class A Common Stock is subject to a high degree of risk. Nomura can
bear the economic risk of its investment, including the full loss of its
investment, and by reason of its business or financial experience or the
business or financial experience of its professional advisors has the capacity
to evaluate the merits and risks of its investment and protect its own interest
in connection with the purchase of the Series B Preferred Stock and Class A
Common Stock.
(b) The shares of Series B Preferred Stock and Class A
Common Stock to be acquired by Nomura pursuant to this Agreement are being
acquired for its own account and with no intention of distributing or reselling
such shares or any part thereof in any transaction that would be in violation
of the securities laws of the United States of America, or any state, without
prejudice, however, to the rights of Nomura at all times to sell or otherwise
dispose of all or any part of such shares under an effective registration
statement under the Act, or under an exemption from such registration available
under the Act, and subject, nevertheless, to the disposition of Nomura's
property being at all times within its control. If Nomura should in the future
decide to dispose of any of the shares of Series B Preferred Stock or Class A
Common Stock, Nomura understands and agrees that it may do so only in
compliance with the Stockholder's Agreement and the Act and applicable state
securities laws, as then in effect. Without limiting the generality of the
preceding sentences of this paragraph (b), Nomura has not offered or sold any
portion of the securities to be acquired by it and Nomura has no present
intention of reselling or otherwise disposing of any portion of the securities.
Nomura represents that it does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participation to such
person or to any third person, with respect to any of the securities.
23
(c) Nomura has independently, and based on such
information as it has deemed appropriate, made its own analysis and decision to
enter into this Agreement, and specifically, has made its own independent
investigation and evaluation of the Series B Preferred Stock and Class A Common
Stock in connection with the transactions contemplated hereunder. Nomura
further acknowledges that (i) except as expressly provided in this Agreement,
The Corporation makes no representation or warranty and assumes no
responsibility with respect to the accuracy of any statements, warranties or
representations made in or in connection with the Series B Preferred Stock or
the Class A Common Stock or any other information relating to the Series B
Preferred Stock or Class A Common Stock or any other matter including, without
limitation, information received from third parties or pursuant to Nomura's due
diligence investigations of The Corporation and without limitations Nomura
acknowledges that The Corporation has made no representation or warranty with
respect to The Corporation's internal analyses, projections, business plans, or
any document delivered or disclosed to it except as expressly set forth in this
Agreement, and (b) Nomura has had access to, or will have access on or prior to
the Closing Date to, copies of all documents and information (including the
representations and warranties of The Corporation contained in this Agreement)
as it has deemed appropriate to make its own investment analysis and decision
to enter into this Agreement.
NOMURA HOLDING AMERICA, INC.
By:
-------------------------------------
Name: Dennis Dolan
Title: Managing Director