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EXHIBIT 10.28
VPC CORPORATION
300 VIGER AVENUE EAST
MONTREAL, QUEBEC H2X 3W4
CANADA
LE GROUPE VIDEOTRON LTEE
300 VIGER AVENUE EAST
MONTREAL, QUEBEC H2X 3W4
CANADA
May 18, 1999
OpTel, Inc.
1111 West Mockingbird Lane
Dallas, Texas 75247
Ladies and Gentlemen:
This letter (this "Agreement") shall confirm the agreement of the
undersigned as follows:
1. On or before the earlier to occur of August 29, 1999 or the 90th day
following the consummation of an initial public offering by OpTel, Inc. (the
"Company"), VPC Corporation ("VPC") shall convert (i) all of its shares of Class
B Common Stock, par value $.01 per share (the "Class B Common"), of the Company
into shares of the Company's Class A Common Stock, par value $.01 per share (the
"Class A Common"), on a share for share basis and (ii) all of its shares of the
9.75% Series A Preferred Stock, par value $.01 per share (the "Series A
Preferred"), of the Company into shares of Class B Common Stock and, immediately
thereafter, VPC shall exchange VPC's shares of Class B Common for shares of the
Class A Common, on a share for share basis. Notwithstanding the foregoing, VPC
shall only be obligated to convert its shares of Class B Common and Series A
Preferred into Class A Common if the initial public offering of the Class A
Common, on substantially the same terms as are described in the Company's
Registration Statement on Form S-1 (SEC File No. 333-56231), is consummated.
2. VPC and Le Groupe Videotron Ltee ("GVL") jointly and severally shall
indemnify, defend and hold the Company harmless from and against any and all
losses, liabilities, obligations, damages, claims, deficiencies, costs and
expenses based upon, attributable to or resulting from or arising out of or
relating to any failure by VPC to satisfy its obligations under this Agreement.
3. VPC agrees that due to the unique subject matter of this Agreement,
monetary damages will be insufficient to compensate the Company in the event of
VPC's failure to satisfy
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its obligations under this Agreement. Accordingly, VPC agrees that the Company
shall be entitled (without prejudice to any other right or remedy to which it
may be entitled) to an appropriate decree of specific performance, or an
injunction restraining any violation of this Agreement or other equitable
remedies to enforce this Agreement (without establishing the likelihood of
irreparable injury or posting bond or other security), and VPC waives in any
action or proceeding brought to enforce this Agreement the defense that there
exists an adequate remedy at law.
4. EACH PARTY HERETO IRREVOCABLY CONSENTS AND AGREES THAT ANY LEGAL
ACTION, SUIT OR PROCEEDING AGAINST IT WITH RESPECT TO ITS OBLIGATIONS OR
LIABILITIES UNDER OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL
BE BROUGHT BY SUCH PARTY ONLY IN THE COURTS OF THE STATE OF DELAWARE SITTING IN
THE COUNTY OF KENT, STATE OF DELAWARE OR, IN THE EVENT (BUT ONLY IN THE EVENT)
SUCH COURT DOES NOT HAVE JURISDICTION OVER SUCH ACTION, SUIT OR PROCEEDING, IN
THE UNITED STATES DISTRICT COURT SITTING IN COUNTY OF KENT, STATE OF DELAWARE,
AND EACH PARTY HERETO HEREBY IRREVOCABLY ACCEPTS AND SUBMITS TO THE JURISDICTION
OF EACH OF THE AFORESAID COURTS IN PERSONAM, WITH RESPECT TO ANY SUCH ACTION,
SUIT OR PROCEEDING (INCLUDING, WITHOUT LIMITATION, CLAIMS FOR INTERIM RELIEF,
COUNTERCLAIMS, ACTIONS WITH MULTIPLE DEFENDANTS AND ACTIONS IN WHICH SUCH PARTY
IS IMPLIED). EACH PARTY IRREVOCABLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY
TRIAL IN ANY LEGAL ACTION, SUIT OR PROCEEDING WITH RESPECT TO, OR ARISING OUT OF
OR IN CONNECTION WITH THIS AGREEMENT.
5. GVL AND VPC CONSENT TO THE SERVICE OF PROCESS UPON EACH OF THEM IN
CONNECTION WITH ANY PROCEEDING INSTITUTED UNDER THIS AGREEMENT BY TELECOPY OR BY
CERTIFIED OR REGISTERED MAIL, POSTAGE PREPAID, WHICH SERVICE OF PROCESS WILL BE
DEEMED DELIVERED, IF SENT BY TELECOPY, UPON CONFIRMATION OF RECEIPT BY THE
ADDRESSEE, OR IF SENT BY MAIL, THREE DAYS AFTER THE DATE OF MAILING, TO THE
PARTIES AT THE FOLLOWING ADDRESSES:
TO VPC CORPORATION AT:
VPC CORPORATION
300 VIGER AVENUE EAST
MONTREAL, QUEBEC H2X 3W4
CANADA
TELECOPY: (514) 985-8515
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TO LE GROUPE VIDEOTRON LTEE AT:
LE GROUPE VIDEOTRON LTEE
300 VIGER AVENUE EAST
MONTREAL, QUEBEC H2X 3W4
CANADA
TELECOPY: (514) 985-8515
6. THIS AGREEMENT SHALL BE CONSTRUED AND GOVERNED BY THE LAWS OF THE
STATE OF DELAWARE WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS.
Sincerely yours,
VPC Corporation
By: /s/ JAYNE L. STOWELL
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Name: Jayne L. Stowell
Title: Director
Le Groupe Videotron Ltee
By: /s/ ALAIN MICHEL
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Name: Alain Michel
Title: Director
ACCEPTED AND AGREED
this 18th day of May, 1999
OpTel, Inc.
By: /s/ MICHAEL E. KATZENSTEIN
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Name: Michael E. Katzenstein
Title: Vice President, Legal
Affairs, General Counsel
and Secretary