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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 1)
Under the Securities Exchange Act of 1934
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People's Choice TV Corp.
(Name of Issuer)
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Common Stock, $0.01 par value per share
(Title of Class of Securities)
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710847 10 4
(CUSIP Number)
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Don A. Jensen
Vice President and Secretary
Sprint Corporation
P.O. Box 11315
Kansas City, Missouri 64112
(913) 624-3326
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
Copy to:
Bruce N. Hawthorne, Esq.
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Telephone: (404) 572-4600
April 23, 1999
(Date of Event which Requires Filing of this Amendment)
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If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), (f)
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or (g), check the following box: [ ]
*The remainder of this cover page shall be filled out for a reporting
person's initial filing of this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter the disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purposes of Section 18 of the Securities Exchange
Act of 1934 (the "Exchange Act") or otherwise subject to the liabilities of that
section of the Exchange Act, but shall be subject to all other provisions of the
Exchange Act (however, see the Notes).
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CUSIP No. 710847 10 4
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1. NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
Sprint Corporation
48-0457967
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ]
(b) [ ]
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3. SEC USE ONLY
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4. SOURCES OF FUNDS
WC
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d)
OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION
Kansas
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NUMBER OF 7. SOLE VOTING POWER
SHARES 2,210,688 *
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BENEFICIALLY 8. SHARED VOTING POWER
OWNED BY 5,908,751 **
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EACH 9. SOLE DISPOSITIVE POWER
REPORTING 2,210,688 *
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PERSON WITH 10. SHARED DISPOSITIVE POWER
5,908,751 **
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
8,119,439 ***
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW 11 EXCLUDES CERTAIN SHARES [ X ]
The foregoing amounts exclude any shares of Common Stock held by executive
officers and directors of the Reporting Person, if any. The Reporting
Person disclaims beneficial ownership of any shares held by such officers
and directors.
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW 11
49.997%
The foregoing reflects the Owned Preferred, the Preferred Options and the
Common Options (each defined in the Note following Line 14) and is
calculated in accordance with Rule 13d-3, which requires that the Reporting
Person assume that the total number of outstanding shares of Common Stock
are equal to the number actually outstanding plus the number that would be
issued upon conversion of the Owned Preferred and exercise and conversion of
the Preferred Options held by the Reporting Person. See the Note following
Line 14.
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14. TYPE OF REPORTING PERSON
CO
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* Reflects the voting power of the 497,405 shares (the "Owned Preferred") of
Convertible Cumulative Pay-in-Kind Preferred Stock, par value $0.01 per
share (the "Preferred Stock"), held by the Reporting Person. The Preferred
Stock possesses approximately 4.444 votes per share and is convertible at
any time, at the option of the holder, into shares of Common Stock at a
conversion price of $22.50 (or approximately 4.444 shares of Common Stock
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for each share of Preferred Stock), subject to certain adjustments.
** Reflects the irrevocable proxies (the "Proxies") granted to the Reporting
Person with respect to 1,694,823, 881,600 and 2,227,000 shares of Common
Stock, respectively, which entitle the Reporting Person to vote on all
matters presented for a vote of stockholders (other than election of
directors, as to which the grantors of such proxies retain voting power), as
described in Item 4 below. Also reflects the Preferred Options, over which
Sprint may be deemed to have beneficial ownership.
*** Reflects the Owned Preferred and, in addition, shares covered by options
held by the Reporting Person to purchase 123,699 shares and 125,000 shares
of Preferred Stock, respectively (together, the "Preferred Options"). The
shares of Preferred Stock underlying the Preferred Options are convertible
at any time at the option of the holder into an aggregate of 1,105,328
shares of Common Stock, over which the Reporting Person may be deemed to
possess beneficial ownership. The foregoing also reflects options to
purchase an aggregate of 4,803,423 shares of Common Stock (together, the
"Common Options") and proxies to vote such shares on certain matters. See
Items 4 and 5.
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This Amendment No. 1 relates to the Schedule 13D filed by Sprint
Corporation, a Kansas corporation ("Sprint" or the "Reporting Person") on April
13, 1999 (as so amended, the "Schedule 13D"). Capitalized terms used herein but
not defined shall have the same meanings as in the original Schedule 13D. The
Schedule 13D hereby is amended as follows:
Item 3. Source and Amount of Funds or Other Consideration.
The Section entitled "Common Stock" under Item 3 is hereby amended to read
in its entirety as set forth below. Item 3 remains otherwise unchanged.
Common Stock.
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If Sprint acquires all of the Oristano Option Shares, Sprint will pay
$13,558,584 for such shares, subject to adjustments described in Item 4.
If Sprint acquires all of the Bay Option Shares, Sprint will pay $7,052,800
for such shares, subject to adjustments described in Item 4.
If Sprint acquires all of the New Option Shares (as hereinafter defined),
Sprint will pay an aggregate $22,270,000 for such shares, subject to the
adjustments described in Item 4.
If Sprint acquires all of the outstanding shares of Common Stock pursuant to
the Merger, Sprint will pay $129,238,170 for such shares, subject to further
adjustments as described in Item 4, based on the number of shares of Common
Stock outstanding as of March 25, 1999 as reported in the Annual Report on Form
10-K of the Company for the fiscal year ended December 31, 1998. Sprint
disclaims beneficial ownership of such shares. The Merger Agreement provides
that shares of Common Stock that are owned by Sprint (and shares of Common Stock
and Preferred Stock that are owned by the Company as treasury stock) will be
canceled in the Merger.
Item 4. Purpose of the Transaction.
(a) The section entitled "Merger Agreement" under Item 4 is hereby amended
and supplemented to add the following sentence at the end of the second
paragraph of such section:
As a result of Sprint's having entered into the New Option Agreements (as
defined below), which provide for options to purchase an aggregate of 2,227,000
shares of Common Stock at an exercise price of $10.00 per share, the shares of
Common Stock canceled in the Merger will be converted into the right to receive
$10.00 in cash per share, without interest.
(b) In addition, the section entitled "Common Option Agreements" under Item
4 hereby is amended to read in its entirety as follows:
COMMON OPTION AGREEMENTS. Sprint has entered into: (i) a Stockholder
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and Option Agreement with Matthew Oristano, on his own behalf and as attorney-in
- -fact for certain family members and related entities on Schedule I thereto (the
"Oristano Holders"), dated April 12, 1999, covering 1,694,823 shares of common
stock (the "Oristano Agreement"); (ii) a Stockholder and Option Agreement with
Bay Harbour Management, LC ("Bay"), dated April 12, 1999, covering 881,600
shares of common stock (the "Bay Agreement"); (iii) a Stockholder and Option
Agreement with Joe Moran ("Moran"), dated April 23, 1999, covering 268,000
shares of Common Stock; (iv) a Stockholder and Option Agreement with John Gorman
("Gorman"), dated April 28, 1999, covering 362,000 shares of Common Stock; (v) a
Stockholder and Option Agreement with Loeb Partners Corporation ("Loeb"), dated
April 23, 1999, covering 133,500 shares of Common Stock; (vi) a Stockholder and
Option Agreement with Pequod Investments L.P. ("Pequod"), dated April 23, 1999,
covering 75,000 shares of Common Stock; (vii) a Stockholder and Option Agreement
with Pequod International Ltd. ("Pequod International"), dated April 23, 1999,
covering 75,000 shares of Common Stock; (viii) a Stockholder and Option
Agreement with John Glade ("Glade"), dated April 23, 1999, covering 100,000
shares of Common Stock; (ix) a Stockholder and Option Agreement with James B.
Rubin Family Accounts ("Rubin Family Accounts"), dated April 23, 1999, covering
543,500 shares of Common Stock; and (x) a Stockholder and Option Agreement with
various funds controlled by Tudor Investment Corporation ("Tudor"), dated April
26, 1999, covering 670,000 shares of Common Stock. Each of Moran, Gorman, Loeb,
Pequod, Pequod International, Glade, Rubin Family Accounts and Tudor is referred
to herein as a "New Holder." The agreements with each of Moran, Gorman, Loeb,
Pequod, Pequod International, Glade, Rubin Family Accounts and Tudor are
referred to herein as the "New Option Agreements" and, together with the
Oristano Agreement and the Bay Agreement, as the "Option Agreements". The
options granted pursuant to the Option Agreements are referred to as the "Common
Options." Sprint entered into the Option Agreements with the purpose of
facilitating its efforts to consummate the Merger.
Pursuant to the Oristano Agreement and the Bay Agreement, the Oristano
Holders and Bay granted to Sprint: (i) irrevocable options to purchase
1,694,823 and 881,600 shares of Common Stock, respectively (the "Oristano/Bay
Option Shares"), at a purchase price equal to $8.00 in cash per share (the
"Oristano/Bay Option Price"), and (ii) an irrevocable proxy to vote (or refrain
from voting) the Oristano/Bay Option Shares with respect to any issue brought
before the stockholders of the Company, other than with respect to the election
of directors of the Company.
Pursuant to the New Option Agreements, the New Holders granted to Sprint:
(i) an irrevocable option to purchase an aggregate 2,227,000 shares of Common
Stock (the "New Option Shares") at a purchase price equal to $10.00 in cash per
share (the "New Option Price"), and (ii) an irrevocable proxy to vote (or
refrain from voting) the New Option Shares with respect to any issue brought
before the stockholders of the Company, other than with respect to the election
of directors of the Company.
If, prior to the purchase of Common Stock pursuant to the Oristano Agreement
or the Bay Agreement (a "Purchase"), Sprint purchases any shares of the Common
Stock
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for an amount per share in excess of the Oristano/Bay Option Price (the
"Oristano/Bay Excess Amount"), then the amount per share to be paid by Sprint
upon exercise of any of the options covered by the Oristano Agreement or the Bay
Agreement, as applicable, shall equal the sum of the Oristano/Bay Option Price
plus the Oristano/Bay Excess Amount. If, following the date of any Purchase,
Sprint purchases any shares of Common Stock for an amount per share in excess of
the sum of the Oristano/Bay Option Price plus, if applicable, the Oristano/Bay
Excess Amount plus any other amount previously remitted pursuant to the Oristano
Agreement or the Bay Agreement, as applicable (the "Subsequent Oristano/Bay
Excess Amount"), then Sprint will remit to the Oristano Holders or Bay, as
applicable, an amount equal to the Subsequent Oristano/Bay Excess Amount for
each Oristano/Bay Option Share purchased at the closing of the Oristano
Agreement or the Bay Agreement, as applicable. For example, if Sprint purchases
any of the New Option Shares pursuant to any of the New Option Agreements, each
of which provides for an exercise price of $10.00 per share, the Oristano/Bay
Option Price automatically will increase to $10.00 per share pursuant to the
Oristano Agreement and the Bay Agreement.
If, prior to the purchase of Common Stock pursuant to the New Option
Agreements, Sprint purchases any shares of the Common Stock for an amount per
share in excess of the New Option Price or amends the Merger Agreement to
increase the per share consideration to an amount per share in excess of the New
Option Price (in either case, the "New Excess Amount"), then the amount per New
Option Share to be paid by Sprint upon exercise of any of the options covered by
the New Option Agreements shall equal the sum of the New Option Price plus the
New Excess Amount. If, following the date of such purchase pursuant to the New
Option Agreements, Sprint purchases any shares of Common Stock for an amount per
share, or amends the Merger Agreement to increase the per share consideration in
an amount per share, in excess of the sum of the New Option Price plus, if
applicable, the New Excess Amount plus any other amount previously remitted
pursuant to the applicable New Option Agreement (the "Subsequent New Excess
Amount"), then Sprint will remit to the applicable New Holder an amount equal to
the Subsequent New Excess Amount for each New Option Share purchased pursuant to
the applicable New Option Agreement.
Each of the Common Options expires 10 days after the transactions
contemplated by such Option Agreement receives approval required by the HSR Act,
if the Option has not been exercised by Sprint or its designee on or before such
date (the "Expiration Date"). If the Common Options have not been exercised by
Sprint on or before the Expiration Date, each of the Oristano Holders, Bay and
each of the New Holders shall have the right at such time, and for a period of
30 days thereafter, to require Sprint or its designee to purchase the applicable
Option Shares at the applicable Option Price, as adjusted (if necessary) in
accordance with the Option Agreements.
Sprint may in the future enter into additional option agreements or
agreements by which Sprint receives a proxy to vote shares of Common Stock of
the Company, but in no case prior to receipt of necessary approvals from the FCC
shall Sprint acquire 50% or more of the voting power of the Company's capital
stock.
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Item 5. Interest in Securities of the Issuer.
Item 5 is hereby amended to read in its entirety as follows:
The information set forth in Item 4 is hereby incorporated herein by
reference. Sprint owns the Owned Preferred, the Preferred Options and the
Common Options. Sprint has beneficial ownership of the shares of Common Stock
underlying the Owned Preferred and the Common Options, and may be deemed to have
beneficial ownership of the shares of Common Stock underlying the Preferred
Options.
The Owned Preferred and the Common Options are convertible into an aggregate
of 7,014,111 shares of Common Stock. Such number of shares of Common Stock
represents approximately 43.191% of the outstanding shares of Common Stock of
the Company on an as-converted basis.
If the shares of Common Stock underlying the Preferred Options are deemed
beneficially owned by Sprint, then Sprint beneficially owns securities
convertible and exercisable into an aggregate of 8,119,439 shares of Common
Stock, or approximately 49.997% of the outstanding Common Stock on an as-
converted basis.
Such percentages are calculated in accordance with Rule 13d-3, pursuant to
which total number of outstanding shares of Common Stock is assumed to be equal
to the number actually outstanding plus the number that would be issued upon
conversion of the Owned Preferred and the shares underlying the Preferred
Options.
(b) The number of shares of Common Stock beneficially owned: (i) with
respect to which there is sole voting power is 2,210,688, (ii) with respect to
which there is shared voting power is 5,908,751, (iii) with respect to which
there is sole dispositive power is 2,210,688, and (iv) with respect to which
there is shared dispositive power is 5,908,751.
(c) Except as set forth in Item 4, Sprint has not effected any transactions
in the Common Stock during the past 60 days.
(d)--(e) Inapplicable.
Item 7. Material to Be Filed as Exhibits.
Item 7 hereby is amended to read in its entirety as follows:
The following documents are filed herewith:
Ex. No.
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*1. Securities Purchase and Option Agreement, dated as of April 2, 1999,
between
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Sprint and Wireless Holding LLC
*2. Agreement and Plan of Merger among Sprint, MM Acquisition Corp. and the
Company, dated as of April 12, 1999
*3. Stockholder and Option Agreement between Sprint and Matthew Oristano,
dated April 12, 1999
*4. Stockholder and Option Agreement between Sprint and Bay Harbour
Management, LC, dated April 12, 1999
5. Stockholder and Option Agreement between Sprint and Joe Moran, dated
April 23, 1999
6. Stockholder and Option Agreement between Sprint and John Gorman, dated
April 28, 1999
7. Stockholder and Option Agreement between Sprint and Loeb Partners
Corporation, dated April 23, 1999
8. Stockholder and Option Agreement between Sprint and Pequod Investments
L.P., dated April 23, 1999
9. Stockholder and Option Agreement between Sprint and Pequod
International Ltd., dated April 23, 1999
10. Stockholder and Option Agreement between Sprint and John Glade, dated
April 23, 1999
11. Stockholder and Option Agreement between Sprint and James B. Rubin
Family Accounts, dated April 23, 1999
12. Stockholder and Option Agreement between Sprint and various funds
controlled by Tudor Investment Corp., dated April 26, 1999
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* Previously filed. See original Schedule 13D filed by Sprint on April 13,
1999.
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: April 28, 1999 SPRINT CORPORATION
By: /s/ Don A. Jensen
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Title: Vice President
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EXHIBIT 5
STOCKHOLDER AND OPTION AGREEMENT
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THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
23, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and Joe Moran ("Stockholder"), with respect to the shares of common
stock, par value $.01 per share (the "Company Common Stock"), of People's Choice
TV Corp., a Delaware corporation (the "Company"), owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 268,000 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
15. Certain Covenants.
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15.1 Lock-Up. Stockholder hereby covenants and agrees during the term of
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this Agreement that (a) except as consented to in writing by Sprint in its sole
discretion, Stockholder will not sell, transfer, assign, pledge, hypothecate,
tender or otherwise dispose of or limit its right to vote in any manner any of
the Option Shares, or agree to do any of the foregoing, and (b) Stockholder will
not take any action which would have the effect of preventing or disabling
Stockholder from performing its obligations under this Agreement.
15.2 Irrevocable Proxy. Stockholder has revoked or terminated any proxies,
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voting agreements or similar arrangements previously given or entered into with
respect to the Option Shares and hereby irrevocably appoints Sprint, during the
term of this Agreement, as proxy for Stockholder to vote (or refrain from
voting) in any manner as Sprint, in its sole discretion, may see fit, all of the
Option Shares for Stockholder and in Stockholder's name, place and stead, at any
annual, special or other meeting or action of the stockholders of the Company,
as applicable, or at any adjournment thereof or pursuant to any consent of the
stockholders of the Company, in lieu of a meeting or otherwise, with respect to
any issue brought before the stockholders of the Company, other than with
respect to the election of directors of the Company, for which the stockholders
of the Company are entitled to vote.
15.3 Public Announcement. Stockholder shall consult with Sprint before
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issuing any press releases or otherwise making any public statements with
respect to the transactions
<PAGE>
contemplated herein and shall not issue any such press release or make any such
public statement without the approval of Sprint, except as may be required by
law.
15.4 Stop Transfer Instruction. Promptly following the date hereof,
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Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
15.5 HSR Filing. Promptly following the date hereof, Sprint will make all
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filings with and give all notices to governmental or regulatory authorities
required of Sprint pursuant to the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR Act"), in connection with consummating the
transactions contemplated by this Agreement. Sprint will use all commercially
reasonable efforts to obtain early termination of all applicable waiting periods
under the HSR Act.
16. Grant of Option.
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2.1 Option. Upon the terms and subject to the conditions of this
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Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its designee at
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the Option Closing (as hereinafter defined) for the Option Shares shall be an
amount equal to $10.00 per Option Share (the "Option Price"); provided, however,
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if prior to the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share in excess of the Option Price or amend the merger agreement
with the Company to increase the per share consideration in an amount per share
in excess of the Option Price or (in either case, the "Excess Amount"), then the
amount per Option Share to be paid by Sprint shall equal the sum of the Option
Price plus the Excess Amount. If following the Option Closing, Sprint shall
purchase any shares of the Company Common Stock, or make a tender offer for
shares of the Company Common Stock, for an amount per share, or amend the merger
agreement with the Company to increase the per share consideration in an amount
per share, in excess of the sum of the Option Price plus, if applicable, the
Excess Amount plus any other amount previously remitted pursuant to this Section
2.2 (the "Subsequent Excess Amount"), then Sprint shall forthwith remit to
Stockholder an amount equal to the Subsequent Excess Amount for each Option
Share purchased at the Option Closing. References in this Section 2.2 to the
purchase of shares of Company Common Stock shall include such purchases pursuant
to a merger agreement with the Company.
2.3 Exercise.
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<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the Option
---------------------------
shall terminate and expire 10 days after the transactions contemplated by this
Agreement receive approval required by the HSR Act, including early termination
or lapse of the HSR Act waiting period ("HSR Approval"), if the Option has not
been exercised by Sprint or its designee on or before such date (the "Expiration
Date"). If the Option has not been exercised by Sprint on or before the
Expiration Date, Stockholder shall have the right at such time, and for a period
of 30 days thereafter, to deliver a written notice to Sprint (the "Stockholder
Notice") requiring that Sprint or its designee purchase the Option Shares at the
Option Price, as adjusted (if necessary), including payment of any Excess Amount
or Subsequent Excess Amount that would be payable if Sprint exercised the
Option, in accordance with Section 2.2 hereof (the "Put Right"). Upon the
exercise by Stockholder of the Put Right, the parties hereto shall consummate
the purchase and sale of the Option Shares in accordance with Section 2.3
hereof.
17. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is the
---------
sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character
<PAGE>
whatsoever created by or arising through Stockholder.
3.2 Authorization. Stockholder has all requisite power and authority to
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execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a sophisticated
------------------------------------
seller with respect to the Option Shares and has adequate information concerning
the business and financial condition of the Company to make an informed decision
regarding the sale of the Option Shares and has independently and without
reliance upon Sprint and based on such information as Stockholder has deemed
appropriate, made its own analysis and decision to enter into this Agreement.
Stockholder acknowledges that Sprint has not made and does not make any
representation or warranty, whether express or implied, of any kind or character
except as expressly set forth in this Agreement. Stockholder acknowledges that
the sale of the Option Shares by Stockholder to Sprint is irrevocable, and that
Stockholder shall have no recourse to the Option Shares or Sprint, except with
respect to breaches of representations, warranties, covenants and agreements
expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and confirms
-----------------------------
that (a) Sprint may possess or hereafter come into possession of certain non-
public information concerning the Option Shares and the Company which is not
known to Stockholder and which may be material to Stockholder's decision to sell
the Option Shares ("Sprint's Excluded Information"), (b) Stockholder has
requested not to receive Sprint's Excluded Information and has determined to
sell the Option Shares notwithstanding its lack of knowledge of Sprint's
Excluded Information, and (c) Sprint shall have no liability or obligation to
Stockholder in connection with, and Stockholder hereby waives and releases
Sprint from, any claims which Stockholder or its successors and assigns may have
against Sprint (whether pursuant to applicable Option Shares, laws or otherwise)
with respect to the non-disclosure of Sprint's Excluded Information; provided,
--------
however, nothing contained in this Section 3.4 shall limit Stockholder's right
- -------
to rely upon the express representations and warranties made by Sprint in this
Agreement, or Stockholder's remedies in respect of breaches of any such
representations and warranties.
18. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
19. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed
<PAGE>
that, in addition to any other remedies which may be available to Sprint upon
the breach by Stockholder of such covenants and agreements, Sprint shall have
the right to obtain injunctive relief to restrain any breach or threatened
breach of such covenants or agreements or otherwise to obtain specific
performance of any of such covenants or agreements.
20. Miscellaneous.
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20.1 Binding Effect. This Agreement shall be binding upon and inure to the
--------------
benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
20.2 Entire Agreement. This Agreement contains the entire understanding of
----------------
the parties and supersedes all prior agreements and understandings between the
parties with respect to its subject matter. This Agreement may be amended only
by a written instrument duly executed by the parties hereto.
20.3 Headings. The headings contained in this Agreement are for reference
--------
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Time is of the essence with respect to all provisions of this
Agreement.
20.4 Assignment. This Agreement may not be transferred or assigned by
----------
Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
20.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
20.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
<PAGE>
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: Joe Moran
2520 Tanglewood Trail
Austin, Texas 78703
Attention: ________________
Telecopy: (___) ___________
with a copy to: ___________________________
___________________________
___________________________
Attention: ________________
Telecopy: (___) ___________
20.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of New York, without
regard to its principles of conflicts of laws.
20.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
20.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
___________________________
Name: __________________________
Title: _________________________
/s/ Joe Moran
________________________________
Joe Moran
<PAGE>
EXHIBIT 6
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
28, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and John Gorman ("Stockholder"), with respect to the shares of
common stock, par value $.01 per share (the "Company Common Stock"), of People's
Choice TV Corp., a Delaware corporation (the "Company"), owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 362,000 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
21. Certain Covenants.
-----------------
21.1 Lock-Up. Stockholder hereby covenants and agrees during the term
-------
of this Agreement that (a) except as consented to in writing by Sprint in its
sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
21.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
21.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any press releases or otherwise making any public statements with
respect to the transactions
<PAGE>
contemplated herein and shall not issue any such press release or make any such
public statement without the approval of Sprint, except as may be required by
law.
21.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
21.5 HSR Filing. Promptly following the date hereof, Sprint will make
----------
all filings with and give all notices to governmental or regulatory authorities
required of Sprint pursuant to the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR Act"), in connection with consummating the
transactions contemplated by this Agreement. Sprint will use all commercially
reasonable efforts to obtain early termination of all applicable waiting periods
under the HSR Act.
22. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
2.3 Exercise.
--------
<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
23. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever created by or arising through
Stockholder.
<PAGE>
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
24. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
25. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sprint upon the breach by
<PAGE>
Stockholder of such covenants and agreements, Sprint shall have the right to
obtain injunctive relief to restrain any breach or threatened breach of such
covenants or agreements or otherwise to obtain specific performance of any of
such covenants or agreements.
26. Miscellaneous.
-------------
26.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
26.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
26.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
26.4 Assignment. This Agreement may not be transferred or assigned by
----------
Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
26.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
26.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
191 Peachtree Street
<PAGE>
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: John Gorman
1255 S. Capital of Texas
Highway #500
Austin, Texas 78746
Attention: ________________
Telecopy: (___) ___________
with a copy to: ___________________________
___________________________
___________________________
Attention: ________________
Telecopy: (___) ___________
26.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of New York, without
regard to its principles of conflicts of laws.
26.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
26.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
____________________________
Name:
--------------------------
Title:
-------------------------
/s/ John Gorman
________________________________
John Gorman
<PAGE>
EXHIBIT 7
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
23, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and Loeb Partners Corporation, a _______________________ corporation
("Stockholder"), with respect to the shares of common stock, par value $.01 per
share (the "Company Common Stock"), of People's Choice TV Corp., a Delaware
corporation (the "Company"), owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 133,500 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
27. Certain Covenants.
-----------------
27.1 Lock-Up. Stockholder hereby covenants and agrees during the term
-------
of this Agreement that (a) except as consented to in writing by Sprint in its
sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
27.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
27.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any
<PAGE>
press releases or otherwise making any public statements with respect to the
transactions contemplated herein and shall not issue any such press release or
make any such public statement without the approval of Sprint, except as may be
required by law.
27.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
27.5 HSR Filing. Promptly following the date hereof, Sprint will make
----------
all filings with and give all notices to governmental or regulatory authorities
required of Sprint pursuant to the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR Act"), in connection with consummating the
transactions contemplated by this Agreement. Sprint will use all commercially
reasonable efforts to obtain early termination of all applicable waiting periods
under the HSR Act.
28. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
2.3 Exercise.
--------
<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
29. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character
<PAGE>
whatsoever created by or arising through Stockholder.
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
30. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
31. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed
<PAGE>
that, in addition to any other remedies which may be available to Sprint upon
the breach by Stockholder of such covenants and agreements, Sprint shall have
the right to obtain injunctive relief to restrain any breach or threatened
breach of such covenants or agreements or otherwise to obtain specific
performance of any of such covenants or agreements.
32. Miscellaneous.
-------------
32.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
32.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
32.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
32.4 Assignment. This Agreement may not be transferred or assigned by
----------
Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
32.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
32.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
<PAGE>
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: Loeb Partners Corporation
61 Broadway
New York, NY 10006
Attention: Gideon King/R. Grubin
Telecopy: (___) ______________
with a copy to: ______________________________
______________________________
______________________________
Attention: ___________________
Telecopy: (___) ______________
32.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of New York, without
regard to its principles of conflicts of laws.
32.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
32.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
__________________________
Name: _________________________
Title: ________________________
LOEB PARTNERS CORPORATION
By: /s/ Gideon J. King
__________________________
Name: _________________________
Title: ________________________
<PAGE>
EXHIBIT 8
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
23, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and Pequod Investments L.P., a New York limited partnership
("Stockholder"), with respect to the shares of common stock, par value $.01 per
share (the "Company Common Stock"), of People's Choice TV Corp., a Delaware
corporation (the "Company"), owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 75,000 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
33. Certain Covenants.
-----------------
33.1 Lock-Up. Stockholder hereby covenants and agrees during the term
-------
of this Agreement that (a) except as consented to in writing by Sprint in its
sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
33.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
33.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any press releases or otherwise making any public statements with
respect to the transactions
<PAGE>
contemplated herein and shall not issue any such press release or make any such
public statement without the approval of Sprint, except as may be required by
law.
33.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
33.5 HSR Filing. Promptly following the date hereof, Sprint will make
----------
all filings with and give all notices to governmental or regulatory authorities
required of Sprint pursuant to the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended ("HSR Act"), in connection with consummating the
transactions contemplated by this Agreement. Sprint will use all commercially
reasonable efforts to obtain early termination of all applicable waiting periods
under the HSR Act.
34. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
2.3 Exercise.
--------
<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
35. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever created by or arising through
Stockholder.
<PAGE>
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
36. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
37. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sprint upon the breach by
<PAGE>
Stockholder of such covenants and agreements, Sprint shall have the right to
obtain injunctive relief to restrain any breach or threatened breach of such
covenants or agreements or otherwise to obtain specific performance of any of
such covenants or agreements.
38. Miscellaneous.
-------------
38.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
38.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
38.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
38.4 Assignment. This Agreement may not be transferred or assigned by
----------
Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
38.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
38.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
191 Peachtree Street
<PAGE>
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: Ahab Capital Management
450 Park Ave., 28th Fl.
New York, NY 10022
Attention: Jonathan Gallen
Telecopy: (___) _____________
with a copy to: _____________________________
_____________________________
_____________________________
Attention: __________________
Telecopy: (___) _____________
38.7 Governing Law. This Agreement shall be governed by and construed
-------------
and enforced in accordance with the laws of the State of New York, without
regard to its principles of conflicts of laws.
38.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
38.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
---------------------------
Name: _________________________
Title: ________________________
PEQUOD INVESTMENTS L.P.
By: /s/ Jonathan Gallen
---------------------------
Name: Jonathan Gallen
-------------------------
Title: Investment Advisor
------------------------
<PAGE>
EXHIBIT 9
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
23, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and Pequod International, Ltd., a Bahamian corporation
("Stockholder"), with respect to the shares of common stock, par value $.01 per
share (the "Company Common Stock"), of People's Choice TV Corp., a Delaware
corporation (the "Company"), owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 75,000 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
39. Certain Covenants.
-----------------
39.1 Lock-Up. Stockholder hereby covenants and agrees during the
-------
term of this Agreement that (a) except as consented to in writing by Sprint in
its sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
39.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
39.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any press releases or otherwise making any public statements with
respect to the transactions
<PAGE>
contemplated herein and shall not issue any such press release or make any such
public statement without the approval of Sprint, except as may be required by
law.
39.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
39.5 HSR Filing. Promptly following the date hereof, Sprint will
----------
make all filings with and give all notices to governmental or regulatory
authorities required of Sprint pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act"), in connection with
consummating the transactions contemplated by this Agreement. Sprint will use
all commercially reasonable efforts to obtain early termination of all
applicable waiting periods under the HSR Act.
40. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
2.3 Exercise.
--------
<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
41. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever created by or arising through
Stockholder.
<PAGE>
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
42. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
43. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sprint upon the breach by
<PAGE>
Stockholder of such covenants and agreements, Sprint shall have the right to
obtain injunctive relief to restrain any breach or threatened breach of such
covenants or agreements or otherwise to obtain specific performance of any of
such covenants or agreements.
44. Miscellaneous.
-------------
44.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
44.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
44.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
44.4 Assignment. This Agreement may not be transferred or assigned
----------
by Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
44.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
44.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
191 Peachtree Street
<PAGE>
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: Ahab Capital Management
450 Park Ave., 28th Floor
New York, NY 10022
Attention: Jonathan Gallen
Telecopy: (___) ____________
with a copy to: ____________________________
____________________________
____________________________
Attention: _________________
Telecopy: (___) ____________
44.7 Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
44.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
44.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
--------------------------
Name: _________________________
Title: ________________________
PEQUOD INTERNATIONAL LTD.
By: /s/ Jonathan Gallen
---------------------------
Name: _________________________
Title: ________________________
<PAGE>
EXHIBIT 10
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
23, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and John Glade ("Stockholder"), with respect to the shares of common
stock, par value $.01 per share (the "Company Common Stock"), of People's Choice
TV Corp., a Delaware corporation (the "Company"), owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 100,000 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
45. Certain Covenants.
-----------------
45.1 Lock-Up. Stockholder hereby covenants and agrees during the
-------
term of this Agreement that (a) except as consented to in writing by Sprint in
its sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
45.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
45.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any press releases or otherwise making any public statements with
respect to the transactions
<PAGE>
contemplated herein and shall not issue any such press release or make any such
public statement without the approval of Sprint, except as may be required by
law.
45.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
45.5 HSR Filing. Promptly following the date hereof, Sprint will
----------
make all filings with and give all notices to governmental or regulatory
authorities required of Sprint pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act"), in connection with
consummating the transactions contemplated by this Agreement. Sprint will use
all commercially reasonable efforts to obtain early termination of all
applicable waiting periods under the HSR Act.
46. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
2.3 Exercise.
--------
<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
47. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever created by or arising through
Stockholder.
<PAGE>
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
48. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
49. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sprint upon the breach by
<PAGE>
Stockholder of such covenants and agreements, Sprint shall have the right to
obtain injunctive relief to restrain any breach or threatened breach of such
covenants or agreements or otherwise to obtain specific performance of any of
such covenants or agreements.
50. Miscellaneous.
-------------
50.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
50.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
50.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
50.4 Assignment. This Agreement may not be transferred or assigned
----------
by Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
50.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
50.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
191 Peachtree Street
<PAGE>
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: John Glade
206 Las Lomas Dr.
Austin, TX 78746
Attention: _________________
Telecopy: (___) ____________
with a copy to: ____________________________
____________________________
____________________________
Attention: _________________
Telecopy: (___) ____________
50.7 Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
50.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
50.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
-------------------------
Name: ________________________
Title: _______________________
/s/ John Glade
_____________________________
John Glade
<PAGE>
EXHIBIT 11
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
23, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and James B. Rubin Family Accounts ("Stockholder"), with respect to
the shares of common stock, par value $.01 per share (the "Company Common
Stock"), of People's Choice TV Corp., a Delaware corporation (the "Company"),
owned by Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 543,500 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
51. Certain Covenants.
-----------------
51.1 Lock-Up. Stockholder hereby covenants and agrees during the
-------
term of this Agreement that (a) except as consented to in writing by Sprint in
its sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
51.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
51.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any press releases or otherwise making any public statements with
respect to the transactions
<PAGE>
contemplated herein and shall not issue any such press release or make any such
public statement without the approval of Sprint, except as may be required by
law.
51.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
51.5 HSR Filing. Promptly following the date hereof, Sprint will
----------
make all filings with and give all notices to governmental or regulatory
authorities required of Sprint pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act"), in connection with
consummating the transactions contemplated by this Agreement. Sprint will use
all commercially reasonable efforts to obtain early termination of all
applicable waiting periods under the HSR Act.
52. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
2.3 Exercise.
--------
<PAGE>
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
53. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims, liens, options, proxies, charges, participations and
encumbrances of any kind or character whatsoever created by or arising through
Stockholder.
<PAGE>
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
54. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
55. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Stockholder which are
contained in this Agreement. It is accordingly agreed that, in addition to any
other remedies which may be available to Sprint upon the breach by
<PAGE>
Stockholder of such covenants and agreements, Sprint shall have the right to
obtain injunctive relief to restrain any breach or threatened breach of such
covenants or agreements or otherwise to obtain specific performance of any of
such covenants or agreements.
56. Miscellaneous.
-------------
56.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
56.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
56.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
56.4 Assignment. This Agreement may not be transferred or assigned
----------
by Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
56.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
56.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
with a copy to: King & Spalding
191 Peachtree Street
<PAGE>
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: James B. Rubin Family Accounts
c/o Resurgence Asset
Management, L.L.C.
10 New King St.
White Plains, NY 10604
Attention: ___________________
Telecopy: (___) ______________
with a copy to: ______________________________
______________________________
______________________________
Attention: ___________________
Telecopy: (___) ______________
56.7 Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
56.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
56.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
--------------------------
Name: _________________________
Title: ________________________
JAMES B. RUBIN FAMILY ACCOUNTS
By: /s/ James B. Rubin
---------------------------
Name: _________________________
Title: ________________________
<PAGE>
EXHIBIT 12
STOCKHOLDER AND OPTION AGREEMENT
--------------------------------
THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April
26, 1999, is entered into between Sprint Corporation, a Kansas corporation
("Sprint"), and various funds controlled by Tudor Investment Corporation, a
_________ corporation (see page 8) ("Stockholder"), with respect to the shares
of common stock, par value $.01 per share (the "Company Common Stock"), of
People's Choice TV Corp., a Delaware corporation (the "Company"), owned by
Stockholder.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, as of the date hereof, the Stockholder beneficially owns and has
the power to vote 670,000 shares of Company Common Stock (including any and all
rights attached thereto to acquire shares of stock of the Company if the Company
adopts a stockholders' rights plan, and any other rights associated therewith,
the "Option Shares"); and
WHEREAS, Sprint desires to enter into this Agreement in connection with its
efforts to consummate an acquisition of the Company.
NOW, THEREFORE, in contemplation of the foregoing and in consideration of
the mutual agreements, covenants, representations and warranties contained
herein and intending to be legally bound hereby, the parties hereto agree as
follows:
57. Certain Covenants.
-----------------
57.1 Lock-Up. Stockholder hereby covenants and agrees during the
-------
term of this Agreement that (a) except as consented to in writing by Sprint in
its sole discretion, Stockholder will not sell, transfer, assign, pledge,
hypothecate, tender or otherwise dispose of or limit its right to vote in any
manner any of the Option Shares, or agree to do any of the foregoing, and (b)
Stockholder will not take any action which would have the effect of preventing
or disabling Stockholder from performing its obligations under this Agreement.
57.2 Irrevocable Proxy. Stockholder has revoked or terminated any
-----------------
proxies, voting agreements or similar arrangements previously given or entered
into with respect to the Option Shares and hereby irrevocably appoints Sprint,
during the term of this Agreement, as proxy for Stockholder to vote (or refrain
from voting) in any manner as Sprint, in its sole discretion, may see fit, all
of the Option Shares for Stockholder and in Stockholder's name, place and stead,
at any annual, special or other meeting or action of the stockholders of the
Company, as applicable, or at any adjournment thereof or pursuant to any consent
of the stockholders of the Company, in lieu of a meeting or otherwise, with
respect to any issue brought before the stockholders of the Company, other than
with respect to the election of directors of the Company, for which the
stockholders of the Company are entitled to vote.
57.3 Public Announcement. Stockholder shall consult with Sprint
-------------------
before issuing any
<PAGE>
press releases or otherwise making any public statements with respect to the
transactions contemplated herein and shall not issue any such press release or
make any such public statement without the approval of Sprint, except as may be
required by law.
57.4 Stop Transfer Instruction. Promptly following the date hereof,
-------------------------
Stockholder and Sprint shall deliver joint written instructions to the Company
and to the Company's transfer agent stating that the Option Shares may not be
sold, transferred, pledged, assigned, hypothecated, tendered or otherwise
disposed of in any manner without the prior written consent of Sprint or except
in accordance with the terms and conditions of this Agreement.
57.5 HSR Filing. Promptly following the date hereof, Sprint will
----------
make all filings with and give all notices to governmental or regulatory
authorities required of Sprint pursuant to the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended ("HSR Act"), in connection with
consummating the transactions contemplated by this Agreement. Sprint will use
all commercially reasonable efforts to obtain early termination of all
applicable waiting periods under the HSR Act.
58. Grant of Option.
---------------
2.1 Option. Upon the terms and subject to the conditions of this
------
Agreement, Stockholder hereby grants to Sprint or Sprint's designee an
irrevocable option (the "Option") to purchase the Option Shares. Upon exercise
of the Option and purchase of the Option Shares, Sprint shall not assume any
liabilities or obligations (if any) of Stockholder related to or in connection
with such Option Shares and arising prior to the Option Closing Date (as defined
hereinafter).
2.2 Option Price. The purchase price payable by Sprint or its
------------
designee at the Option Closing (as hereinafter defined) for the Option Shares
shall be an amount equal to $10.00 per Option Share (the "Option Price");
provided, however, if prior to the Option Closing, Sprint shall purchase any
- -------- -------
shares of the Company Common Stock, or make a tender offer for shares of the
Company Common Stock, for an amount per share in excess of the Option Price or
amend the merger agreement with the Company to increase the per share
consideration in an amount per share in excess of the Option Price or (in either
case, the "Excess Amount"), then the amount per Option Share to be paid by
Sprint shall equal the sum of the Option Price plus the Excess Amount. If
following the Option Closing, Sprint shall purchase any shares of the Company
Common Stock, or make a tender offer for shares of the Company Common Stock, for
an amount per share, or amend the merger agreement with the Company to increase
the per share consideration in an amount per share, in excess of the sum of the
Option Price plus, if applicable, the Excess Amount plus any other amount
previously remitted pursuant to this Section 2.2 (the "Subsequent Excess
Amount"), then Sprint shall forthwith remit to Stockholder an amount equal to
the Subsequent Excess Amount for each Option Share purchased at the Option
Closing. References in this Section 2.2 to the purchase of shares of Company
Common Stock shall include such purchases pursuant to a merger agreement with
the Company.
<PAGE>
2.3 Exercise.
--------
(a) Sprint or its designee shall be entitled to exercise the Option by
giving written notice to Stockholder. Such notice shall specify a date (not
earlier than one business day or later than three business days from the date
such notice is delivered to Stockholder) and place for closing of the exercise
of the Option (the "Option Closing"). Upon delivery of notice exercising the
Option, the Option shall be deemed to have been exercised by Sprint or its
designee irrespective of the actual date of the Option Closing (the actual date
of the Option Closing is referred to hereinafter as the "Option Closing Date").
At the Option Closing, Sprint or its designee will deliver to Stockholder the
Option Price (as adjusted pursuant to Section 2.2, if necessary) with respect to
the Option Shares, by wire transfer of immediately available funds to an account
designated in writing by Stockholder prior to the Option Closing Date.
(b) Upon payment of the Option Price as provided in Section 2.3
hereof, the Stockholder shall deliver to Sprint or its designee at the Option
Closing, (i) the certificates representing the Option Shares duly endorsed in
blank for transfer, or accompanied by duly executed stock powers in blank, in
each case with signatures guaranteed by a national bank or trust company or a
member firm of the New York Stock Exchange, Inc. and (ii) all such other
agreements, endorsements, assignments and other instruments as are necessary or
desirable, in Sprint's sole and absolute discretion, to vest in Sprint or its
designee good and marketable title to such Option Shares or to evidence of
record the sale and assignment of such Option Shares to Sprint or its designee.
2.4 Option Expiration/Put Right. Except as provided below, the
---------------------------
Option shall terminate and expire 10 days after the transactions contemplated by
this Agreement receive approval required by the HSR Act, including early
termination or lapse of the HSR Act waiting period ("HSR Approval"), if the
Option has not been exercised by Sprint or its designee on or before such date
(the "Expiration Date"). If the Option has not been exercised by Sprint on or
before the Expiration Date, Stockholder shall have the right at such time, and
for a period of 30 days thereafter, to deliver a written notice to Sprint (the
"Stockholder Notice") requiring that Sprint or its designee purchase the Option
Shares at the Option Price, as adjusted (if necessary), including payment of any
Excess Amount or Subsequent Excess Amount that would be payable if Sprint
exercised the Option, in accordance with Section 2.2 hereof (the "Put Right").
Upon the exercise by Stockholder of the Put Right, the parties hereto shall
consummate the purchase and sale of the Option Shares in accordance with Section
2.3 hereof.
59. Representations and Warranties of Stockholder. Stockholder hereby
---------------------------------------------
represents and warrants to Sprint, as of the date hereof and as of the Closing
Date, as follows:
3.1 Ownership. Stockholder has good and marketable title to, and is
---------
the sole legal and beneficial owner of the Option Shares, in each case free and
clear of all liabilities, claims, liens, options, proxies, charges,
participations and encumbrances of any kind or character whatsoever. At the
Option Closing, Stockholder will transfer and convey to Sprint or its designee
good and marketable title to the Option Shares, free and clear of all
liabilities, claims,
<PAGE>
liens, options, proxies, charges, participations and encumbrances of any kind or
character whatsoever created by or arising through Stockholder.
3.2 Authorization. Stockholder has all requisite power and authority
-------------
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby and has sole voting power and sole power of disposition,
with respect to all of the Option Shares owned by Stockholder with no
restrictions on its voting rights or rights of disposition pertaining thereto.
Stockholder has duly executed and delivered this Agreement and this Agreement
is a legal, valid and binding agreement of Stockholder, enforceable against
Stockholder in accordance with its terms.
3.3 Stockholder Has Adequate Information. Stockholder is a
------------------------------------
sophisticated seller with respect to the Option Shares and has adequate
information concerning the business and financial condition of the Company to
make an informed decision regarding the sale of the Option Shares and has
independently and without reliance upon Sprint and based on such information as
Stockholder has deemed appropriate, made its own analysis and decision to enter
into this Agreement. Stockholder acknowledges that Sprint has not made and does
not make any representation or warranty, whether express or implied, of any kind
or character except as expressly set forth in this Agreement. Stockholder
acknowledges that the sale of the Option Shares by Stockholder to Sprint is
irrevocable, and that Stockholder shall have no recourse to the Option Shares or
Sprint, except with respect to breaches of representations, warranties,
covenants and agreements expressly set forth in this Agreement.
3.4 Sprint's Excluded Information. Stockholder acknowledges and
-----------------------------
confirms that (a) Sprint may possess or hereafter come into possession of
certain non-public information concerning the Option Shares and the Company
which is not known to Stockholder and which may be material to Stockholder's
decision to sell the Option Shares ("Sprint's Excluded Information"), (b)
Stockholder has requested not to receive Sprint's Excluded Information and has
determined to sell the Option Shares notwithstanding its lack of knowledge of
Sprint's Excluded Information, and (c) Sprint shall have no liability or
obligation to Stockholder in connection with, and Stockholder hereby waives and
releases Sprint from, any claims which Stockholder or its successors and assigns
may have against Sprint (whether pursuant to applicable Option Shares, laws or
otherwise) with respect to the non-disclosure of Sprint's Excluded Information;
provided, however, nothing contained in this Section 3.4 shall limit
- -------- -------
Stockholder's right to rely upon the express representations and warranties made
by Sprint in this Agreement, or Stockholder's remedies in respect of breaches of
any such representations and warranties.
60. Survival of Representations and Warranties. The respective
------------------------------------------
representations and warranties of Stockholder and Sprint contained herein shall
not be deemed waived or otherwise affected by any investigation made by the
other party hereto, and each representation and warranty contained herein shall
survive the closing of the transactions contemplated hereby until the expiration
of the applicable statute of limitations, including extensions thereof.
61. Specific Performance. Stockholder acknowledges that Sprint will be
--------------------
irreparably
<PAGE>
harmed and that there will be no adequate remedy at law for a violation of any
of the covenants or agreements of Stockholder which are contained in this
Agreement. It is accordingly agreed that, in addition to any other remedies
which may be available to Sprint upon the breach by Stockholder of such
covenants and agreements, Sprint shall have the right to obtain injunctive
relief to restrain any breach or threatened breach of such covenants or
agreements or otherwise to obtain specific performance of any of such covenants
or agreements.
62. Miscellaneous.
-------------
62.1 Binding Effect. This Agreement shall be binding upon and inure
--------------
to the benefit of and be enforceable by the parties hereto and their respective
representatives and permitted successors and assigns.
62.2 Entire Agreement. This Agreement contains the entire
----------------
understanding of the parties and supersedes all prior agreements and
understandings between the parties with respect to its subject matter. This
Agreement may be amended only by a written instrument duly executed by the
parties hereto.
62.3 Headings. The headings contained in this Agreement are for
--------
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Time is of the essence with respect to all
provisions of this Agreement.
62.4 Assignment. This Agreement may not be transferred or assigned
----------
by Stockholder but may be assigned by Sprint to any of its affiliates or to any
successor to its business and will be binding upon and inure to the benefit of
any such affiliate or successor.
62.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be an original, but each of which together
shall constitute one and the same Agreement.
62.6 Notices. All notices, requests, claims, demands and other
-------
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given if so given) by delivery, telegram or telecopy,
or by mail (registered or certified mail, postage prepaid, return receipt
requested) or by any national courier service, provided that any notice
delivered as herein provided shall also be delivered by telecopy at the time of
such delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses (or at such other address for a
party as shall be specified by like notice, provided that notices of a change of
address shall be effective only upon receipt thereof):
(a) If to Sprint: Sprint Corporation
2330 Shawnee Mission Parkway
Westwood, Kansas 66205
Attention: Corporate Secretary
Telecopy: (913) 624-2256
<PAGE>
with a copy to: King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
Attention: Bruce N. Hawthorne, Esq.
Telecopy: (404) 572-5146
(b) If to
Stockholder: Tudor Investment Corp.
_____________________________
_____________________________
Attention: __________________
Telecopy: (___) _____________
with a copy to: _____________________________
_____________________________
_____________________________
Attention: __________________
Telecopy: (___) _____________
62.7 Governing Law. This Agreement shall be governed by and
-------------
construed and enforced in accordance with the laws of the State of New York,
without regard to its principles of conflicts of laws.
62.8 Enforceability. The invalidity or unenforceability of any
--------------
provision or provisions of this Agreement shall not affect the validity or
enforceability of any other provision of this Agreement, which shall remain in
full force and effect.
62.9 Further Assurances. From time to time at or after the Option
------------------
Closing, at Sprint's request and without further consideration, Stockholder
shall execute and deliver to Sprint such documents and take such action as
Sprint may reasonably request in order to consummate more effectively the
transactions contemplated hereby and to vest in Sprint good, valid and
marketable title to the Option Shares, including, but not limited to, using its
best efforts to cause the appropriate transfer agent or registrar to transfer of
record the Option Shares.
<PAGE>
IN WITNESS WHEREOF, Sprint and Stockholder have caused this Agreement to be
duly executed as of the day and year first above written.
SPRINT CORPORATION
By: /s/ Theodore Schell
---------------------------
Name: _________________________
Title: ________________________
TUDOR INVESTMENT CORP.
By: /s/ James J. Palotta
---------------------------
Name: James J. Palotta
-------------------------
Title: Managing Director
------------------------
7
<PAGE>
Stockholders Shares Held
------------ -----------
Tudor BVI Futures, Ltd. 168,100
Raptor Global Fund, L.P. 88,100
Raptor Global Fund, Ltd. 332,800
Tudor Proprietary Trading, L.L.C. 41,400
The Upper Mill Capital Appreciation 670,000
Fund Ltd.
8
