UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
SCHEDULE 13D/A
Under the Securities Exchange Act of 1934
(Amendment No. 3)
PEOPLE'S CHOICE TV CORP.
(Name of Issuer)
COMMON STOCK, $.01 PAR VALUE
(Title of Class of Securities)
710847104
--------------
(CUSIP Number)
Victor Oristano
c/o People's Choice TV Corp.
2 Corporate Drive, Suite 249
Shelton, Connecticut 06484
(203) 929-2800
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
June 27, 1996
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D, and
is filing this Schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ]
Check the following box if a fee is being paid with
the statement [ ]
Page 1 of 10 pages
Exhibit Index on Page 10
<PAGE>
CUSIP NO. 710847104 PAGE 2 OF 10 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Alda Communications Corp.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00 (See Item 3)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware corporation
7 SOLE VOTING POWER
NUMBER -0-
OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY -0-
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON -0-
WITH
10 SHARED DISPOSITIVE POWER
-0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
-0-
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0%
14 TYPE OF REPORTING PERSON*
CO
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
CUSIP NO. 710847104 PAGE 3 OF 10 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Victor Oristano
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
00 (See Item 3)
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(D) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
7 SOLE VOTING POWER
NUMBER 155,136
OF
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 6,613
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 155,136
WITH
10 SHARED DISPOSITIVE POWER
6,613
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
161,749
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*
[ ]
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.3%
14 TYPE OF REPORTING PERSON*
IN
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
Page 4 of 10
INTRODUCTION
This Statement constitutes Amendment No. 3 (this "Amendment")
to that certain Schedule 13D dated July 26, 1994 and filed with the
Securities and Exchange Commission (the "Commission") on July 27, 1994,
as amended by that certain Amendment No. 1 dated June 10, 1996 and filed
with the Commission on June 19, 1996 and that certain Amendment No. 2
dated June 11, 1996 and filed with the Commission on June 19, 1996 (as
so amended, the "Amended Schedule 13D"), for the following reporting
persons: Alda Communications Corp. ("Alda CC") and Victor Oristano
("Oristano"; together with Alda CC, the "Reporting Persons"). This
Amendment is made in order to remove Alda CC and Oristano from their
status as filing persons.
On June 27, 1996, Alda CC merged with and into People's Choice
TV Corp. (the "Issuer"), with the Issuer as the surviving corporation
(the "Merger"). At the effective time of the Merger, all 661,304 shares
of Common Stock, $.01 par value (the "Common Stock"), of the Issuer then
owned by Alda CC became treasury shares of the Issuer and an equal
number of shares of Common Stock were issued to the stockholders of Alda
CC in a non-taxable transaction. Accordingly, at the effective time of
the Merger, the separate existence of Alda CC ceased and each of Alda CC
and Victor Oristano ceased to be the beneficial owner of more than five
percent (5%) of the shares of Common Stock of the Issuer.
Capitalized terms used herein and not defined herein have the
respective meanings set forth in the Amended Schedule 13D.
ITEM 1. SECURITY AND ISSUER.
The class of equity securities to which this Amendment relates
is the Issuer's Common Stock, $.01 par value. The Issuer is People's
Choice TV Corp. and its principal executive offices are located at 2
Corporate Drive, Suite 249, Shelton, Connecticut 06484.
ITEM 2. IDENTITY AND BACKGROUND
This Amendment is being filed on behalf of the Reporting
Persons in order to report that each of the Reporting Persons has ceased
to be the beneficial owner of more than five percent (5%) of the shares
of Common Stock of the Issuer and, accordingly, to remove each of the
Reporting Persons as a filing person.
<PAGE>
Page 5 of 10
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Upon consummation of the Merger, all 661,304 shares of Common
Stock of the Issuer then owned by Alda CC became treasury shares of the
Issuer and an equal number of shares of Common Stock were issued to the
stockholders of Alda CC in a non-taxable transaction. The Merger was
without other consideration.
ITEM 4. PURPOSE OF TRANSACTION
For Oristano family wealth and tax planning purposes, Alda CC
entered into the Merger with the Issuer such that all 661,304 shares of
Common Stock of the Issuer owned by Alda CC at the effective time of
such merger would become treasury shares of the Issuer and an equal
number of shares would be issued to the stockholders of Alda CC in a
non-taxable transaction.
Except as otherwise noted in the Amended Schedule 13D and this
Amendment, the Reporting Persons have no plans or proposals which would
result in any of the consequences listed in paragraphs (a) - (j) of Item
4 of Schedule 13D.
<PAGE>
Page 6 of 10
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) and (b) Set forth in the table below are the number and
percentage of shares of Common Stock of the Issuer beneficially owned by
each Reporting Person and each other person named in Item 2 as of the
date hereof:
<TABLE>
<CAPTION>
NUMBER OF NUMBER OF
SHARES SHARES
BENEFICIALLY BENEFICIALLY
OWNED WITH OWNED WITH AGGREGATE
SOLE SHARED NUMBER PERCENTAGE
VOTING AND VOTING AND OF SHARES OF SHARES
DISPOSITIVE DISPOSITIVE BENEFICIALLY BENEFICIALLY
NAME POWER POWER OWNED OWNED
<S> <C> <C> <C> <C>
Alda CC 0 0 0 0.0%
Victor Oristano 155,136<F1> 6,613<F2> 161,749<F1><F2> 1.3%<F1><F2>
Matthew Oristano 664,702<F3> 33,065<F4> 697,767<F3><F4> 5.4%<F3><F4>
Mark Oristano 79,357<F5> 26,452<F6> 105,809<F5><F6> 0.8%<F5><F6>
Michael Oristano 105,809<F7> 26,452<F6> 132,261<F6><F7> 1.0%<F6><F7>
<FN>
<F1> Includes 60,834 shares of Common Stock which Victor Oristano has an
option to acquire within 60 days of the date hereof pursuant to stock
option agreements and 94,302 shares of Common Stock issued to Victor
Oristano pursuant to the Merger.
<F2> The 6,613 shares of Common Stock that may be deemed beneficially owned
by Victor Oristano with shared voting and dispositive power were
issued to Victor Oristano and Matthew Oristano as Trustees of the
Marital Trust under Article III.B.1 of the Joan M. Oristano Revocable
Trust under Agreement dated March 1, 1996 pursuant to the Merger.
<F3> Includes 121,667 shares which Matthew Oristano has an option to acquire
within 60 days of the date hereof pursuant to stock option agreements,
437,227 Shares owned of record by Alda Multichannels, Ltd., a
corporation controlled by Matthew Oristano and his two brothers and
105,808 shares of Common Stock issued to Matthew Oristano pursuant to
the Merger.
<F4> The 33,065 shares of Common Stock that may be deemed beneficially owned
by Matthew Oristano with shared voting and dispositive power include
6,613 shares issued to Victor Oristano and Matthew Oristano as Trustees
of the Marital Trust under Article III.B.1 of the Joan M. Oristano
Revocable Trust under Agreement dated March 1, 1996, 13,226 shares
issued to Mark, Michael and Matthew Oristano as Trustees under the
Trust Agreement dated May 3, 1983 for the benefit of Kelly Robert
Oristano, and 13,226 shares issued to Mark, Michael and Matthew
Oristano as Trustees under the Trust Agreement dated May 3, 1983 for
the benefit of Stacy Joan Oristano, which shares were issued in each
case pursuant to the Merger.
<F5> Includes 79,357 shares of Common Stock issued to Mark Oristano pursuant
to the Merger.
<F6> The 26,452 shares of Common Stock that may be deemed beneficially owned
by each of Mark Oristano and Michael Oristano with shared voting and
dispositive power include 13,226 shares issued to Mark, Michael and
Matthew Oristano as Trustees under the Trust Agreement dated May 3,
1983 for the benefit of Kelly Robert Oristano and 13,226 shares
issued to Mark, Michael and Matthew Oristano as Trustees under the
Trust Agreement dated May 3, 1983 for the benefit of Stacy Joan
Oristano, which shares were issued in each case pursuant to the Merger.
<F7> Includes 105,809 shares of Common Stock issued to Michael Oristano
pursuant to the Merger.
</FN>
</TABLE>
<PAGE>
Page 7 of 10
(c) None.
(d) None.
(e) On June 27, 1996, pursuant to the Merger, all 661,304 shares of
Common Stock of the Issuer then owned by Alda CC at the effective time of the
Merger became treasury shares of the Issuer and an equal number of shares of
Common Stock were issued to the stockholders of Alda CC in a non-taxable
transaction. Accordingly, at the effective time of the Merger, the separate
existence of Alda CC ceased and each of Alda CC and Victor Oristano ceased to
be the beneficial owner of more than five percent (5%) of the shares of Common
Stock of the Issuer.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER
Victor Oristano, Matthew Oristano and the Issuer entered into an
Agreement, dated as of October 27, 1994 (the "Blackstone Agreement"), with
Blackstone Capital Partners II Merchant Banking Fund L.P., a Delaware limited
partnership (the "Merchant Banking Fund"), and Blackstone Offshore Capital
Partners II L.P., a Cayman Islands limited partnership (together with the
Merchant Banking Fund, "Blackstone"), in connection with an investment in
preferred stock of the Issuer by Blackstone. The Blackstone Agreement is
attached as Exhibit 1 to this Amendment. Pursuant to the Blackstone
Agreement, Victor Oristano and Matthew Oristano agreed that they and their
affiliates (including Alda CC) would not sell or otherwise transfer their
shares of Common Stock prior to September 30, 1999, subject to certain
exceptions. This obligation terminates if Blackstone and its affiliates do
not own preferred stock and/or Common Stock of the Issuer in certain minimum
amounts. Victor Oristano and Matthew Oristano also agreed to use their best
efforts to cause the nominating committee of the Board of Directors of the
Issuer to nominate and recommend to stockholders the election of persons
which Blackstone is entitled to designate and to vote all shares of Common
Stock owned by them and their affiliates (including Alda CC) in favor of the
election of such persons. Victor Oristano and Matthew Oristano also agreed
to vote all shares of Common Stock owned by them and their affiliates
(including Alda CC) in favor of certain amendments to the Certificate of
Incorporation of the Issuer which are necessary to give effect to the
provisions contained in the stock purchase agreement pursuant to which
Blackstone purchased such preferred stock and the Certificate of
Designations relating to such preferred stock. These obligations terminate
if Blackstone and certain permitted transferees do not own preferred stock
and/or Common Stock in certain minimum amounts.
In exchange for Blackstone's consent to the Merger and the resulting
issuance of 661,304 shares of Common Stock to the stockholders of Alda CC,
all of the stockholders of Alda CC entered into a Joinder Agreement dated
June 27, 1996 (the "Joinder Agreement") with Blackstone whereby the
stockholders of Alda CC became a party to the Blackstone Agreement. The
Joinder Agreement is attached as Exhibit 2 to this Amendment.
<PAGE>
Page 8 of 10
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
1 Agreement dated as of October 27, 1994.
2 Joinder Agreement dated as of June 27, 1996.
<PAGE>
Page 9 of 10
SIGNATURES
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: July 31, 1996 PEOPLE'S CHOICE TV CORP.,
as successor by merger to
Alda Communications Corp.
/s/ Victor Oristano
By:-----------------------------------
Victor Oristano
Vice Chairman
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.
/s/ Victor Oristano
Dated: July 31, 1996 -----------------------------------
Victor Oristano
<PAGE>
Page 10 of 10
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
1 Agreement dated as of October 27, 1994.
2 Joinder Agreement dated as of June 27, 1996.
<PAGE>
EXHIBIT 1
AGREEMENT
AGREEMENT, dated as of October 27, 1994 (the "Agreement"), by
and among BLACKSTONE CAPITAL PARTNERS II MERCHANT BANKING FUND L.P., a
Delaware limited partnership, BLACKSTONE OFFSHORE CAPITAL PARTNERS II
L.P., a Cayman Islands limited partnership (collectively, the
"Purchasers"), Matthew Oristano and Victor Oristano (collectively, the
"Oristanos") and People's Choice TV Corp., a Delaware corporation (the
"Company").
W I T N E S S E T H:
WHEREAS, the Oristanos and their Affiliates (as defined herein)
currently own shares of the Company's Common Stock, par value $.01 per
share (the "Common Stock"), constituting approximately 11.3% of the
outstanding Common Stock; and
WHEREAS, pursuant to the Stock Purchase Agreement, dated the
date hereof (the "Stock Purchase Agreement"), by and between the Company
and Purchasers, Purchasers have agreed to purchase 500,000 shares of the
Company's Convertible Cumulative Pay-in-Kind Preferred Stock, par value
$.01 per share (the "Preferred Stock"); and
WHEREAS, to induce Purchasers to purchase the Preferred Stock,
the Oristanos have agreed to enter into this Agreement for the purpose
of governing certain aspects of their relationship with the Purchasers,
as holders of Preferred Stock; and
WHEREAS, the execution and delivery of this Agreement is a
condition to the obligation of the Purchasers to purchase the Preferred
Stock as set forth in Section 5.01 of the Stock Purchase Agreement; and
WHEREAS, it is in the best interests of such stockholders that
such aspects of their relationship be so governed;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements contained herein, the parties hereto agree as follows:
Section 1. DEFINITIONS. As used in this Agreement, the
following terms shall have the meanings set forth below:
"Affiliate" or "affiliate" shall mean, with respect to any
Person, any other Person which directly or indirectly controls or is
controlled by or is under common control with such Person. As used in
this definition, "control" (including its correlative meanings,
"controlled by" and "under common control with") shall mean possession,
directly or
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indirectly, of power to direct or cause the direction of management or
policies (whether through ownership of securities or partnership or
other ownership interests, by contract or otherwise). To the extent
that any such term is used in relation to or in connection with any
statute and the definition of such term in such statute is broader or
different, then, in such context, such term shall have both the meaning
set forth in the preceding sentence as well as the meaning set forth in
such statute.
"Calculation Date" shall have the meaning set forth in the
Stock Purchase Agreement.
"Certificate of Designations" shall mean the Company's
Certificate of Designations relating to the Preferred Stock.
"Designated Transferee" shall have the meaning set forth in
the Certificate of Designations.
"Minimum Interest" shall have the meaning set forth in the
Certificate of Designations.
"Nominees" shall have the meaning set forth in Section 3(a)
hereof.
"Outstanding Interest" shall mean, with respect to any Person,
the percentage of the aggregate voting power of the outstanding Voting
Securities (other than voting power with respect to the election of
specified directors or a class vote on specified matters) represented by
the Voting Securities beneficially owned by such Person.
"Person" shall mean any individual, corporation, association,
partnership, group (as defined in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended), trust, joint venture, business trust
or unincorporated organization, or a government or any agency or
political subdivision thereof.
"Voting Securities" shall mean the Common Stock, the Preferred
Stock and any other securities of the Company having the voting power
under ordinary circumstances with respect to the election of directors
of the Company.
Section 2. OWNERSHIP INTEREST.
(a) Each Oristano represents and warrants to, and agrees
with, the Purchasers that as of the date hereof, such Oristano and his
affiliates beneficially own the number of shares of Common Stock set
forth on Exhibit A hereto.
(b) Prior to September 30, 1999, each of the Oristanos
will not, and the Oristanos will cause each of their Affiliates not to,
sell, assign, transfer, convey, pledge, hypothecate or otherwise dispose
of any of his or its Voting Securities so as to
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<PAGE>
reduce his or its Outstanding Interest from the level existing on the
date of this Agreement, other than pursuant to the terms set forth in
Exhibit B hereto, without the prior written consent of the Purchasers.
(c) The Oristanos covenant that they will deliver to
Purchasers (i) annually not later than 90 days after the end of each
fiscal year a true, correct and complete statement of all purchases and
sales of Common Stock by the Oristanos and their Affiliates during such
fiscal year and (ii) within 5 days of filing thereof, all reports and
forms filed with the Securities and Exchange Commission as well as any
other information relevant in determining compliance with the provisions
of the Agreement and this terms of Exhibit B hereto.
(d) The provisions of this Section 2 shall terminate from
and after such time following the Calculation Date as Purchasers and
their Affiliates own less than the Minimum Interest in the aggregate.
Section 3. DIRECTORS.
(a) From and after the date hereof, the Oristanos shall
and shall cause each of their Affiliates to, use their best efforts (i)
at all times to take such action as is necessary to ensure that the
nominating committee of the Board of Directors of the Company shall
nominate and recommend to stockholders of the Company the election of
the nominees to which Purchasers are then entitled to designate pursuant
to the provisions of Section 4.13 of the Stock Purchase Agreement (the
"Nominees") (including any replacement Nominees as contemplated by
Section 3(b) hereof), (ii) to vote their shares of Voting Securities
(including any shares of Voting Securities hereafter acquired), at any
regular or special meeting of the stockholders of the Company called for
the purpose of filling positions on the Board of Directors of the
Company, or in any written consent executed in lieu of such a meeting of
stockholders, in favor of the election of the Nominees (including any
such replacement Nominees), and take all such action as is necessary to
cause the election of the Nominees (including any such replacement
Nominees) to the Board of Directors of the Company and (iii) to take all
such action as is necessary to cause the Nominees (including any
replacement Nominees) to serve on the compensation committee of the
Board of Directors of the Company.
(b) If, prior to his or her election to the Board of
Directors of the Company pursuant to Section 3(a) hereof, any Nominee
shall be unable or unwilling to serve as a director of the Company, the
Purchasers shall be entitled to nominate a replacement who shall then be
a Nominee for purposes of this Section 3. If, following election to the
Board of Directors of the Company pursuant to Section 3(a) hereof, any
Nominee shall resign or be removed or be unable to serve for any reason
prior to the expiration of his or her term as a director of the Company,
the Purchasers shall within 30 days of such event notify the Board of
Directors of the Company in writing of a
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<PAGE>
replacement Nominee who shall then be a replacement Nominee for purposes
of this Section 3.
(c) Each of the Oristanos hereby agrees, and will cause
each of their Affiliates to agree, not to vote as a director or
stockholder in favor of, and not to take any other action in support of,
the removal of any Nominee director without cause. For the purposes of
this Section 3(c), "Cause" shall mean the commission by a director of an
act of fraud or embezzlement against the Company or any of its
subsidiaries or a conviction for a felony of, or a plea of guilty or
NOLO CONTENDERE thereto by, such Nominee director.
(d) In order to effectuate the provisions of this Section
3 and Section 4 hereof, each of the Oristanos hereby agrees, and will
cause each of their Affiliates to agree, that when any action or vote is
required to be taken pursuant to this Agreement, such Person shall use
his or its best efforts to call, or cause the appropriate officers and
directors of the Company to call, a special or annual meeting of
stockholders of the Company, as the case may be, to effectuate such
stockholder action.
(e) The provisions of this Section 3 shall terminate upon
the termination of the Company's obligations under Section 4.13 of the
Stock Purchase Agreement.
Section 4. CERTIFICATE OF INCORPORATION; BY-LAWS.
From and after the date hereof, each of the Oristanos shall,
and shall cause each of their Affiliates to, vote their shares of Voting
Securities, at any regular or special meeting of stockholders of the
Company or in any written consent executed in lieu of such a meeting of
stockholders, and shall take all action; as is necessary, to ensure that
(i) the Certificate of Incorporation and By-Laws of the Company do not
at any time conflict with the provisions of this Agreement and (ii) the
agreements of the Company set forth in Section 4.14 of the Stock
Purchase Agreement are given effect.
Section 5. SPECIFIC PERFORMANCE.
The Oristanos acknowledge that the rights granted to Purchasers
in this Agreement are of a special, unique and extraordinary character,
and that any breach of this Agreement by the Oristanos could not be
compensated for by damages. Accordingly, if the Oristanos breach any of
their obligations under this Agreement, Purchasers shall be entitled, in
addition to any other remedies that they may have, to enforcement of
this Agreement by a decree of specific performance requiring the
Oristanos to fulfill their obligations under this Agreement. The
Oristanos consent to personal jurisdiction in any such action brought in
the United States District Court for the Southern District of New York
or New York State Supreme Court and to service of process upon them in
the manner set forth in Section 7 hereof.
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<PAGE>
Section 6. HEADINGS.
The headings in this Agreement are for convenience of reference
only and shall not control or affect the meaning or construction of any
provisions hereof.
Section 7. NOTICES.
All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given, if delivered
personally, by telecopier or sent by overnight courier as follows: (i)
if to Purchasers, to the persons and at the addresses set forth in the
Stock Purchase Agreement and (ii) if to the Oristanos to:
Matthew Oristano
People's Choice TV Corp.
Two Corporate Drive, Suite 249
Shelton, CT 06484
Fax: (203) 929-1454
Matthew Oristano
68 Old Quarry Road
Woodbridge, CT 06525
Phone/Fax: (203) 393-3852
Victor Oristano
110 North Beach Road
Hobe Sound, FL 33455
Fax: (407) 546-2661
or to such other address or addresses as shall be designated in writing.
All notices shall be effective when received.
Section 8. APPLICABLE LAW.
This Agreement shall be governed by, and interpreted in
accordance with, the Laws of the State of New York applicable to
contracts made and to be performed in that State.
Section 9. SEVERABILITY.
Should any part of this Agreement for any reason be declared
invalid, such decision shall not affect the validity of any remaining
portion, which remaining portion shall remain in full force and effect
as if this Agreement had been executed with the invalid portion thereof
eliminated, and it is hereby declared the intention of the parties
hereto that
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<PAGE>
they would have executed the remaining portion of this Agreement without
including therein any such part or parts which may, for any reason, be
hereafter declared invalid.
Section 10. SUCCESSORS AND ASSIGNS, TRANSFEREES.
The provisions of this Agreement shall be binding upon and
accrue to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Either Purchaser may assign its
rights under this Agreement in whole or in part to any Affiliate and/or
to any Designated Transferee. The Oristanos may not delegate any of
their duties under this Agreement without the prior written consent of
Purchasers. Any purported assignment in violation of this Section shall
be void.
Section 11. AMENDMENTS; WAIVERS.
This Agreement may not be amended, modified or supplemented and
no waivers of or consents to departures from the provisions hereof may
be given, unless consented to in writing by the Purchasers and the
Oristanos.
Section 12. COUNTERPARTS.
This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall
constitute one and the same Agreement.
Section 13. TERMINATION. This Agreement shall terminate and be
of no further force and effect if the Stock Purchase Agreement shall be
terminated prior to the Closing (as defined in the Stock Purchase
Agreement) pursuant to Section 6.01 thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
MATTHEW ORISTANO
/s/ MATTHEW ORISTANO
By:----------------------------------------
Name:
VICTOR ORISTANO
By:----------------------------------------
Name:
PEOPLE'S CHOICE TV CORP.
6
<PAGE>
/s/ VICTOR ORISTANO
By:----------------------------------------
Name: Victor Oristano
Title: Vice-Chairman
BLACKSTONE CAPITAL PARTNERS II MERCHANT
BANKING FUND L.P.
By: Blackstone Management
Associates II L.P., its
General Partner
/s/ MARK T. GALLOGY
By:----------------------------------------
Name: Mark T. Gallogy
Title: General Partner
BLACKSTONE OFFSHORE CAPITAL PARTNERS II
L.P.
By: Blackstone Management
Associates II L.P., its
General Partner
/s/ MARK T. GALLOGY
By:----------------------------------------
Name: Mark T. Gallogy
Title: General Partner
7
<PAGE>
EXHIBIT A
OWNERSHIP OF SHARES
NUMBER OF SHARES OF
NAME COMMON STOCK OWNED
Victor Oristano
Alda Communications Corp. 664,521
Matthew Oristano
Alda Multichannels Ltd. 437,227
<PAGE>
EXHIBIT B
EXCEPTIONS TO TRANSFER RESTRICTIONS
A. Matthew Oristano and Victor Oristano and their Affiliates
(collectively, the "Oristanos") may, without limitation, each sell
5,000 shares of the Company's Common Stock owned beneficially by
them per quarter, for an aggregate of 10,000 shares of Common Stock
per quarter (as adjusted for stock splits and stock dividends
payable to holders of Common Stock generally).
B. The Oristanos may sell up to a percentage of their current total
beneficial ownership of Common Stock, inclusive of any Common Stock
sold under paragraph A above, pursuant to certain Common Stock
appreciation targets as outlined in the table below:
A B C D
STOCK % STOCK %
DATE PRICE SELLABLE PRICE SELLABLE
9/30/96 any 0% any 0%
10/1/96 $32.40 4% $38.02 6%
10/1/97 $38.88 12% $49.43 18%
10/1/98 $46.66 16% $64.26 24%
10/1/99 $55.99 20% $83.54 30%
10/2/99 any 100% any 100%
The percentages listed above shall be prorated for sales of Common
Stock that occur between the dates and/or stock prices listed above.
All stock prices are averages for the 30 trading days prior to the
date listed. Columns A and C above refer to an annual appreciation
of 20% and 30% respectively. In the event that the annual
appreciation is between those figures, then the sellable percentage
will be prorated between Columns B and D. Likewise, if the sale is
to be made on a date between those above, the annual appreciation
target will be calculated as of that date, and the sellable
percentage prorated by date as well. In addition, should the
annualized appreciation of the Common Stock (based on the price of
the Common Stock on the date of closing of the sale of the Preferred
Stock to Purchasers) as of the date of any sale on or after 10/1/97
be 40%, the Oristanos may sell 18% of their Common Stock, increasing
each month on a pro rata basis to a maximum of 30% of their shares
by 9/30/98. The parties agree that all percentages discussed in
this paragraph B are cumulative with regard to all sales of Common
Stock by the
<PAGE>
Oristanos. The prices set forth in columns A and C shall be
adjusted for stock splits, reclassifications and similar events in
the manner described in Section 9(g)(i) of the Certificate of
Designations relating to the Preferred Stock.
C. Notwithstanding any other terms herein, the Oristanos may at any
time transfer shares to entities controlled by the Oristanos, which
transfers (i) would result in the shares continuing to be listed as
beneficially owned by the Oristanos for federal securities law
reporting purposes or (ii) are to the Oristano Foundation in
existence as of the date of this Agreement.
D. If Matthew Oristano shall be relieved of his position as Chairman
and CEO of the Company or Victor Oristano shall be relieved of his
position as Vice-Chairman of the Company by the action of the Board
of Directors or the shareholders of the Company, the Oristanos will
be released from the restrictions contained in paragraphs A and B
above, unless their terminations are related to the Company being in
financial distress. The Company shall be deemed to be in financial
distress if either (i) the average price of the Common Stock for 30
consecutive trading days shall be less than 60% of the price of the
Common Stock on the day of closing of the sale of the Preferred
Stock to Purchasers or (ii) the Company shall have defaulted in the
payment of any interest on, or of any principal payment of, any
indebtedness.
E. The Oristanos may pledge up to 40% of their beneficial ownership in
the Company provided that the extent of beneficial ownership in the
Company pledged and the amount of beneficial ownership in the
Company sold exceed 40%.
F. The restrictions specified in this Exhibit B shall lapse and no
longer be of any effect from and after such time as Purchasers and
their Affiliates own less than the Minimum Interest in the
aggregate.
B-2
<PAGE>
Exhibit 2
As of June 27, 1996
Blackstone Capital Partners II
Merchant Banking Fund L.P.
Blackstone Offshore Capital
Partners II L.P.
Blackstone Family Investment
Partnership II L.P.
Gentlemen:
Reference is hereby made to that certain Agreement dated as of
October 27, 1994 (the "AGREEMENT") by and among each of you, Matthew
Oristano, Victor Oristano and People's Choice TV Corp. ("PCTV").
This letter is delivered to you by the undersigned stockholders
of Alda Communications Corp. ("ALDA CC") in confirmation of our
agreements as follows:
1. Effective upon consummation of the merger of Alda CC with
and into PCTV, with PCTV as the surviving corporation (the "MERGER"),
each of the undersigned stockholders of Alda CC joins in and becomes a
party to the Agreement as an "Oristano" thereunder for all purposes
thereof as fully as if each of the undersigned stockholders had been an
"Oristano" as an original signatory thereto.
2. The undersigned stockholders of Alda CC jointly and
severally represent and warrant to you that, in the aggregate, they own
of record, immediately prior to consummation of the Merger, all of the
issued and outstanding shares of capital stock of Alda CC.
3. Notwithstanding the changes to the Agreement provided in
paragraph 1 above, the parties hereto agree that the provisions
contained in Exhibit B to the Agreement ("Exceptions to Transfer
Restrictions") shall not be altered hereby to permit transfers of PCTV's
common stock in excess of the aggregate limitations contained in such
Exhibit B prior to the execution and delivery of this instrument.
<PAGE>
-2-
This letter may be executed in any number of counterparts, each of which
shall be deemed an original but all of which together shall constitute
one and the same instrument.
Very truly yours,
/s/ VICTOR ORISTANO
---------------------------------
Victor Oristano
/s/ MATTHEW ORISTANO
---------------------------------
Matthew Oristano
/s/ MARK ORISTANO
---------------------------------
Mark Oristano
/s/ MICHAEL ORISTANO
---------------------------------
Michael Oristano
Trust dated May 3, 1983 f/b/o Kelly Robert
Oristano
/s/ MATTHEW ORISTANO
By:------------------------------
Matthew Oristano, Trustee
/s/ MARK ORISTANO
By:------------------------------
Mark Oristano, Trustee
/s/ MICHAEL ORISTANO
By:------------------------------
Michael Oristano, Trustee
[Signatures Continued]
<PAGE>
-3-
Trust dated May 3, 1983 f/b/o Stacy Joan
Oristano
/s/ MATTHEW ORISTANO
By:------------------------------
Matthew Oristano, Trustee
/s/ MARK ORISTANO
By:------------------------------
Mark Oristano, Trustee
/s/ MICHAEL ORISTANO
By:------------------------------
Michael Oristano, Trustee
Joan and Victor Oristano Irrevocable
Gifting Trust under Agreement dated
December 28, 1995
/s/ JOHN R. MUSICARO, JR.
By:------------------------------
John R. Musicaro, Jr., Trustee
Marital Trust under Article III.B.1 of the
Joan M. Oristano Revocable Trust under
Agreement dated March 1, 1996
/s/ MATTHEW ORISTANO
By:------------------------------
Matthew Oristano, Trustee
/s/ VICTOR ORISTANO
By:------------------------------
Victor Oristano, Trustee
<PAGE>
