UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
People's Choice TV Corp.
(Name of Issuer)
Common Stock, $.01 Par Value
(Title of Class of Securities)
710847 10 4
(CUSIP Number)
Matthew 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)
May 28, 1997
(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
----
Page 1 of 11 pages
<PAGE>
SCHEDULE 13D
- ------------------------------ --------------------------------
CUSIP No. 710847 10 4 Page 2 of 11 Pages
- ------------------------------ --------------------------------
- ----------- -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Matthew Oristano
- ------------ -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions)
(a) |_|
(b) |_|
- ------------ -------------------------------------------------------------------
3 SEC USE ONLY
- ------------ -------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) AF (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
1,206,635
NUMBER OF
-------- ---------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 43,065
OWNED BY
-------- ---------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 1,206,635
PERSON
-------- ---------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
43,065
- ------------ -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,249,700
- ------------ -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) |_|
- ------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.6%
- ------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
IN
- ------------ -------------------------------------------------------------------
<PAGE>
SCHEDULE 13D
- ------------------------------ --------------------------------
CUSIP No. 710847 10 4 Page 3 of 11 Pages
- ------------------------------ --------------------------------
- ------------ -------------------------------------------------------------------
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
Alda Multichannels Ltd.
- ------------ -------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions
(a) |_|
(b) |_|
- ------------ -------------------------------------------------------------------
3 SEC USE ONLY
- ------------ -------------------------------------------------------------------
4 SOURCE OF FUNDS (See Instructions) WC (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
888,827
NUMBER OF
-------- ---------------------------------------------
SHARES 8 SHARED VOTING POWER
BENEFICIALLY 0
OWNED BY
-------- ---------------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 888,827
PERSON
-------- ---------------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
0
- ------------ -------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
888,827
- ------------ -------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES (See Instructions) |_|
- ------------ -------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.9%
- ------------ -------------------------------------------------------------------
14 TYPE OF REPORTING PERSON (See Instructions)
CO
- ------------ -------------------------------------------------------------------
<PAGE>
Page 4 of 11
Introduction
This Schedule is being filed in order to report the acquisition of an
aggregate 441,600 shares of common stock, $.01 par value (the "Common Stock"),
of People's Choice TV Corp. (the "Issuer") by Alda Multichannels Ltd., a
Delaware corporation, through a series of purchase transactions which occurred
between May 22 and June 5, 1997 (the "Transactions"). Upon consummation of the
Transactions, (i) Alda increased its ownership of the Issuer's Common Stock to
an aggregate 888,827 shares, an amount in excess of 5% of that class of equity
security, and (ii) Matthew Oristano, a director and officer and the controlling
stockholder of Alda, acquired beneficial ownership of the 441,600 shares of
Common Stock purchased by Alda in the Transactions.
Item 1. Security and Issuer.
The class of equity securities to which this Schedule 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 Schedule is being filed on behalf of Alda Multichannels Ltd., a
Delaware corporation ("Alda"), and Matthew Oristano ("Oristano," and, together
with Alda, the "Reporting Persons").
Oristano is a director and officer of the Issuer and a director and officer
and the controlling stockholder of Alda. Oristano has a business address located
at 2 Corporate Drive, Suite 249, Shelton Connecticut 06484.
Alda is principally engaged in the wireless cable television business. The
address of Alda's principal business and principal office is c/o People's Choice
TV Corp., 2 Corporate Drive, Suite 249, Shelton, Connecticut 06484. Set forth
below is the name, position, residence or business address, present principal
occupation or employment (along with the name, principal business and address of
any corporation or other organization in which such employment is conducted) and
the citizenship of each of the executive officers of Alda, who together
constitute all of the directors of Alda:
<PAGE>
Page 5 of 11
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C> <C>
Principal Business of Address of
Name Position Address Occupation Employer Employer Citizenship
---- -------- ------- ---------- -------- -------- -----------
Victor Oristano Chairman c/o People's Vice Chairman Wireless Cable People's Choice TV U.S.A.
Choice TV Corp. of Issuer Television Corp.
2 Corporate Drive 2 Corporate Drive
Suite 249 Suite 249
Shelton, CT 06484 Shelton, CT 06484
Matthew Oristano President c/o People's Chairman and Wireless Cable People's Choice TV U.S.A.
and Secretary Choice TV Corp. CEO of Issuer Television Corp.
2 Corporate Drive 2 Corporate Drive
Suite 249 Suite 249
Shelton, CT 06484 Shelton, CT 06484
Mark Oristano Vice c/o People's Radio Announcer N/A N/A U.S.A.
President Choice TV Corp.
2 Corporate Drive
Suite 249
Shelton, CT 06484
Michael Oristano Vice c/o People's Law N/A N/A U.S.A.
President Choice TV Corp. Enforcement
2 Corporate Drive Officer
Suite 249
Shelton, CT 06484
</TABLE>
No Reporting Person nor any other person named above has, during the last
five years, been convicted in a criminal proceeding (excluding traffic
violations or similar misdemeanors), or been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and as a result of
such proceeding was or is subject to a judgment, decree or final order enjoining
future violations of, or prohibiting or mandating activities subject to, federal
or state securities laws or finding any violations with respect to such laws.
<PAGE>
Page 6 of 11
Item 3. Source and Amount of Funds or Other Consideration
Prior to May 22, 1997, Alda beneficially owned 447,227 shares of Common
Stock (3.5% of the issued and outstanding Common Stock). Alda purchased an
aggregate of 441,600 shares of Common Stock from May 22, 1997 to June 5, 1997
for an aggregate purchase price of $566,653.80. Such purchases were as follows:
Date Shares Purchased Price Per Share
May 22, 1997 1,100 $1.042
May 23, 1997 103,000 1.050
May 28, 1997 50,000 1.300
May 28, 1997 142,000 1.238
May 30, 1997 10,000 1.425
June 3, 1997 25,000 1.435
June 3, 1997 30,000 1.498
June 4, 1997 30,000 1.488
June 5, 1997 2,200 1.456
June 5, 1997 23,300 1.498
June 5, 1997 25,000 1.550
All purchases of Common Stock set forth above were cash transactions in
which Alda was the sole source of the consideration paid for the Common Stock.
Item 4. Purpose of Transaction
The Reporting Persons' purpose in purchasing the shares of Common Stock
referenced in Item 3 above was to acquire securities which they considered to be
undervalued. The Reporting Persons have no plans or proposals which relate to or
would result in any of the consequences listed in paragraphs (a) - (j) of Item 4
of Schedule 13D.
<PAGE>
Page 7 of 11
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 Shares Number of Shares
Beneficially Owned Beneficially Owned Aggregate Number Percentage of
With Sole Voting and With Shared Voting and of Shares Shares
Name Dispositive Power Dispositive Power Beneficially Owned Beneficially Owned
<S> <C> <C> <C> <C>
Alda Multichannels Ltd. 888,827 0 888,827 6.9%
Matthew Oristano 1,206,635(1) 43,065(2) 1,249,700(1,2) 9.6%(2)
Mark Oristano 79,357 26,452(3) 105,809(3) 0.8%(3)
Michael Oristano 105,809 26,452(3) 132,261(3) 1.0%(3)
Victor Oristano 107,500(4) 6,613(5) 114,113(5) 0.9%(4,5)
</TABLE>
1 Includes 112,808 Shares which Matthew Oristano owns individually, 205,000
Shares which Matthew Oristano has an option to acquire within 60 days of
the date hereof pursuant to stock option agreements and 888,827 Shares
owned of record by Alda, of which Matthew Oristano is President, a director
and the controlling stockholder.
2 The 43,065 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, 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 and 10,000 shares
issued to Alda Limited Partnership, the general partner of which is a
corporation controlled by Oristano.
3 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.
4 Includes 5,000 Shares which Victor Oristano owns individually and 102,500
Shares which Victor Oristano has an option to acquire within 60 days of the
date hereof pursuant to stock option agreements.
5 All of 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.
(c) None.
(d) None.
(e) Not applicable
<PAGE>
Page 8 of 11
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 2 to this
Schedule. Pursuant to the Blackstone Agreement, Victor Oristano and Matthew
Oristano agreed that they and their affiliates (including Alda) would not,
subject to certain exceptions, sell or otherwise transfer their shares of Common
Stock prior to September 30, 1999 so as to (i) reduce the number of shares of
Common Stock beneficially owned by Victor Oristano and/or his affiliates below
664,521 shares or (ii) reduce the number of shares of Common Stock beneficially
owned by Matthew Oristano and/or his affiliates below 437,227 shares. 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) 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) 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 restrictions 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 June, 1996 merger of Alda
Communications Corp. ("Alda CC") with and into the Issuer, all of the
stockholders of Alda CC (including Matthew Oristano, Victor Oristano, Mark
Oristano and Michael Oristano) entered into a Joinder Agreement dated June 27,
1996 (the "Joinder Agreement") with Blackstone whereby each of the stockholders
of Alda CC became a party to the Blackstone Agreement. The Joinder Agreement is
attached as Exhibit 3 to this Amendment.
<PAGE>
Page 9 of 11
Item 7. Material to Be Filed as Exhibits
Exhibit
Number Description
1 Agreement, dated as of February 5, 1998, between the
Reporting Persons relating to the filing of a joint Schedule
13D.
2 Agreement, dated as of October 27, 1994, by and among
Blackstone Capital Partners II Merchant Banking Fund L.P.,
Blackstone Offshore Capital Partners II L.P., Matthew
Oristano, Victor Oristano and Peoples Choice T.V. Corp.
3 Joinder Agreement, dated as of June 27, 1996.
<PAGE>
Page 10 of 11
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: February 5, 1998
/s/ Matthew Oristano
------------------------------
Matthew Oristano
ALDA MULTICHANNELS LTD.
By:/s/ Matthew Oristano
---------------------------
Matthew Oristano
<PAGE>
Page 11 of 11
EXHIBIT INDEX
Exhibit
Number Description
1 Agreement, dated as of February 5, 1998, between the
Reporting Persons relating to the filing of a joint
Schedule 13D.
2 Agreement, dated as of October 27, 1994, by and among
Blackstone Capital Partners II Merchant Banking Fund L.P.,
Blackstone Offshore Capital Partners II L.P., Matthew
Oristano, Victor Oristano and Peoples Choice T.V. Corp.
3 Joinder Agreement, dated as of June 27, 1996.
EXHIBIT 1
AGREEMENT
This Agreement is made as of the 5th day of February, 1998 between Alda
Multichannels Ltd. ("Alda") and Matthew Oristano ("Oristano").
The Parties hereto hereby agree that a single, joint statement containing
the information required by Schedule 13D under the Securities Exchange Act of
1934 with respect to the beneficial ownership of shares of Common Stock of
People's Choice TV Corp., a Delaware corporation, may be filed with the
Securities and Exchange Commission on behalf of each of Alda and Oristano.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
ALDA MULTICHANNELS LTD.
By:/s/ Matthew Oristano
------------------------------
Matthew Oristano, Chairman
/s/ Matthew Oristano
---------------------------------
Matthew Oristano
EXHIBIT 2
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 8. 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
<PAGE>
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
2
<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
3
<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.
4
<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
5
<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 18. 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 19.
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 20. 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
By: /s/ Matthew Oristano
-------------------------------
Name: Matthew Oristano
VICTOR ORISTANO
By:
--------------------------------
Name:
PEOPLE'S CHOICE TV CORP.
6
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By: /s/ Victor Oristano
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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
By: /s/ Mark T. Gallogly
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Name: Mark T. Gallogly
Title: General Partner
BLACKSTONE OFFSHORE CAPITAL
PARTNERS II L.P.
By: Blackstone Management
Associates II L.P., its
General Partner
By: /s/ Mark T. Gallogly
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Name: Mark T. Gallogly
Title: General Partner
7
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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
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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
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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
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EXHIBIT 3
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.
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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
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Victor Oristano
/s/ Matthew Oristano
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Matthew Oristano
/s/ Mark Oristano
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Mark Oristano
/s/ Michael Oristano
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Michael Oristano
Trust dated May 3, 1983 f/b/o Kelly Robert
Oristano
By: /s/ Matthew Oristano
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Matthew Oristano, Trustee
By: /s/ Mark Oristano
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Mark Oristano, Trustee
By: /s/ Michael Oristano
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Michael Oristano, Trustee
[Signatures Continued]
2
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Trust dated May 3, 1983 f/b/o Stacy Joan
Oristano
By: /s/ Matthew Oristano
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Matthew Oristano, Trustee
By: /s/ Mark Oristano
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Mark Oristano, Trustee
By: /s/ Michael Oristano
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Michael Oristano, Trustee
Joan and Victor Oristano Irrevocable Gifting
Trust under Agreement dated December 28, 1995
By: /s/ John R. Musicaro
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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
By: /s/ Matthew Oristano
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Matthew Oristano, Trustee
By: /s/ Victor Oristano
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Victor Oristano, Trustee
3
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