-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JylfhTS93UfRDs7xHbfsLY0KtVlSwULfqf/e+TTOk80AqQRiyKze83nX1iTDyHgL 3LuQsON8NLdMgQLm0JgXxw== 0000940180-99-000436.txt : 19990423 0000940180-99-000436.hdr.sgml : 19990423 ACCESSION NUMBER: 0000940180-99-000436 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19990422 GROUP MEMBERS: BAY HARBOUR MANAGEMENT LC GROUP MEMBERS: BAY HARBOUR MANAGEMENT, L.C. GROUP MEMBERS: DOUGLAS P. TEITELBAUM GROUP MEMBERS: STEVEN A. VAN DYKE GROUP MEMBERS: TOWER INVESTMENT GROUP, INC. SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: PEOPLES CHOICE TV CORP CENTRAL INDEX KEY: 0000903275 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 061366643 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-42913 FILM NUMBER: 99599221 BUSINESS ADDRESS: STREET 1: 2 CORPORATE DRIVE STE 249 CITY: SHELTON STATE: CT ZIP: 06484 BUSINESS PHONE: 2039257900 MAIL ADDRESS: STREET 2: TWO CORPORATE DR SUITE 249 CITY: SHELTON STATE: CT ZIP: 06484 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BAY HARBOUR MANAGEMENT LC CENTRAL INDEX KEY: 0001049310 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 593418243 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 777 SOUTH HARBOUR ISLAND BLVD CITY: TAMPA STATE: FL ZIP: 33602 BUSINESS PHONE: 8132721992 MAIL ADDRESS: STREET 1: 777 SOUTH HARBOUR ISLAND BLVD CITY: TAMPA STATE: FL ZIP: 33602 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 SCHEDULE 13D (Rule 13d-101) Information to be included in statements filed pursuant to Rule 13d-1(a) and amendments thereto filed pursuant to Rule 13d-2(a) PEOPLE'S CHOICE TV CORP. (Name of Issuer) COMMON STOCK, $.01 par value per share (Title of Class of Securities) 710847104 (CUSIP Number) STEVEN A. VAN DYKE TOWER INVESTMENT GROUP, INC. BAY HARBOUR MANAGEMENT, L.C. 777 South Harbour Island Boulevard, Suite 270 Tampa, Florida 33602 (813) 272-1992 DOUGLAS P. TEITELBAUM 885 Third Avenue 34th Floor New York, New York 10022 (212) 371-2211 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) April 12, 1999 (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(e), 13d-1(f) or 13d-1(g), check the following box. [X] Note. Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7(b) for other parties to whom copies are to be sent. (Continued on the following pages) (Page 1 of 9 Pages) 13D - ----------------------- --------------------- CUSIP NO. 710847104 PAGE 2 OF 9 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON STEVEN A. VAN DYKE I.R.S. IDENTIFICATION NO. OF ABOVE PERSON N/A - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS OO,PF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION UNITED STATES - ------------------------------------------------------------------------------ SOLE VOTING POWER - 0 - 7 NUMBER OF SHARES ----------------------------------------------------------- SHARED VOTING POWER 886,595 BENEFICIALLY 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER - 0 - 9 REPORTING PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER 886,595 WITH 10 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 886,595 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 6.9% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON IN,HC 14 - ------------------------------------------------------------------------------ 13D - ----------------------- --------------------- CUSIP NO. 710847104 PAGE 3 OF 9 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ NAME OF REPORTING PERSON Douglas P.Teitelbaum 1 I.R.S. IDENTIFICATION NO. OF ABOVE PERSON N/A - ------------------------------------------------------------------------------ CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP 2 (a) [_] (b) [X] - ------------------------------------------------------------------------------ SEC USE ONLY 3 - ------------------------------------------------------------------------------ SOURCE OF FUNDS OO 4 - ------------------------------------------------------------------------------ CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [_] 5 - ------------------------------------------------------------------------------ CITIZENSHIP OR PLACE OF ORGANIZATION United States 6 - ------------------------------------------------------------------------------ SOLE VOTING POWER -0- 7 NUMBER OF SHARES ----------------------------------------------------------- SHARED VOTING POWER 886,595 BENEFICIALLY 8 OWNED BY ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER -0- 9 REPORTING PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER 886,595 WITH 10 - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 886,595 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 6.9% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 IN, HC - ------------------------------------------------------------------------------ 13D - ----------------------- --------------------- CUSIP NO. 710847104 PAGE 4 OF 9 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON Tower Investment Group, Inc. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 59-2924229 - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS OO - ------------------------------------------------------------------------------ 5 CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) OR 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Florida - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 886,595 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY - 0 - ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 886,595 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 - 0 - - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 886,595 - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 6.9% - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON HC - ------------------------------------------------------------------------------ SCHEDULE 13D - ----------------------- --------------------- CUSIP NO. 710847104 PAGE 5 OF 9 PAGES - ----------------------- --------------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON BAY HARBOUR MANAGEMENT, L.C. I.R.S. IDENTIFICATION NO. OF ABOVE PERSON 59-3418243 - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS OO - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION FLORIDA - ------------------------------------------------------------------------------ SOLE VOTING POWER 7 NUMBER OF 886,595 SHARES ----------------------------------------------------------- SHARED VOTING POWER BENEFICIALLY 8 OWNED BY - 0 - ----------------------------------------------------------- EACH SOLE DISPOSITIVE POWER 9 REPORTING 886,595 PERSON ----------------------------------------------------------- SHARED DISPOSITIVE POWER WITH 10 - 0 - - ------------------------------------------------------------------------------ AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 11 886,595 - ------------------------------------------------------------------------------ CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES 12 [_] - ------------------------------------------------------------------------------ PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 13 6.9% - ------------------------------------------------------------------------------ TYPE OF REPORTING PERSON 14 IA - ------------------------------------------------------------------------------ Item 1. Security and Issuer. Common Stock, $.01 par value per share ("PCTV Common Stock") of People's Choice TV Corp., a Delaware corporation ("PCTV"). The principal executive offices of PCTV are located at 2 Corporate Drive, Shelton, Connecticut 06484. Item 2. Identity and Background. Bay Harbour Management, L.C. ("Bay Harbour") is a Florida limited company and a registered investment adviser under the Investment Advisers Act of 1940, as amended. Tower Investment Group, Inc., a Florida corporation ("Tower"), is the majority stockholder of Bay Harbour. Steven A. Van Dyke, a resident of Florida and a United States citizen ("Van Dyke"), is a stockholder of Tower. Douglas P. Teitelbaum, a resident of New York and a United States citizen ("Teitelbaum" and, together with Bay Harbour, Tower and Van Dyke, the "Reporting Persons"), is a stockholder of Tower. The executive officers and directors of Bay Harbour and Tower are as follows:
Name Address Occupation Place of Employment Steven A. Van Dyke 777 South Harbour Island investment Bay Harbour Boulevard, Suite 270 management Management, L.C. Tampa, Florida 33602 Douglas P. Teitelbaum 885 Third Avenue investment Bay Harbour 34th Floor management Management, L.C. New York, New York 10022
The principal business address of each Reporting Person is 777 South Harbour Island Boulevard, Suite 270, Tampa, Florida 33602, except that the principal business office of Teitelbaum is 885 Third Avenue, 34th Floor, New York, New York 10022. No Reporting Person has during the last five years (i) been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) 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 violation with respect to such laws. Item 3. Source and Amount of Funds or Other Consideration. From February 5, 1997 through March 3, 1999, Bay Harbour purchased in secondary trades on the open-market for certain of its managed accounts, 881,600 shares of PCTV Common Stock (the "Open Market Shares"), for an aggregate purchase price of $1,489,720. The source of the funds used by Bay Harbour to purchase the Open Market Shares were investment accounts managed on a discretionary basis by Bay Harbour. On March 24, 1998, Bay Harbour purchased in secondary trades on the open-market for certain of its managed accounts, 3,500 warrants to purchase 4,995 shares of PCTV Common Stock (the "Warrants" and, together with the Open Market Shares, the "Shares" ), for an aggregate purchase price of $209. The source of the funds used by Bay Harbour to purchase the Warrants were investment accounts managed on a discretionary basis by Bay Harbour. Item 4. Purpose of Transaction. On April 12, 1999, the Reporting Persons entered into a Stockholder and Option Agreement (the "Option Agreement") with Sprint Corporation ("Sprint") pursuant to which the Reporting Persons granted Sprint an option (the "Option") to purchase their shares of Common Stock ("Option Shares") at a price equal to $8.00 per share of Common Stock, as adjusted if necessary ("Option Price"). If the Option has not been exercised by Sprint within 10 days after the expiration or termination of all applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act and regulations thereunder, the Reporting Persons have the right to require Sprint to purchase the Option Shares at the Option Price. The above description of the Option Agreement and related matters set forth in this Item and in Item 6 are summaries, and are qualified in their entirety by reference to the complete text of such Option Agreement which is filed as an exhibit to this filing. Although the foregoing reflects activities presently contemplated by the Reporting Persons with respect to PCTV, the foregoing is subject to change at any time. Except as set forth above or in Item 6, the Reporting Persons have no present plans or intentions which would result in or relate to any of the transactions described in subparagraphs (a) through (j) of Item 4 of Schedule 13D. Item 5. Interest in Securities of the Issuer. (a) As of April 22, 1999, (i) Van Dyke beneficially owns 886,595 shares of PCTV Common Stock, which represent approximately 6.9% of PCTV Common Stock outstanding, (ii) Teitelbaum beneficially owns 886,595 shares of PCTV Common Stock, which represent approximately 6.9% of PCTV Common Stock outstanding, (iii) Tower beneficially owns 886,595 shares of PCTV Common Stock, which represent approximately 6.9% of PCTV Common Stock outstanding and (iv) Bay Harbour beneficially owns 886,595 shares of PCTV Common Stock, which represent approximately 6.9% of PCTV Common Stock outstanding based upon 12,923,817 shares of PCTV Common Stock outstanding as of March 25, 1999 as set forth in a 10-K filed on March 31, 1999 with the U.S. Securities and Exchange Commission. For purposes of disclosing the number of shares beneficially owned by each of the Reporting Persons, (A) Van Dyke and Teitelbaum are deemed to beneficially own all shares of PCTV Common Stock that are beneficially owned by Tower and Bay Harbour and (B) Tower is deemed to beneficially own all shares of PCTV Common Stock that are beneficially owned by Bay Harbour. (b) Each Reporting Person has (i) the sole power to vote or direct the vote of the 886,595 shares of PCTV Common Stock held by Bay Harbour; and (ii) the sole power to dispose of or to direct the disposition of such 886,595 shares of PCTV Common Stock; except that Van Dyke and Teitelbaum share with each other their voting and disposition power. (c) Information Concerning transactions in the Shares of PCTV Common Stock by the Reporting Persons is set forth in Exhibit III attached hereto, which is incorporated herein by reference. (d) The 886,595 shares of PCTV Common Stock held by Bay Harbour reported in this Statement are beneficially owned by Van Dyke, Teitelbaum, Tower and Bay Harbour for the benefit of certain investment partnerships and managed accounts over which Van Dyke, Teitelbaum, Tower and Bay Harbour control the power to (i) direct the voting of such shares of PCTV Common Stock and (ii) dispose of such shares of PCTV Common Stock. The limited partners of the investment partnerships and the investors in the managed accounts for which Bay Harbour acts as an investment adviser have the right to participate in the receipt of dividends from, or proceeds from the sale of, securities held by their funds or accounts, as the case may be. No such fund, single limited partner of any of such funds nor any investor in a managed account has the right to receive or the power to direct the receipt of dividends from, or proceeds from the sale of, shares of PCTV Common Stock reported in this Schedule 13D representing more than five percent of the outstanding PCTV Common Stock. (e) Not applicable. Item 6. Contracts, Arrangements, Understanding or Relationships with Respect to Securities of the Issuer. The Option Agreement sets forth certain terms and conditions under the Reporting Persons' continued ownership of the Common Stock. Under the Option Agreement, the Reporting Persons are prohibited from selling, transferring, assigning, pledging, hypothecating or otherwise disposing of or limited its right to vote in any manner any of its shares of Common Stock. In addition, the Reporting Persons have irrevocably appointed Sprint as their proxy to vote the Option Shares in any manner as Sprint, in its sole discretion, may see fit, at any annual, special or other meeting or action of the stockholders of the Company with respect to any issues brought before the stockholders of the Company. Except as described herein and by reference to Item 4 above, there are no contracts, arrangements, understandings or relationships among the Reporting Persons and Sprint with respect to any securities of the Issuer. Item 7. Material to be filed as Exhibits. EXHIBIT I Joint Filing Agreement, by and among Bay Harbour, Tower, Van --------- Dyke and Teitelbaum. EXHIBIT II Stockholder and Option Agreement, dated April 12, 1999, between ---------- Sprint and Bay Harbour. EXHIBIT III Information concerning transactions in the Shares effected by ----------- the Reporting Persons. SIGNATURES After reasonable inquiry and to the best knowledge and belief of the undersigned, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated as of: April 22, 1999 TOWER INVESTMENT GROUP, INC. By: /s/ Steven A. Van Dyke ----------------------------- Name: Steven A. Van Dyke Title: President BAY HARBOUR MANAGEMENT, L.C. By: /s/ Steven A. Van Dyke ----------------------------- Name: Steven A. Van Dyke Title: President /s/ Steven A. Van Dyke ----------------------------- STEVEN A. VAN DYKE /s/ Douglas P. Teitelbaum ----------------------------- DOUGLAS P. TEITELBAUM Exhibit Index ------------- EXHIBIT I Joint Filing Agreement, by and among Bay Harbour, Tower, Van --------- Dyke and Teitelbaum. EXHIBIT II Stockholder and Option Agreement, dated April 12, 1999, ---------- between Sprint Corporation and Bay Harbour Management. EXHIBIT III Information concerning transactions in Shares of PCTV Common ----------- Stock effected by the Reporting Persons. EX-99.(I) 2 JOINT FILING AGREEMENT Exhibit I Joint Filing Agreement The undersigned acknowledge and agree that the foregoing statement on Schedule 13D is filed on behalf of each of the undersigned and that all subsequent amendments to this statement shall be filed on behalf of each of the undersigned without the necessity of filing additional joint filing agreements. The undersigned acknowledge that each shall be responsible for the timely filing of such amendments, and for the completeness and accuracy of the information concerning it contained therein, but shall not be responsible for the completeness and accuracy of the information concerning the others, except to the extent that it knows or has reason to believe that such information is inaccurate. This Agreement may be executed in counterparts and each of such counterparts taken together shall constitute one and the same instrument. BAY HARBOUR MANAGEMENT, L.C. Date: April 22, 1999 By: /s/ Steven A. Van Dyke ----------------------------- Name: Steven A. Van Dyke Title: President TOWER INVESTMENT GROUP, INC. Date: April 22, 1999 By: /s/ Steven A. Van Dyke ----------------------------- Name: Steven A. Van Dyke Title: President Date: April 22, 1999 /s/ Steven A. Van Dyke ----------------------------- Steven A. Van Dyke Date: April 22, 1999 /s/ Douglas P. Teitelbaum ----------------------------- Douglas P. Teitelbaum EX-99.(II) 3 STOCKHOLDER AND OPTION AGREEMENT EXHIBIT II STOCKHOLDER AND OPTION AGREEMENT -------------------------------- THIS STOCKHOLDER AND OPTION AGREEMENT (this "Agreement") dated as of April 12, 1999, is entered into between Sprint Corporation, a Kansas corporation ("Sprint"), and Bay Harbour Management, LC, a Florida limited company, for its managed 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 power to vote 881,600 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, "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: 1. Certain Covenants. ----------------- 1.1 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. 1.2 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. 1.3 Public Announcement. Stockholder shall consult with Sprint ------------------- before issuing any 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. 1.4 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 disposed may not be sold, transferred, pledged, assigned, hypothecated, tendered or otherwise of in any manner without the prior written consent of Sprint or except in dispersed accordance with the terms and conditions of this Agreement. 1.5 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. 2. 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 $8.00 per Option Share (the "Option Price"); provided, however, if prior to -------- ------- the Option Closing, Sprint shall purchase any shares of the Company Common Stock for an amount per share in excess of the Option Price (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 for 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. -------- (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 -2- 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 ten 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. 3. 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 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. -3- 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. 4. 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. 5. 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 Stockholder of -4- 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. 6. Miscellaneous. ------------- 6.1 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. 6.2 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. 6.3 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. 6.4 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. 6.5 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. 6.6 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 -5- 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: Bay Harbour Management, LC 885 Third Avenue, 34th Floor New York, NY 10022 Attention: Doug Teitelbaum Telecopy: (212) 371-7497 with a copy to: Howard Smith & Levin 1330 Avenue of the Americas New York, NY 10019 Attention: Leonard Chazn Telecopy: (212) 841-1010 6.7 Equal Treatment of Option Holders. Simultaneously with the --------------------------------- execution of this Agreement, Sprint is entering into an agreement with the beneficial owners of not less than 1.2 million shares of the Company Common Stock, with the terms of such agreement being substantially identical to the terms of this Agreement. 6.8 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. 6.9 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. 6.10 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. -6- 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 H. Schell -------------------------- Name: Theodore H. Schell Title: Sr. Vice President BAY HARBOUR MANAGEMENT, LC for its managed accounts By: /s/ Douglas P. Teitelbaum ----------------------------- Name: Douglas P. Teitelbaum Title: Principal and Portfolio Manager -7- EX-99.(III) 4 INFORMATION CONCERNING TRANSACTIONS Exhibit III
Name of Purchasing Entity Date of Transaction Number of Shares Price Per Share - ----------------------------- ------------------- ---------------- --------------- Bay Harbour Management, L.C. 2/11/99 10,000 $1.51 Bay Harbour Management, L.C. 2/16/99 15,000 $1.49 Bay Harbour Management, L.C. 3/3/99 16,000 $1.22
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